Law Review Editing: Some Suggestions for Reform

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24 Responses

  1. Orin Kerr says:

    I suspect the problem is that appropriate citing requires judgment. Most law students haven’t seen enough articles to have developed that judgment, and most law professors don’t care enough about citations to exercise that judgment on their own. So you end up with an impasse, with journal editors going overboard out of an abundance of caution and authors annoyed with them going overboard.

    Incidentally, my most recent favorite example of journal excess with citations was in the editing process with a journal last year. The article offered an amendment to Rule 41 of the Federal Rules of Criminal Procedure, and I asked the journal to reprint the text of the Rule as an appendix for easy reference. When the article came back for editing, an editor had footnoted the header of the Appendix, which read “Appendix: Federal Rule of Criminal Procedure 41″ with a footnote that read, “Fed. R. Crim. Pro. 41.” To be fair to the journal, they weren’t sure if it was needed, and they were happy to take it out when I pointed out it wasn’t. But I still thought it was pretty funny.

  2. Anon Prof says:

    Putting the article through numerous rounds of editing only to have the second edits conflict with the first. Changing one thing just to change it back? Who has the time for that? Almost don’t care what rule is chosen, so long as it is consistent…

  3. Articles Ed says:

    The problem with your first citation example is that it is an improper usage of a signal. Don’t use the signal there, because the text directly supports your position. No parenthetical is necessary.

  4. Jason says:

    As Articles Ed says, the completely inane use of signals by most profs may be what bothers journal editors the most. “See” is /not/ a general catch-all signal. The Bluebook does actually define what “see” means, and that ought to be followed.

    To the main post, though: it’s interesting that you blame these complaints on the Bluebook. Can you point to the rules in the book that require these results? Perhaps if editors actually followed the Bluebook (which has as its express prime principle exactly the “point of a system of citation” that you mention) instead of their own common-law gap-filler ideas, the process would actually be smoother.

  5. Orin Kerr says:

    As Articles Ed says, the completely inane use of signals by most profs may be what bothers journal editors the most. “See” is /not/ a general catch-all signal.

    But isn’t this the result of a change in the BlueBook in the last decade? If I recall correctly, the version in place in the mid-1990s taught that everything that was not a direct quote needed a “see” signal. That was changed in a later edition of the Blubook around 2000, but almost all of today’s professors were trained with an earlier version of the Bluebook that used a different rule. I think law professors usually use the rules from the version of the BlueBook in effect when they learned the BlueBook; it’s not so much that profs ignore the BlueBook, as that they don’t relearn all the rules when the whiz kid 2Ls who write the BlueBook decide to change the rules every few years.

  6. Eric Goldman says:

    My #1 pet peeve: when students “correct” my work to introduce their own errors.

    As for practices, I think each LR editorial team needed to determine what value they are trying to add in the citation and editorial work they are doing. If students don’t think to do this on their own, faculty advisors should prompt them. I find far too many students have no idea why they are doing the work asked of them, which leads to robotic and inflexible application of “rules.”

    Dan, I like your suggestion that the purpose us to “ensure proper attribution and to assist the reader in finding the necessary sources” but I would phrase it very differently. I think the goals are, in order:

    1) Minimize liability for publishing tortious text

    2) Avoid academic dishonesty by the author

    3) Ensure accuracy of the factually verifiable statements made by the author.

    We might add a fourth goal of publishing copy that conforms with the general rules of English. (Frankly, that’s optional in my book). We might add a potentially conflicting goal that the editors preserve the author’s voice, a goal that sadly gets overlooked way too often.

    If student editors focused on executing against these admittedly limited goals, they would realize what a huge percentage of their work is wasted, and all of us would be better off.

    Eric.

