Don’t Blame the Law Students: A Reply to Posner

by Micah on October 25, 2004

In his recent article Against the Law Reviews, Judge Richard Posner repeats a number of long-standing criticisms directed against student-edited law journals. There isn’t really anything in his article that he hasn’t said before in other places.[1] Posner thinks students choose the wrong pieces, do a bad job of editing them, and generally diminish the quality of legal scholarship. He thinks the system of legal publishing should be reformed by placing law journals under the control of faculty. Although Posner is certainly right to question the lack of peer review in legal academia, he (1) puts the blame for the current system in the wrong place, (2) underestimates the ability of students to do quality work, (3) ignores the opportunity costs to law students of working on journals, and (4) proposes only meager reform.

Before continuing, a couple disclaimers: first, although I currently work for, and indeed help to manage, a student-edited law review, the views expressed are solely my own. I do not pretend to represent the views of my law review or any of its members.

Second, in addition to being an editor on a law review, I am also part of what Posner calls “the rarefied set of Ph.D.s who go to law school for a J.D.” (I don’t pretend to speak for any of them either.) I don’t think having a doctorate gives me any special expertise in my capacity as an editor at the journal. But it probably explains my strong sympathy for Posner’s claim that legal academia should move to a peer review system.

I think most reflective law students recognize the advantages of a peer review system and understand the many absurdities of the system in which they work. But they do their best, and they deserve some recognition for trying to improve legal scholarship. The students who inherit this system are under a lot of pressure to participate in it if they want to remain competitive. They are only in positions of power on law reviews for a very short time, and, once they enter those positions, their work load is tremendous. They are also understandably concerned about upholding the reputations of their respective institutions and the law schools with which they are affiliated. From my experience, students perform their jobs admirably. Nothing I say here should put their commitment to quality scholarship in question.

With those disclaimers, here are some thoughts on Posner’s criticisms:

1. Posner spends too much time blaming law students for not being educated or experienced enough to recognize good articles and improve them. He should have spent his allotted space blaming tenured faculty for not doing enough to change the current system. Towards the end of his article, Posner says, “One would like to see the law schools ‘take back’ their law reviews, assigning editorial responsibilities to members of the faculty.” That sentence is conveniently vague. The “law schools” should take back their law reviews? Who, exactly, are the law schools? Posner must know that the only people with power to implement reform are tenured faculty. But that won’t happen because the inertia behind the current system of student-edited reviews is ultimately based on the interests of the faculty. Rather than place the blame where it lies, Posner suggests that law students and law firms are at fault. Both value the current system because it provides a signaling mechanism for students and their employers. But if law reviews didn’t exist, students would find other ways to signal their competitiveness. The dean’s list would matter more, or moot court, or public service, or work in various legal clinics—which much more closely approximate work at most law firms than does editing a law review.

Consider another example of Posner’s blame-shifting. Posner faults students for the ridiculous length of legal articles. But most articles are submitted at lengths well over 25,000 and frequently over 40,000 words. Authors sometimes submit articles that would otherwise be considered full length book manuscripts at 80,000 words or send “two-part” articles that are easily the length of an average monograph. Posner complains that student editors add unnecessary footnotes to articles. But when a submission is already 40,000 words long, and often badly researched or cited (even by the most minimal standards), what’s another 5000 words below the line? The article was already 30,000 words too long. And if the piece really ought to be 50,000 words long, then it’s time to start working on a book.

It’s true that law professors submit long articles in part because law reviews will publish them. But law reviews publish short articles, too. Some law reviews have started to institute word caps, but many law professors do what they can to avoid this and will negotiate at length with editors for more words. Faculty, especially those without tenure, frequently argue that they need more space to incorporate the many suggestions they receive while work-shopping their articles. They have strong incentives to expand the length of their articles. Having invested so much in a 40,000 word manuscript, why not add 10-20,000 words for the sake of completeness? But consider what would happen if tenure committees announced that they were no longer interested in reading articles over, say, 10-15,000 words. The average length of law review articles would drop dramatically. Moreover, such a move might foster a change in the norms of legal academic publishing. What counts as a good “tenure” article has become the standard for all law review articles: 70 single-spaced pages and 250-350 footnotes. That is the target. Change the tenure standard, and everything else changes with it.

