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What Could Law Students Do With 2 Million More Hours a Year?

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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22 Responses

  1. Mike Zimmer says:

    I am old school, I guess, because I think my law review experience helped me in my thinking and my writing. If you are thinking of things that are a large waste of time and money, how about bar exams? As a proud beneficiary of Wisconsin’s diploma privilege, I think that, unless some good study proved otherwise, it is safe to assume that the level of practice in Wisconsin is in no way inferior to it in any other state.

    So, if that is true, what other than tradition and anticompetitive impulses justify the huge amount of time, money, and opportunity costs are burned up by law graduates studying for and taking bar exams.

    Replacing the bar exam with something useful — say, supervised representation of litigants who otherwise would be pro se — would be a tremendous service and would give the students something in value for all of their time, effort and lost opportunity costs.

  2. Dave Hoffman says:

    Mike
    I’m not saying that journal membership is inefficiently spent time for everyone! Just for most students.

    Bar exam prep is an enormous expense, which a cynic would justify as a way to increase lawyer salaries by decreasing lawyer supply. Can that same claim be made of journals?

  3. class of 05 says:

    1. The signaling function probably contributes to the spread of journals, even if the spread of journals diminishes the signaling function.

    2. Despite the original post’s point (1), I think placing articles in certain journals still helps a professor’s chances at tenure. So long as professors care where their articles get placed and aren’t willing to do peer review, the journals will probably remain. Otherwise it’s just a bunch of drafts on the internet.

    3. The ABA is a “sucking force” in general.

    4. If I hadn’t done journal work, I probably would have tried to write more, or I would have worked on developing a hobby.

  4. Orin Kerr says:

    Dave writes: “Anecdotal evidence suggests that the worth of the credential is in decline.”

    But assuming that is true, isn’t the credential still worth something to students? And if students find that the credential is valuable to them, doesn’t that provide a pretty significant reason to keep the journals?

  5. Dave Hoffman says:

    It is worth something to some students. But surely there are more efficient ways of signaling, aren’t there? At least at the vast majority of journals and schools. And we could create another credential to strive for, no?

  6. Micah Schwartzman says:

    I asked the same question in 2004 (when I was an editor). I suspect we’ll still be asking it 10 years from now, and probably then some.

    http://crookedtimber.org/2004/10/25/dont-blame-the-law-students-a-reply-to-posner/

    Also, I think (4) above is wrong. At top schools (aside from maybe Yale), the credential is worth a lot to students, especially in the clerkship market.

  7. Dave Hoffman says:

    Micah

    Yes, I know, an old topic.

    The credential is worth something, especially on the flagship journals. But it’s a mistake, I think, to view the world from the position of a law review editor at a very rich institution. There are literally tens of thousands of law students who work for barely read secondary journals at non-elite schools. Are they spending their time well?

  8. Micah Schwartzman says:

    Agreed — we’re talking about a small percentage of the total population of editors. But probably still north of 1000 students each year gain a real advantage. For them, the value of the credential isn’t declining. If anything, it’s probably increasing, especially where other signals (especially grades) have become weaker at top institutions. (And was the credential for non-flagship journals stronger in the past than it is now?) Anyway, it’s a relatively small point. I was just reacting to your claim in (4) above. I don’t think your poll would go as predicted.

    Of course, (4) could be wrong, and everything else you say right. Here I’m probably disagreeing with Orin above. Just because students value the credential doesn’t make it valuable. In other fields, students don’t run journals, and somehow those fields manage to generate signals for the quality of their students.

  9. An interim step would be to eliminate the Blue Book and replace it with a simpler form of citation. You could probably cut the number of hours spent in half.

  10. Matt Bodie says:

    I’m frankly offended at a lot of the conventional wisdom thrown around here like it’s established fact. It’s these kind of half-cocked blog posts that demoralize people who are working very hard at something that is, in fact, important. Law reviews — and not just “elite” ones — publish the large bulk of what we as law professors do. It’s easy and cynical to say that law reviews suck and students don’t know what they’re doing, etc., etc. But law students do know a fair amount, and if they don’t know more, then it’s our fault. Law reviews are a tremendous opportunity for the academy to not only train future lawyers but also inculcate the value and values of scholarship. I could go on, and on, and on, but I’ll just drop a link:
    http://journaloflaw.us/00%20Opening%20Remarks/JoL1-2,%20OR1-2,%20Bodie.pdf

  11. DHgate says:

    In my opinion, there is no course or activity that is a waste of time. Everything havs its meaning for existing. The more you hate one thing, the more you should practise on it.