  7. skooby says:

    Two observations, from an outgoing law review articles editor:

    1. The example you give for overuse of parentheticals is indeed ridiculous. When the proposition is directly stated in the text, there’s no need to add an explanatory parenthetical. In fact, given the (supposed) quality of the law reviews in which you typically publish, I’m shocked that the articles editors aren’t able to tell that a parenthetical is useless in that situation, and I’ve got to wonder if you’re not exaggerating (if you’re telling the truth and you’ve had this experience, really, I’m shocked). Far more common, in my experience, is the addition of explanatory parentheticals where the author cites a case or string of cases for a general proposition. For example: the author will write, “The circuit courts of appeal have said/the Supreme Court has said X in a number of cases,” followed by a string cite. While X is the common thread that ties all these cases together, the facts of each case are different enough that the applicability of the core proposition was repeatedly questioned. Speaking as a reader, parentheticals are often extremely helpful in this situation because they help discern the real extent of the common/general proposition of the cases, and, similarly, help single out specific cases that apply to an analogous fact situation I may be dealing with.

    2. I DO also hate the repeated use of footnotes when citing to a single source (particularly when there are two cites to the same source in a single sentence, something that should never happen)–but, again, they often serve a valuable purpose. Sure, the repeated use of “Id.” vis-a-vis a two-page-long case is annoying. But as you said, citations aren’t just to ensure correct attribution, but also to assist the reader. And when you’re dealing with cases that are anywhere from 50-200 pages long, pin citations are REALLY helpful for a reader.

    So I agree with your points, to some extent. But I think the case against footnotes and parentheticals isn’t as strong as you make it out to be.

  8. Cathy says:

    While there may be such a thing as overuse of parentheticals, as an articles editor I at least wanted to see them in the draft. Too many authors cite to things whose connection to the assertion is anything but obvious. We can’t always read your mind; that’s what the footnote’s for, so we can see later what had been going on in there. The parenthetical not only can help out the later reader, but we as source coordinators also often desperately need the hint… This is especially true if you’re not using a pin cite – I once had to read a whole book to figure out what it had to do with the author’s sentence. Please please please don’t do that to your editor…

    In fact, think about it this way. While to you it’s all about *your* paper, to the law review/journal it’s about ensuring an appropriate quality hits the printer with a process that’s manageable for the students doing it. It’s a pretty massive workload under the best of circumstances, so help them out, when you can. And who knows, maybe it’ll even help your papers get accepted in the first place if the editors can see right away that it won’t kill them to get it ready for print.

  9. skooby and Articles Ed,

    I really don’t understand the parenthetical rule — it makes no sense to me — and thus my example might not be correct. The fact that there is a rule for parentheticals strikes me as silly, and most professors who have forgotten the inanities of the Bluebook don’t remember some of the finer distinctions between when to use a parenthetical and when not to. The rule should be simple: Use a parenthetical only when it contains information that readers will need.

    I’ve changed my example a bit to hopefully address your objections.

    Eric,

    I generally agree with your points. But I think it important to distinguish between textual editing and citations. In many cases, I’ve been quite pleased with many of the substantive and textual suggestions editors have made. Occasionally there have been issues, but most of the time, I’ve been quite fortunate and have had editors who are respectful of my style, purpose, and meaning. At the end of the day, this depends not so much on what rules are followed as in whether the editors are smart, diligent, have common sense, and able to recognize what the author is trying to do.

    The thing that bothers me the most are the citation issues. These are often done mechanically, and without much judgment.

  10. Eric Goldman says:

    Based on my logic, the natural conclusion is that citation work adds very little value. Thus, the time/energy spent on the citation process is typically a major waste of time for all concerned. Eric.

  11. amateur says:

    On a slightly different tack, while I have found excessive footnoting (whole pages dedicated to footnotes are my favorite) annoying while reading many law review articles for research purposes, I do find myself wishing there was a works cited page at the end of the text. I know this is unorthodox and by no means do I want to remove full citation from the footnotes – I like it there – but there are several reasons I wish there was a works cited page (in no particular order):

    - vetting an article for whether its worth reading, offers anything new (If I know the subject fairly well, I can judge the approximate value of an article to me from reading the abstract/table of contents and someone’s source list)

    - going back to an article in search of a passage/reference that I didn’t originally note but later realize is relevant

    - finding sources for my own reading/research and/or checking someone’s use of a reference (copying down a reference from tiny footnotes spread across many pages in a lot more tedious and annoying that marking relevant articles in a single list to later look up/check)

    Has this occurred to anyone else? Does anyone agree? Of course this would add a few pages, and will never be done b/c it hasn’t been done, but hypothetically…

  12. Jeff V. says:

    I agree that law reviews sometimes get overzealous, and I especially disagree with the practice of requiring footnotes for almost every sentence. But parentheticals often clarify things for readers who don’t understand the author’s topic as well as the author does.

