Does the World Need More “Traditional Legal Analysis” in Law Review Notes?
posted by Dave Hoffman
Phil Telfeyan, the Harvard Law Review’s Avenger, Moot Court Winner, and milliner’s dream, has a new note out in the HLR: “Never Again Should a People Starve in World of Plenty“.
Paul Horowitz, noting that Telfeyan also wrote a previous heterodox case comment [see update #2 below], says the controversy about odd writings from the HLR is worth “a two-paragraph blog post and not more. And I am not knocking the observation that injustice is bad; heaven forfend.” But David Bernstein, writing on Volokh, seems to disagree. He writes: “If there is any traditional legal analysis in this Note, it’s not obvious (though I admit that I didn’t read the entire thing).” It’s implied that this absence is a bad thing. [Update: Glenn Reynolds jumps on the bandwagon.]
I have read the whole thing (it was a breezy 22 pages). Apart from an embarrassing error on the first page, I can’t say that I agree that David. On page three (@ 1888) Telfeyan talks about Rawls’ theory of justice; later on, he even cites a case (at note 15, Griffin v. Illinois). But in the bigger picture, the argument sounds pretty ordinary to me: legal rules and, in particular, our professional choices as lawyers, should be infused by equality principles. The driving force is Peter Unger’s work about poverty and our responsibility to alleviate it. It wasn’t a particularly revolutionary piece of writing, but what do people really expect from a student note?
More broadly, as the title of this post suggests, I question whether it is desirable that every law student note play the same doctrinal tune. Law reviews used to be more heterogeneous: case comments, advice on incorporating a business, and high-theory mingled together. Only in the last few decades did we arrive at the modern form of blockbuster article of doctrinal theory (or, today, statistically motivated theory) and, at the back of the book, a series of mini-mes: notes, rarely cited, that followed the same conventions and engaged in the same basic project as the academics’ articles. As I’ve suggested before, I think that the modern student note, chock-full of “traditional legal analysis,” is basically a waste of students’ and readers’ time. This is particular true at schools where student editors will almost certainly never become academics – that is, almost everywhere. Instead, reviews should consider significant changes in their current practices – moving toward collaborative treatises, or, perhaps more radically, legal writing that non-lawyers would want to read. (As a bonus, it could lead more folks to read professors’ boring, but traditional, work in the front of the book.) Shucks, maybe law reviews should follow the example of the Green Bag, and re-write the bible from a lawyer’s perspective.
[Update: Someone claiming to be Telfeyan is blogging about the note. Another entrepreneurial idea for law reviews - blogs about student notes!]
[Update #2: I've been informed by a reliable source that (1) Telfeyan didn't write the earlier Phillip Morris case comment; and (2) there is a dispute as to whether he wrote the posts on ATL under the name "Harvard Law Avenger". More if I hear more.]