2. Posner overstates the decline in quality that results from student editing. Good quality material is being published. His problem is that everything else gets published, too. But, at worst, this creates a large efficiency cost. I think Posner would be hard pressed to give examples of good articles—i.e., those that might otherwise have been accepted by peer reviewed journals—that (a) didn’t get published, or (b) were made worse by the process. Most authors simply refuse to make changes they think will diminish the quality of an article. After all, what real leverage do student editors have? At worst, students don’t improve articles. Still, many law professors will tell you that, at top tier schools, editors do a decent job of providing comments. They spend far more time thinking about arguments than many peer review referees, and the time tradeoff often translates into quality comments. That isn’t always true, but, then, it isn’t always true that peer review comments are helpful, either.

3. Posner is so obsessed with the academic costs of the law review system that he doesn’t consider the opportunity costs to students. He complains that, “[t]o student editors, the cost of an author’s time is zero,” but does Posner value the time of students? An average top-tier law review has a staff of about 80 students. Instead of engaging in pro bono work or their own research, those students spend—and this is a very conservative estimate—7000 hours per year editing the work of law professors. Now multiply that across the dozens, if not hundreds, of law journals out there. Imagine if all that time were spent building houses for Habitat for Humanity (or, for lawyerly types, Buildable Hours), or in clinical environments learning to practice law, or, for those so inclined, in graduate-level legal research.[2] There are great opportunity costs, and, if we’re assigning blame, then the faculties and administrations of law schools should accept their fair share.

4. Finally, consider Posner’s proposal for reform:

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.

Posner’s idea is that students will still do all the thankless grunt work of researching for professors. They just won’t have any control over it anymore. But I assume this new system would continue to confer prestige on top students. Otherwise, few of them—perhaps (to indulge in a bit of Posner’s cynicism) only those who need recommendations to continue as legal academics—would do the work. Now, one might argue that Posner is simply recommending what currently holds in other academic disciplines: graduate students do research for their professors. But there are large differences between most graduate students (especially Ph.D students) and most law students at top-tier schools. First, law students pay nearly $50,000 a year to go to school. That’s a lot of money to spend researching for professors you don’t even know. Second, they have much less time in school than graduate students. Arguably, that time could be much better spent learning how to be a good lawyer, or working in one’s community, which, in turn, advances the legal profession’s commitment to public service.

Posner’s suggestion of reforming law reviews into 80-person research staffs for professors is a meager proposal for reform. Why not go farther? Just abolish law reviews altogether in favor of a peer review system. Assign prestige to students who do excellent work in the classroom, in clinics, in public service, or in their own research. Imagine this: professors do their own research, check their own cites—or pay people to do it for them. As Posner says, “Doubtless it is too much to hope for such a reform.”

Posner doesn’t actually give any plausible suggestions for realistic reform. He just thinks faculty should take over. If that’s unrealistic, and he obviously thinks it is, then maybe he could have suggested something more constructive. If student-edited law reviews are here to stay, then our energies are better focused on more modest changes to the current system. Consider five possibilities: (1) articles should be limited, even if arbitrarily, to no more than 10-15,000 words, including footnotes. (Anything longer makes quality editing difficult, even for teams of well-intentioned students. Who volunteers to edit a 45,000 word article for a total stranger?); (2) faculties should volunteer to review articles (and to their credit, all the faculty I have worked with have been very supportive in reviewing submissions); (3) law reviews should streamline their editing policies (e.g., by eliminating silly requirements for parentheticals, as Posner suggests), (4) law reviews should move to blind review and (5) perhaps even to single-submission policies. These last two changes would be difficult to accomplish because of collective action problems. They would also delay publication by months, but both would improve the overall quality of publications. These sorts of reforms, some of which are being implemented piecemeal by different journals, are within the realm of possibility. Faculty can encourage them, but not by telling students that they aren’t cut out for the work they do. That doesn’t move the ball forward. It just makes good students feel bad about doing jobs that everyone—including the academy, the bar and the bench—expects them to do.