    Your revised example about NYT v. Sullivan supports this point. A reader who had heard of NYT v. Sullivan wouldn’t need the parenthetical to understand that the reason that you think it makes it harder for public officials to prevail is that it adopted the actual malice standard. But a reader who hadn’t heard of NYT v. Sullivan would be saved a substantial amount of time by the parenthetical—they’d have a much better idea of which idea in that case you were referencing. This isn’t very helpful to most people, since most readers of law reviews have heard of NYT v. Sullivan, which is a major case. But most footnotes deal with cases that are much more obscure, meaning that the majority of readers actually would benefit from a quick explanation.

  13. Don Clarke says:

    Let me add my voice to those who find law review editors “correcting” things that aren’t mistakes. I guess I’ve learned to expect that people will replace the correct “composed of” with the incorrect “comprised of” (yes, it’s incorrect: look up “comprise”), because they don’t know that they don’t know. But what excuse can there be for changing my correct spelling of the name of a Japanese author? A person who spoke Japanese would know that my spelling was right, and a person who doesn’t speak Japanese has no business correcting my spelling without checking first with someone who does speak Japanese. My favorite example is the editor who saw my reference to an article by Bebchuk, apparently figured that nobody could possibly have a name like that, and decided I must have meant Lucien Babcock. (I should add that in many other respects the law review in question did a very good and conscientious job.)

  14. Scott Moss says:

    My favorite “silly parenthetical” story: In discussing how one constitutional theory never has been tested in an actual case, I called them “theorists in search of a case” and made an analogy in the main text to the “characters” in Pirandello’s play, “Six Characters in Search of an Author.”

    The editors wanted a parenthetical explaining the “holding” of the play. They didn’t use the word “holding,” but they actually wanted a parenthetical.

    I just said no.

  15. Bart Motes says:

    The parenthetical issue, I agree, is pretty lame. It comes straight from the Bluebook, of course, which suggests that there should always be a parenthetical. Generally, I think that more information is better than less, but there are limits. The forms that the Bluebook demands are needlessly complex as well. There should be a pretty uniform basic form for citations of non-institutional authored materials, for example, regardless of whether they are a book, LR, or other publication.

    One thing that frustrates me about authors, on the flip side, however, is when they make misleading citations. Example: author cites to a case. We search for the case and find that it is unpublished. Go through various databases, search the court website etc. So we contact the author for the case. Turns out that they never had it in their possession and never read it. They were relying on another law review article. For god’s sake, cite to the law review article, not to the case. It’s misleading and if the other law review article got it wrong, third parties may be even less likely to discover it when they find your law review article affirming its conclusion on apparent first hand basis.

    Introducing an element of peer-review into law reviews and reducing the mindless busy work that the law review process inflicts on everyone would be great.

  16. I wonder, can anything can be made of the lack of peer review prior to publication in most US law journals? In jursidctions where pre-publication double-blind peer review is the norm, I sense that student editors perceive their role somewhat differently. To be sure, students are sometimes a tad overzealous. But north of the border student editors don’t seem to suffer from the same infatuation with footnoting widely accepted facts or incorporating parentheticals or even mini-essays into footnotes. Most students tend to defer (as they should) to the expert referees’ comments on the adequacy of the references, not to mention articles’ substantive arguments.

  17. Jason says:

    Thanks to Orin for the clarification on the definition of “See” – I’m far from old enough to know anything other than the 18th ed. of the Bluebook, so I hadn’t realized that. (Though I will add that I’ve seen at least one young prof (’03 law school grad) use “see” in the way I alluded to.)

