Posner on Law Reviews
Law review articles about law review articles are a perennial favorite, and Richard Posner's recent article in Legal Affairs (which has the Virginia Law Review all abuzz with righteous indignation) is more of the same. Unsurprising for those who know me and my feelings about academic legal writing, I agree with almost all of his criticisms. The key paragraphs:
The result of the system of scholarly publication in law is that too many articles are too long, too dull, and too heavily annotated, and that many interdisciplinary articles are published that have no merit at all. Worse is the effect of these characteristics of law reviews in marginalizing the kind of legal scholarship that student editors can handle well�articles that criticize judicial decisions or, more constructively, discern new directions in law by careful analysis of decisions. Such articles are of great value to the profession, including its judicial branch, but they are becoming rare, in part because of the fascination of the legal academy with constitutional law, which in fact plays only a small role in the decisions of the lower courts. Law reviews do extensively analyze and criticize the constitutional decisions of the Supreme Court, but the profession, including the judiciary, would benefit from a reorientation of academic attention to lower-court decisions. Not that the Supreme Court isn't the most important court in the United States. But the 80 or so decisions that it renders every year get disproportionate attention compared to the many thousands of decisions rendered by other appellate courts that are much less frequently written about, especially since justices of the Supreme Court are the judges who are least likely to be influenced by critical academic reflection on their work.
I have spoken thus far of the law reviews as publishers of scholarly articles submitted to them. But in addition, of course, they publish articles (usually and misleadingly called "notes" or "comments") written by the members of a law review's staff. The opportunity to publish provides valuable experience. This, plus the rising quality of law students, may explain the enormous increase in the number of law reviews�law schools that used to have just one now often have two and sometimes three or four. My only criticism of the student-written portions of the law reviews is that the students have a propensity to write about "hot" subjects, like partial-birth abortion, gay marriage, and capital punishment, to the neglect of equally important commercial subjects that cry out for informed doctrinal analysis.
But the need for reform centers on law reviews' role in publishing professorial articles, and the biggest obstacle to reform is that the present system provides useful training for law students and signals the quality of particular students to prospective employers. The law review editors tend to be the elite of the student body; prospective employers know this and so the elite students tend to be sorted to the elite firms. This service function of law reviews is so important, and the rapid turnaround of submissions is so valued by law professors, that I do not anticipate fundamental reforms, desirable as they may be in the abstract. Ideally, one would like to see the law schools "take back" their law reviews, assigning editorial responsibilities to members of the faculty. Students would still work and write for the reviews, but they would do so under faculty supervision. Their care in citation checking would be valued by the authors, but the tendency toward poor judgment and thoughtless impositions on authors would be held in check. Doubtless it is too much to hope for such a reform.
I think one could say that Posner directs too much of his attack against students, and not enough against his peers and academic institutions. That said, I don't find much to disagree with.
UPDATE: A colleague from VLR responds:
I would be fine with his article on law reviews if only he didn't come off so arrogantly. The system might be far from perfect, but where does the blame really lie? At some points in his article, it seems like Posner actually places blame on students. It's not our fault that we've inherited this system - if professors wanted to take away control over law reviews, it's not like we could stop them. But Judge Posner is fond of biting" commentary, so we should expect nothing less.
I will also note for the record that under the leadership of our current editor-in-chief, we do try to cut down on footnotes rather than add to them, and we no longer require parentheticals. In addition, we've made an effort to accept shorter pieces.
There you have it. Not a cure-all for the structural defects of the system, but at least a sign that maybe law students are not really the cause of the problem, and thus not the proper target for attack.