Changes in legal publishing

Last week, a dozen of the top American law journals announced their commitment to reducing the length of law review articles. The Joint Statement concerning this policy is available “here”:http://www.harvardlawreview.org/articles_length_policy.pdf. A number of journals have already adopted policies to implement the goals behind this statement. The so-called “Virginia Experiment”:http://www.virginialawreview.org/page.php?s=membership&p=announcements#length (see the link on Short-Article Policy), which began a year ago, sets a presumptive word limit at 20,000 words and effectively caps articles at 30,000 words. “Harvard Law Review”:http://www.harvardlawreview.org/manuscript.shtml#length has recently adopted similar language, with a 25,000 word preference and a 35,000 word limit. These policies will have serious implications for what is published at Virginia and Harvard. Far less constraining, but nevertheless significant, are policies adopted by “Columbia Law Review”:http://www.columbialawreview.org/information/submissions.cfm and the “University of Pennsylvania Law Review”:http://www.pennlawreview.com/submission.php, both of which have set presumptive word caps at approx. 35,000 words. Other journals will probably adopt similar policies in the near future.

From the perspective of academics in non-legal disciplines, these words caps may seem absurdly generous. Most peer-review journals won’t accept articles over 10,000 words. And, to be clear, these limits are ceilings. Most law reviews regularly publish “essays”—really just normal length articles—that are far below these numbers.

One would think that this is all relatively uncontroversial and rather long overdue. And there has been some positive feedback from legal bloggers. “Orin Kerr”:http://volokh.com/archives/archive_2005_02_07.shtml#1108060955 quotes the Joint Statement rather approvingly, and Larry Solum gives it a characteristic “very interesting!”:http://lsolum.blogspot.com/archives/2005_02_01_lsolum_archive.html#110788056452294809

Reactions elsewhere have been more critical. At the “Conglomerate”:http://www.theconglomerate.org/weblogs/, Victor Fleischer (UCLA Law) “argues”:http://www.theconglomerate.org/weblogs/archives/001171law_review_page_limi.php that law review articles have to be long because student editors aren’t educated enough to understand them without lengthy introductions. This view is echoed by Stephen Bainbridge (“here”:http://www.professorbainbridge.com/2005/02/why_are_law_rev.html) and also Solum (“here”:http://lsolum.blogspot.com/archives/2005_02_01_lsolum_archive.html#110788056452294809).

A few responses:

First, it is obvious that law students are not competent to evaluate certain types of articles. Many law professors who lack specialization in the relevant fields would be equally incompetent. But that can’t explain why law review articles average more than 30,000 words. Even if you write a 10,000 word introduction (the length of the introductory chapter for my doctoral dissertation), that leaves you with 20-30,000 words to make an argument. That’s two or three times the length of articles published in other fields.

Second, it doesn’t take 10,000 words to situate an article. Most articles, including technical pieces, just don’t need that kind of set-up. What’s more, a lengthy introduction won’t be of much use to an editor in evaluating the contribution of the article. And editors know that. They consult with faculty on articles that appear well-written but that they don’t fully understand.

Third, if an article is very technical, then it probably doesn’t belong in a general law review. There are specialized journals, some of which are even peer reviewed, that are more appropriate venues for publication.

Another canard regarding article length: student editors balloon articles with footnotes. This may have been true in the past, and I’m willing to assign some of the blame to student editors who are footnote happy. At this point, though, faculty should hold editors to word length policies by resisting the addition of notes where they aren’t necessary. If anything, the Joint Statement should provided additional leverage on this front. That’s assuming, however, that students are primarily responsible for ridiculously long footnotes. And I’m increasingly skeptical about that. I’ve spent the last year watching editors at Virginia attempt to cut footnotes (especially those with massively redundant citations). Their efforts have met with strong resistance from some authors. Once you’ve invested in so much work researching an article, and once you’ve written it up, it’s hard to let things go. I’m sure there is enough blame here to go around, but, as I’ve argued “before”:https://www.crookedtimber.org/archives/002740.html explanations for the extraordinary length of law review articles are not confined to the predilections of student editors.

The Joint Statement should go a long way toward debunking the idea that student editors prefer more “substantial” articles. It’s just not true. We would much rather publish shorter pieces that make their points and move on. There is a change of thinking that has happened about all this. It has been taking place for a few years now. The Joint Statement reflects that change, as do the policies of the journals mentioned above. A lot of deliberation went into that announcement. It isn’t easy to coordinate between the leading journals of a dozen of the leading law schools. That they were able to come together on this issue should be some indication of how pervasive the problem is and how resolute the journal editors are in meeting it.