Calls for abandoning law reviews are counterproductive unless faculty are committed to occupying the field. It may be lamentable that law school faculties and administrations are unwilling to confront the large scale collective action problems they face in the current law review system. No top tier school is willing to dismantle its law journal(s) for fear of disadvantaging its students, upsetting alumni, and eliminating all that free labor. But there are other options. Legal academics can establish peer-review journals in areas where they don’t already exist (something which Posner has done quite successfully), or they can work with students to make much needed changes. Given his view that student-edited law journals are going to be around for the foreseeable future—a prediction about which I am actually far more pessimistic—it is unfortunate, and somewhat ironic, that Posner ignores more pragmatic prospects for reform.

fn1. How could I resist? See Richard Posner, The Future of the Student-Edited Law Review, 47 Stanford L. Rev. 1131 (1995).

fn2. Brian Leiter seems to agree. Though he doesn’t say much about where changes are supposed to come from, or who is repsonsible for all this.

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1

Kieran Healy 10.25.04 at 11:26 pm

it is unfortunate, and somewhat ironic, that Posner ignores more pragmatic prospects for reform.

Also a bit ironic that he seems not to be diagnosing the distribution of costs, benefits and blame here. Maybe he should take a course in whatchacallit, Law and Economics.

2

y81 10.25.04 at 11:29 pm

I am not a Ph.D, just a J.D., and in private practice. I think (basically agreeing with Micah) that most of Posner’s criticism is off base.

First, although it is true that articles in non-legal journals are generally shorter, often much shorter, than law review articles, I am not sure they are better, at least not based on reading the sociology and history journals which I read. A lot of the articles seem to involve minimal research, and unsurprising conclusions, crammed into some currently trendy analytical framework (e.g., “difference feminism”). Additionally, there is a lot of interdisciplinary work in sociology and history, but it is not clear that the sociology is always good history, or vice versa.

Second, Posner suggests that law reviews would be more useful if they published doctrinal analyses of commercial law topics. I agree that, to a practitioner, most law review articles are useless, but surely this result wouldn’t change at all if the faculty edited the journals in addition to writing them. I don’t see how student editing is relevant to this issue.

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Jonathan Edelstein 10.25.04 at 11:49 pm

Posner overstates the decline in quality that results from student editing.

I’ll agree with that, at least anecdotally. I’ve published in both student-edited and peer-reviewed law journals [FN1], and the student editors were generally much more careful and thorough. Sometimes they were a bit too careful in demanding citations for generally-known facts or principles, but I think that’s better than letting errors go unquestioned. My peer-reviewed article contained at least two mistakes that I noticed later, and that probably would have been caught by student editors.

At any rate, Posner isn’t the first to cry foul over student-edited law reviews. Articles making the same point appear every few years (usually in a student-edited publication), and they’ve never generated enough of an outcry to force any changes in the system. For those who absolutely can’t stand student-edited publications, peer-reviewed journals do exist, so complaints about their absence are greatly exaggerated.

[FN1] “Peer-reviewed” is probably a misnomer in my case, because I’m not a member of a law faculty. On the other hand, I’m no longer a student.

4

Reg 10.26.04 at 1:14 am

Reading Posner’s article, I didn’t see that he blamed students for the problems. Students come across as the victims: hapless clogs in the badly designed system. As a 3L on a top 20 journal, I concur in everything he said. Students can’t judge the merit of most articles and length and jargon become a proxy. Student editing usually is hilarious and atrocious. Students aren’t at fault for this, its the system’s fault. And those responsible for the system deserve the blame. I thought Posner made this relatively clear.

