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

In his recent article “Against the Law Reviews”:http://www.legalaffairs.org/issues/November-December-2004/review_posner_novdec04.html, 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”:http://www.habitat.org/ (or, for lawyerly types, “Buildable Hours”:http://www.buildablehours.com/), 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:

bq. 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”:http://webapp.utexas.edu/blogs/bleiter/archives/002377.html. Though he doesn’t say much about where changes are supposed to come from, or who is repsonsible for all this.