  12. Dave Hoffman says:

    A few things:

    1. To Matt: it’s certainly not entirely students fault that journal membership is inefficiently spent time. Whether students do a good or a bad job of picking articles (and it’d be difficult to get a strong handle on that question without some external measure of quality), the question I’m interested interested in is whether they might spend their time in a better way.

    2. Now, to answer that, we’d have to ask: what do students get out of journal membership? Maybe (as your article asserts) they get to participate in the scholarly community. They also get a job credential. And they are supposed to get training in writing. I don’t think that they get much training at most schools. And I assert that the credential is worth a lot less to most students than we’d like it to be.

    3. But, as OK points out, it’s valuable to some, and as Micah points out, more valuable to a select few than ever. My response – which I think Micah shares – is that this is no answer at all to the question of whether the journal system as it is currently comprised ought to remain static. Law schools could create some alternative signal-of-quality that would appeal to employers, which might more efficiently teach skills.

    4. As I’ve said on this thread, and many times before, we ought to get ought of the habit in any event of thinking about changes in legal education from the perspective of a student in the top quartile of a top quartile (wealthy) school. For those students, law review membership has a definite and certain economic value. For students not so lucky, or not so rich, it has less of a value.

    5. Finally, there’ve been two anonymous comments on this thread already. I’ve got a general rule – unless there’s a good reason to be anonymous/without a traced email, I tend to delete such comments. So it went with three comments which came through overnight. Pruning makes threads better. If folks hadn’t responded to “Class of 05″, I probably would have deleted it as well.

  13. AndyK says:

    Since the costs of legal education will always increase to the breaking point of the market, it’s safe to assume that removing journals will (1) lead to more students working and earning an average of X with a correlative increase in average tuition by X or, more likely (2) prison labor for liberal impact litigation.

    So the journal, as a vestige of patriarchal status signalling, is actually a merciful quasi-social club standing in the way of a living hell.

    Given that administrators hate-hate-hate the cost of paper publishing, hate-hate-hate giving out “free” credits for journal membership, and hate-hate-hate the costs of “wasted” journal real estate, I’m more convinced of this the more I think about it.

  14. Dave Hoffman says:

    AndyK: Grim. But actually, I think journals at most schools come close to breaking even, holding overhead constant. (You are right about “free” credits.)

  15. alex roberts says:

    I worked on an interdisciplinary journal for all three years at YLS, and we didn’t do book pulls. We read and discussed submissions, selected articles, and revised them to adhere to bluebook rules, but we didn’t check the citations. I believe it was more enjoyable and less tedious and time-consuming than the work done by members of other journals.

    If all journals switched to that model, the burden would shift back to professors and their research assistants to verify citations. That shift would result in students developing stronger relationships with faculty members and, potentially, getting paid (or getting course credit). For the work to be interesting and beneficial to students, we would want the same RAs who assisted with general background research to ensure the citations are accurate, meaning they would be closely involved with a faculty member’s article from start to finish.

  16. Jamie Colburn says:

    I think this is something that should move from the spitballing category (which Prof. Hoffman did admirably well) to the more serious venues that should hear it out. Having students teach other students to write, with little or no supervision from anyone who has at least been minimally filtered for competence in that set of skills, is problem enough to merit a collective rethinking here. Add in the warping effects of an almost wholly student-edited literature, the collective irrationality that results from each student body’s own (“rational”) choice to keep or proliferate journals, and the blurring effect that an overpopulated field is having on the main reason for supporting all of these low worth publications, and it doesn’t speak very well to a law faculty’s priorities. The faculty has to prioritize the opportunities it elects to provide with the tuition money it collects.

