March 19, 2007

posted by Daniel J. Solove

The article itself contains another explanation: the workload of the judges. It is possible that in years past more judges read through law reviews as they would newspapers and magazines. They stayed up on the current legal theories as they would current legal events. Given their workload, and as you suggest a proliferation of journals, they may not have the time to do so any longer. If judges read journals more frequently, they may know some of what they would want to cite without having to look for it on a case-by-case basis.

Just a theory...

"The academy needs a system where it recommends the cream of the crop." In other fields, that system is called "peer-reviewed journals." The editors of those journals are typically accomplished academics whose decision to accept an article in the journal is a form of certification that the article is worth reading. The underlying problem here is that student law review editors lack the perspective to identify articles worth reading.

Huh. It sounds like you do agree with the proposed reasons, and just restated them.

Also, 08:45, I don't think anyone has ever seriously suggested that student-run journals publish the highest-quality scholarship. The problem is that law professors have so little incentive to shift to peer review- they'd have to shoulder the burden and, what's worse, they couldn't inundate the student law review editors with their dreck.

Solove/Kerr basically got it right, though both tried putting it more diplomatically: most law review articles are worthless. Student editors can't be blamed for sifting through the crap and picking the crap authored by the most prestigious name.

Having recently (and thankfully) escaped the law review world, I must disagree with the argument that there is simply too much noise for anybody to find the good articles. First, as a previous poster noted, law journals are not peer reviewed. Articles are selected by the third-year students who, despite three years of training, still know little about the law. These students are easily impressed by star-power names and trip over themselves to publish the same people.

The authors frequently sought after are those who have perfected the game; people who have the budget to appear at every conference and shamelessly re-print the same article with minor tweaks to the hyper-coloned title, while citing primarily to their own work, creating a weak chain of authority, with the ultimate link being the author's own initial, generally unfounded conclusions.

The academy itself looks down on what are called "practitioner pieces," that is to say, journal articles that might actually be useful. Rather, the most desirable articles are those that expose new "paradigms".

If you doubt this, attend a symposium at any major law school. But take the sick bag from the seat pocket in front of you when you leave the plane, because you are about to be exposed to a sickening display of inbred sycophancy, self-congratulatory back patting, and mind-numbing double speak.

The goal of the legal academe today is to detach itself to the greatest extent possible from the legal profession. Which is why law schools now seek out PhDs rather than JDs and create public policy programs rather than practicums. The argument that the bench has turned its back on the academe relies on a misunderstanding as to the direction of causality.

haven't read the NYT article, but another reason is probably that there are so many more case opinions out there. They're more authoritative than law review articles, and sometimes it seems you can find a case to support almost any proposition.
When you can't find one, you might look to a law review.

Anonymous -- Despite the oft-stated sentiment that peer reviewed journals are the solution, in my experience, I haven't found articles in peer reviewed journals to be significantly better than those in regular law reviews.

There's also the common belief that dozens of years ago, law review articles were better and more practice-oriented. There was, for sure, more practice-oriented scholarship (treatises, etc.) and probably a few more practice-oriented pieces. But I've read many older law review articles. They are often shorter than those of today, but I haven't otherwise noticed a dramatic difference. Many are still quite theoretical. Many aren't very good either.

The biggest change with law review articles from the mid-twentieth century to today, in my opinion, is that there are just more of them.

I think the issue with peer review is that the few law journals that use it are specialty journals, which limits the number of submissions.

I see three basic problems with many law review articles: 1) they're larded up with too many extraneous footnotes, in an attempt to pay obiesance to other scholars; 2) they rely on too much jargon that doesn't translate to the harried judge; and 3) they don't bother to cite judicial opinions.

As to the last point -- influence works both ways. If scholars want to be heard by judges, they also need to listen.

Does anyone else feel that citing cases in law reviews would be so much easier if we had better tools than lexus or westlaw to find pertinent cases? Compared to other areas of academia, these services leave much to be desired.

Perhaps another problem is the dominance of law and economics in the current scholarship, and its tendency to rely on crude assumptions, inaccurate psychological models, and "just so" story-telling. As Barbara Bergmann suggests for economics, perhaps legal scholarship could benefit from a "new empiricism."

http://www.bepress.com/cgi/viewcontent.cgi?article=1228&context=ev

Perhaps article titles these days also make courts reluctant to cite them.

Ever since the Crits blew the doors open in the 1970s and 80s, legal academics and student note writers have freighted hundreds, if not thousands, of otherwise solid articles with chatty, juvenile, punny, jargony, ridiculously argumentative, or otherwise awkward titles.

This isn't entirely a bad thing. No doubt many in the academic audience enjoy the fun. But I suspect that an undignified title often convinces a wavering judge (or law clerks) not to cite an article in a published judicial opinion -- even if the judge/clerks profited greatly from reading the article (as is often the case).

Here's a comment on the state of law reviews, from someone thoroughly disgusted with them:

"There are two things wrong with almost all legal writing. One is its style. The other is its content."

Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38, 38 (1936). If law review articles are generally of poor quality, it doesn't appear to be a new problem.

Anyone can do a case crunch. And many do such crunchers. They are called treatises and student notes.

Bit surprised that the judges came out so vehemently against the law reviews. Many clerks used to use regular good ole articles, treatises, student notes, etc, at least as a starting point to locate cases.

Um, perhaps the judges are a bit disconnected from the research?

I thought I had read that blogs may also be filling whatever possible gap is present. In other words the theory and other work to which Volokh refers is valuable but maybe not, as he indicates, be aimed at judges. In addition, it seems that law professors now use blogs and the Web to offer quick arguments regarding cases and in a way separate their academic writing from pieces that may have more readily apparent practical applications. This idea has been offered in a few places.

http://3lepiphany.typepad.com/3l_epiphany/2006/10/blogging_as_sch.html

and

Online Legal Scholarship: The Medium and the Message http://thepocketpart.org/2006/09/06/balkin.html

In short, it could be that the material written by law professors and most useful to judges and practioners is just in a different place than it has been in the past.

Mike O'Shea,

Law articles have titles that would make them unlikely candidates for citation?

Why, I have no idea what the "fuck" you could be talking about.