  18. PK says:

    I actually think it would be useful to occasionally have cites for the otherwise bald assertion that “there are no cases on point X.” Clearly, that means the author is aware of no cases on point X, but what did he do to verify that? A westlaw search? His general knowledge of the field? A survey of friends? Nothing?

  19. Next Year's Art. Editor says:

    As the Lead Articles Editor for my law review for next year I appreciate the post. My question is, if I think that something would be helpful but not required how do I let you know that? I don’t want to be annoying to professors but I also want to help make my school’s law review and the professor’s work the best it can possibly be.

    Also, I go to a pretty low ranked school, how do professors choose where to publish? Is it just the first to accept the article or do you try and publish at the highest ranked school?

  20. Anonymous says:

    As a former Executive Editor on the Law Review, I often found that the toughest part of the editor/author dynamic was the author’s failure to hold up his or her end of the bargain. Admittedly, our strict adherence to the Bluebook was sometimes a source of tension. But it was the author’s failure to do an adequate job citing his work that caused the biggest problems.

    Professor Solove, your points are well taken; however, the problem goes beyond overzealous footnote and parenthetical insertion. My journal was a “light editing” journal, so we did our best to add citations only when absolutely necessary, while respecting each author’s style and voice. Unfortunately, my co-editors and I learned quickly that many authors (especially well-established and older authors) think of the journal staff not as citation checkers but as citation generators.

    We received pieces that presented excellent view points and strong arguments—but contained almost no pin cites. Not incorrect pin cites. No pin cites. In some of the more egregious cases, we asked the authors to provide them, and the response was always, “That’s your job.” True, it’s our job to verify your assertions, but you can’t just tell us what book to start reading (to borrow another poster’s example). Similarly, in a number of cases, it became clear that (1) a legal assertion required substantive support, (2) the author knew it required support, and (3) the author expected the editorial board to locate the support. Once again, we edit the substance—we don’t produce it.

    Whether the authors are resentful of the admittedly inexperienced editors’ intrusions or merely too busy/apathetic to do the necessary work, I can’t say. (Perhaps simple laziness is the answer. In a culture where name recognition is a major selection criterion and where authors frequently publish multiple versions of the same argument with little more than the title changed, that possibility isn’t so far fetched.) Regardless, on average, an author’s refusal to do his job at the drafting stage makes the publication process as tedious as the young editors’ worship of an increasingly arcane citation manual.

    One last thing: according to the 18th edition of the Bluebook, parentheticals are encouraged for some (see also, cf., compare, but cf., see generally) but not all signals (most notably, see). Professor Kerr, if your premise is correct (that older editions mandated use of parentheticals), shouldn’t the authors be the ones inserting parentheticals after a see signal—and not the students using the new edition?

  21. jane says:

    Ugh, as a recent law review staffer, this piece brought back terrible memories of hours wasted adding needless pincites and redundant parentheticals. It should be completely up to the author whether a pincite or parenthetical is provided. Other than making sure that quotations of exact language are properly attributed, law reviews should just butt out of pincites and parentheticals altogether. It should be up to the author how “helpful” he feels he needs to be to his reader.

    And another thing — the obssession with “verifying assertions” via footnoting is not merely annoying, but it also suggests the students’ disheartening lack of understanding about what it means to do humanities scholarship. Law isn’t science; you can’t always prove a proposition by citing to certain words in cases.

  22. Max Kayden says:

    Orin Kerr in the first comment hits the nail on the head. The Bluebook is a standards format written by people who have little or no standards experience and little or no experience in abstraction skills like object-relational mapping or object oriented programming. There should be no element of judgment. Look at MLA which uses the general format citation composed of (sorry I don’t remember the order) author, title, author’s sponsor/company, volume, section, web address, publishing date, pages used, and if any of these are not available you just leave them off. There’s no judgment involved.