Greater faculty control is the right answer, and lack of control is irrelevant to most on law review anyway, as the decision on what to publish isn’t usually made by more than a handful of students.

My biggest beef with Posner is his failure to blame the Blue Book for some of the problems with student editing. The thing is horrible, and Posner himself violates it in his parenthetical examples. Everybody knows parentheticals must start with present participles (or be a quotation).

5

Kate Nepveu 10.26.04 at 2:20 am

I also worked on journals when I was in law school, actually on two–the un-adjectived school one, and a less-well-known one that I was more personally committed to.

It’s true that I sometimes felt unsure when deciding on submissions, even after doing my best to research the subject. However, as other people have said, once we’d accepted a piece, I worked very hard to strengthen it and make actual useful contributions–and to not piss off my authors! (Both of which took up *enormous* quantities of time.) The editor on my own student writing (anyone want 21K words on special verdicts in criminal jury trials?) did the same and succeeded.

I _liked_ editing. If the only thing I would get to do on a law journal is proofread and source cite, I’d have said “blow this for a lark, I’m going to do another clinic.” What’s more, I think a lot of the best and most motivated students would do the same–I noticed when I was supervising sourcecites that the many of the best sourceciters ran for editorial positions the next year.

Or, shorter, “AOL.”

6

Thomas 10.26.04 at 2:30 am

Posner’s right, and, further, the fact that Posner says what he says may push us a bit further down the road to his being the consensus view.

If Posner’s view becomes the accepted one, then articles in the law-and-____ world would be published either in a peer-edited journal, and taken seriously, or published in student-run law reviews, and dismissed accordingly.

7

greglas 10.26.04 at 3:28 am

Good critique.

One major downside of the current process that you notice (and which Judge Posner fails to notice) is that the submissions are not blind-reviewed. So there’s some potential that students will want to publish mediocre articles by major names from major schools, potentially leading to a scholar/celebrity feedback effect. Not sure how often it happens, but the potential is clearly there.

But overall, isn’t it kind of like shooting fish in a barrel to argue that student-run journals aren’t as good as professor-run journals might be?

But there are counter-arguments. As quirky and unorthodox as it is to have students current learning the law selecting the “best” articles at the most competitive reviews, I personally kind of like it. One “benefit” of this weird student-run system: because of it, most professors accept that publication in a top review is a very hit-or-miss process, and that great stuff will often show up in Podunk L. Rev. and that fashionable nonsense will often show up in Harv. L Rev.

So within a disciplinary area, there’s generally less significance attached to a placement in a particular journal, and more weight attached to the quality of the article. You can’t simply use the journal name as a proxy for quality — but why would you want to do that anyway?

I strongly disagree with Posner, though, about the benefits of student editors. While I had one horrific experience years ago where an editor actually introduced a slew of errors and didn’t provide a redline, most students editors are careful, courteous, and genuinely engaged with the article. Almost always, the work comes back better from editing (or at least no worse), and I think part of the reason scholars like to have their works published in the top journals (other than tenure) is that those journals generally improve the work.

A former VLR AE.

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Reg 10.26.04 at 3:54 am

“So there’s some potential that students will want to publish mediocre articles by major names from major schools, potentially leading to a scholar/celebrity feedback effect. Not sure how often it happens”

All the time. When reviewing articles, what we first looked at was the author and where the author was previously published. Then we’d skim the thing, usually have a slightly better idea about the article, and try desperately to guess whether anybody might ever actually read or cite the article.
Usually we’d just wait for authors to call and ask for an expedited review. If the person’s article was being published in a journal we thought was okay on a topic we needed to be well rounded, we’d bump it up and give it an offer.

Really, there isn’t a good way to review articles when they come in hundreds and hundreds at a time.