    The point of a citation is to uniquely identify a reference. An article is always an article and the attributes of that article are virtually the same, regardless of where it’s published or how many pages it has. The internet (which I’m pretty sure is here to stay) makes a lot of these citation formats simply obnoxious. Courts are having trouble distinguishing between blogs and online newspapers — why are there two sections for citing the two differently? Our social constructs say that a book is just an article with a lot of pages (stupid delineation for a citation format change). And why is the citation any different if I get an article into SSRN or X-school’s law journal? They still have all the same attributes, yet the bluebook cites are different. The attributes of an article are

    – the author

    – the publishing body (whether it’s Concurring Opinion blog, Harvard Law Review, New York Times, or SSRN, they’re all publishing bodies)

    – the title of the article

    – the publishing date

    – a web address (and date accessed).

    If something is not available for this, you should just leave it off. Bluebook “stores” the type of publication in the citation format, and the type of publication nowadays requires a judgment call. Thus two rational people can have two different opinions on what a citation format to use. What kind of standard is this?

    Signals themselves are also judgment calls. On the scale of references, we have a non-signal, a See, and then a See generally. Then there’s the dichotomy of See also, a list of citations without any signal, and Cf. It’s a complete judgment call, and open to lots of disagreement.

    Judgment calls are worthless to debate over. We’ve all turned in a paper/motion and a supervising attorney/professor/editor turned around and said (s)he didn’t like the way something was phrased, and you changed it solely because it was a judgment call and you ceded to your superior. Citation standards are supposed to be above this, and bluebook certainly is not.

    If you want a realistic analysis of bluebooking costs (and why a substantial number of highly respectable attorneys ignore the bluebook standards entirely), think about it this way. You’re a $200/hour attorney, and writing an 8 page article means you’re making 30 footnotes, and each footnote takes you 3 minutes to bluebook properly. That means you’re spending 90 minutes on bluebooking, and thus it just cost $300 to bluebook. Now, that’s best case scenario, because your paper is probably longer than 8 pages, probably has way more than 30 footnotes, it takes more than 3 minutes to verify each citation (on average), and as a respectable attorney, you’re billing out way more than $200/hour. When you take this into account, it’s like saying, “Would you rather sit there thumbing through a book with obnoxiously overlapping rules, or work on a motion to bill out so you can buy a new big screen plasma TV?” The respectable attorney is going to include enough footnote information to get the point across so that someone else can locate the same article.

    I’ve had people complain because an italics spanned over a period, or a footnote didn’t have a period at the end of it. You have the time wasted on the complaint, and then the time wasted on fixing that complaint, when neither of these activities promoted the goal of citation — providing a unique identifier for later location of a source. Will the italics or lack of a period make it so I can’t find a source later? Of course not. Why do grown rational adults dispute these kinds of non-issues.

    In simplest terms, as long as the reader can locate the source that I’m referring to, the footnote is sufficient. Hitting the rest of the formalities is simply not worth a big screen plasma TV.

  23. Adam says:

    Regarding Scott Moss’ story:

    I think a parenthetical there would have been very helpful. I have never read this play and have no idea how it has anything to do with this notion of “theorists in search of a case.” As far as I’m concerned, it’s unquestionable you need a parenthetical there: otherwise, people like me won’t get the point.

    There’s a fairly serious risk, it seems to me, of people drawing “analogies” to abstruse works that few people have read, in order to give their articles an air of sophistication (personally, I think this is both how Nietzsche got famous and why he is often cited and studied by political theorists, philosophers, and other academics; see also anything written by Lyndon LaRouche). Which is not to say you’re doing that here. That said, there seems to me to be substantial value in a parenthetical explaining the connection between your point about legal doctrine and this play I’ve never heard of; a skeptical reader like myself is more inclined to trust you.

  24. Law Student Cite Checker says:

    The stories of authors simply making statements and expecting the cite checkers to find the support are definitely true. I had an author directly cite a book for a specific proposition, as in book y says x, and so had to read the entire 800 page book y to check for direct support which i did not exist. i dont really have time to read dense 800 page tomes.

    The area where excessive citation seems to creep in is where authors are using one work for multiple paragraphs of facts. You assume that all of these facts came from the same source but they werent cited.

    You def would not need a parenthetical for the first crossed out example. Its a direct support and so a see cite is not needed. See cites do seem to be used as catch-all cites. Authors know the case supports what they are saying but cant find a quote or close paraphrase so the add a see.