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Jackmormon 10.26.04 at 4:21 am

I’m coming at this from the point of view of an ABD in a humanities field, and so I have a lot of questions for you lawyers, all of which pretty much fall under the category of: What purpose do these articles serve for the profession?

do lawyers read them regularly, cite them, follow their suggestions for fields or arguments of interest?

how influential are these journals to the state and direction of the law?

Do these articles carry any degree of authority? What is their authority compared to actual judicial decisions? Are these sorts of articles cited in decisions?

What kinds of lawyers submit articles? do practicing lawyers submit as well as the academic-track lawyers?

Are there good student reviews? Are there also peer- and blind-reviewed law journals?

When I first started graduate school and my law school friends were talking about editing the school law review, I was really envious: they’re actually starting the work of their profession! they’re in the thick of it! But I also realized the downsides: my law school friends spent a lot of their time editing these journals (time of course that I was spending teaching needy undergraduates…well, and also serving as flunky under admittedly great minds). Law school still seems from a PhD’s perspective to be a mad crash course (what is it? three years?), necessarily resulting in some boilerplate work.

Of course, my solution to the problem of substandard articles in both the legal and academic realms would be to abolish the twice-a-year (or whatever it is exactly) article-publication requirement for tenure.

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Jonathan Edelstein 10.26.04 at 4:42 am

do lawyers read them regularly, cite them, follow their suggestions for fields or arguments of interest?

Speaking only for myself, I don’t read academic journals regularly, but I do search them on LEXIS whenever I’m researching an unfamiliar topic.

how influential are these journals to the state and direction of the law?

Depends on the article, journal and author. Given that, articles tend to be most influential where judicial precedent is thin or where there is dissatisfaction with the prevailing rule, and least influential where the precedent is firm.

Do these articles carry any degree of authority? What is their authority compared to actual judicial decisions? Are these sorts of articles cited in decisions?

Academic law review articles obviously don’t have controlling weight, so they aren’t equal in authority to court decisions from within the same jurisdiction. On the other hand, they are often strong persuasive authority, and are given some weight by the courts, particularly in areas where the state of the law is still developing. As authorities go, a well-argued law review article is probably as good as an out-of-state case, and courts do cite them frequently. (In the Second Circuit, at least, law review articles are one of the factors a court is supposed to consider when deciding an unsettled issue of state law.)

What kinds of lawyers submit articles? do practicing lawyers submit as well as the academic-track lawyers?

Well, I do.

Seriously, most of the articles in academic law reviews are authored by faculty or students, but practitioners are also represented. Government lawyers and partners at white-shoe firms often write journal articles to polish up their gravitas, and judges are also frequent contributors. Practitioners’ articles are more common in bar journals, which are published by professional associations rather than schools and have a more practical focus, but they do appear in academic journals.

Are there good student reviews? Are there also peer- and blind-reviewed law journals?

I’m not sure about blind review, but some American law schools publish peer-reviewed journals (e.g., the Journal of Criminal Justice). Outside the United States, peer review is much more common; for instance, my sole peer-reviewed article was published in Australia.

There are good student-edited journals, and they’re more common than many professors think. I’ve always had good experiences with student editorial boards, and found that they were very serious about producing good articles. People like Posner also underestimate what students can bring to the table; many have had professional careers before law school and can criticize from experience. I suspect that many of the problems (some) professors have with student-edited journals has more to do with their own refusal to listen to criticism than any flaws in the editorial system.

11

Thomas 10.26.04 at 5:45 am

Jack, in response to your question: There are faculty-edited (which isn’t to say peer-reviewed or blind-reviewed) publications out there. Posner’s own University of Chicago Law is home to three of the most prominent, which isn’t surprising. ( The Journal of Law and Economics, Journal of Legal Studies, and Supreme Court Review are the three I’m thinking of.)

12

Rob 10.26.04 at 1:48 pm

Posner is clearly right that there is a problem, although I am not experienced enough of US law schools to say whether his prescription is the best one.

You might wish to compare US journals to British law journals.

If you look at, say, the LQR or the CLJ and compare them with HLR or YLJ you’ll see how much the study of law and what is published has diverged. In Britain journals are not edited by students. In some ways main stream British journals most closely resemble the HLR of 50 years ago. The issues dealt with are not, usually, of the highly theoretical kind but are more relevant to practice.
The loss of the connection between academic law and law in practice has been exacerbated by the editorship of the law journals by students who prefer ‘sexy’ topics. Usually ‘Law and …’ rather than Law.
In a legal system such as the US with 50 different jurisdictions the loss of careful doctrinal critique being provided by the academy is a disaster.

13

v. 10.26.04 at 3:41 pm

I like the discussion, but I think it still doesn’t focus enough on the main cause of the problem with law reviews: the laziness of many (not all) law professors. I cannot help but giggle when I read Posner’s call for profs. to “take back” the law reviews. The last thing a typical law professor wants to do is get involved with the grubby work of running a law review (yes, I know some do at Chicago, but that’s rare). Actually administering a law review involves a great deal of drudgery, so why not let bright students do it? It is more fun, and probably easier, to spend time writing articles, then send them off and let law students fix them up, check them, correct the inevitable mistakes, and send them to the printers. There doesn’t seem to be any structural reason why law profs couldn’t take over running journals — lord knows historians, sociologists, scientists, etc. all run theirs — but my guess is law profs benefit too much from the current system for it to change.
And while we’re on the topic, one more point (from a former Articles Editor at a top-15 review): many law review articles are, believe it or not, greatly improved by law student editing. I can think of two articles off the top of my head, both published in my law review during my year as editor, which came to the review as a great idea buried in a morass of simply bad writing. A lot of editing turned these into good, and eventually widely cited, articles. Of course, we never heard a word of thanks from either author after publication (in my year publishing 6 issues, we received a thank-you for our work from exactly one law prof, out of close to 20 published, which also tells you something about law profs).
Sorry to go on, but serving as an Articles Editor gave me a jaundiced view of many (again, not all) law professors, and it just kills me to see professors turn around and complain about the shortcomings of students running law reviews.

14

Jackmormon 10.26.04 at 5:58 pm

Thanks for the careful responses. It sounds to me that the focus of any attempt to change law journals should be on the genre of acceptable articles (change submission standards regarding length, footnotes, style) and on faculty responsibilities to their departments and fields (what do law professors do when they’re not actually teaching–or blogging?).

15

Anon 10.26.04 at 9:13 pm

It’s the feedback effect that’s troubling to me as a faculty member at a decidedly non-name-brand law school, especially in combination with the phenomenon that reg describes. I’ve got an article circulating now that I feel very good about, and since I’ve heard from relatively few journals (something like twenty percent of the journals I sent it to after 9 weeks) I have this nagging sense that it’s sitting on a lot of desks in the “we’ll think about it harder when we’re asked to expedite” pile (including perhaps at UVa), and I don’t know what to do about it except try to make it prettier and re-submit in March.

But let me ask this of folks: Would it be unseemly to follow up with some of the journals to say, Hey, if you haven’t already decided to reject this without letting me know, this is really pretty good and you ought to take a close look? (And perhaps to offer a few reasons why, such as “Professor X said so”?) It certainly wouldn’t have put me off back when I was involved in the process, but I’ve long since learned that I’ve got a pretty high tolerance for things that bother others.

16

Wiz Zee 10.27.04 at 6:39 pm

Peer review ain’t all its cracked up to be, either. From my experience, plenty of CRAP is published in some of the most esteemed scientific publications in the world (think Science). Not to mention that “peers” often have axes to grind those in their field.

17

Howard D 10.27.04 at 7:19 pm

7,000 hours of work per year by law review staffers (ie, over 19 hours every day) doesn’t sound like a “conservative” estimate.

18

Wiz Zee 10.27.04 at 7:53 pm

I believe the 7000 hours a year was describing the entire law review. That is an EXTREMELY conservative estimate.

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