    The real problem with putting the issue in prime time is the variability in the subject. As was already said, some students had (and still have) good experiences on their journal. (From a decision-making standpoint, this could be a real obstacle: the people who will have to decide on this will be a biased sample of those who had successful and career-enhancing stints on law review–perhaps blinding them to the current reality and/or the underlying selection effect.) To their credit, some schools have just the right number of journal spots for their size class and other priorities. And some journals have worked out good training protocols in order to do a fairly impressive job of maintaining institutional knowledge even with their annual deck clearings. But I agree with the post that too many of these things are simply failing and that the failing is becoming systemic. Why won’t the Journal of Legal Education at least do a symposium on plausible alternatives/improvements, versions of the problem at various paradigm schools, etc.? Have they done such a thing? I haven’t seen come across my mailbox in the 10+ years I’ve been reading it. That would be a pretty fair step before someone like the ABA looks into it.

    I’ll say for my own two cents that, at Penn State, we finally decided to bite the bullet and wind down one of our secondary journals for the variety of reasons mentioned and we merged another of them into a faculty-edited start-up publication for a new school of international affairs. That shrunk membership on that one considerably. It was painful and stress-inducing for the crew of students involved; and it took away one apparent “opportunity” for some students in a recessionary economy. But the students eventually adapted; they found other opportunities; and ultimately it was the right move (especially now as we’re having to down-size our JD population to hold the line on the class we want to matriculate). Clinics, inter-mural moot courts, independent studies, externships, etc. all cost money (if not in cash, then in faculty time). Ramping these things up is going to either jack tuition up faster or come out of something else.

  17. Miriam A. Cherry says:

    I think I’m with Matt and Mike on this one. But… for argument’s sake, as for what students would be doing otherwise…well, what would profs be doing otherwise if we weren’t writing and teaching and researching and otherwise being engaged? (Sleeping, I think).

  18. Jon says:

    Yes, there’s be enormous problems if you were to replace the editors.

  19. BoredJD says:

    As a recently graduated student from a top law school, I’ll estimate that the percentage of journal participation among 2Ls was closer to 90%. Even students who didn’t do the flagship law review writing competition ended up doing a journal. It was a signaling function, true, but in a negative way. When everyone is on a journal and there are 13! student run journals to choose from, the lack of a journal stands out. The proliferation of journals seemed to be a way to ensure that everyone who wanted this signaling credential would have it, so that our students would not be disadvantaged against students at rival schools. A journal arms race of sorts.

    This created some perverse behavior. Several students on my secondary journal quit a month or two after OCI. Most journals, with the exception of the flagship law review, advertised themselves to 1Ls by touting how little work the student would have to do. It was no surprise that most secondary journals had very low organizational cohesion or loyalty relative to more voluntary student organizations such as clubs or clinics. We couldn’t even get anyone but board members to show up for free bar nights.

  20. Whatever happens, the law reviews should NOT be turned over to the law professors. That would make things far worse. Specifically, as to your first point of the post, law professors would do a far worse job of picking good articles, as I argued in “A Response to Brian Leiter: First, Don’t Kill All the Law Reviews.” http://thelegalwatchdog.blogspot.com/2012/03/response-to-brian-leiter-first-dont.html

  21. Steve says:

    I take issue with the proposition that law journals don’t teach students how to write in any effective way — both because (1) it is not law journals’ job to teach students the non-substantive, purely grammatical elements of writing and (2) I think that law journals *do* teach students how to write effectively. In regard to the first point, the entire purpose of a student note is to permit students to research interesting areas of law for their own fulfillment. As it so happens, because these notes are often derived from unexplored legal issues that they encounter in their 1L summer jobs, the notes also fill valuable gaps in the legal scholarship that have arisen from the nuts and bolts of legal practice. Most times, in fact, I find notes to be more in-tune with the finer elements of legal practice than law journal articles are. (Recall that even our Chief Justice often criticizes the sort of alarmingly theoretical scholarship that is being published in law journals these days from professors who have no interest in the way that the law applies, or should apply, on the ground.) In regard to the second point, pick up a note from a decent law journal sometime. I guarantee you that it’s well written — probably a lot better written, in fact, that many law professors’ articles. The notion that a law student can’t write, but that a young law professor, who has practiced for only a few years before returning to the academy, can … well, is ridiculous on its face.

    I also take issue with the idea that articles committees, which typically attract the best and brightest students in any given law school, cannot effectively decide what articles to publish. In deciding what and who to publish, not only do students often consult with professors. (I know — I did it several times when I was on a law review articles committee.) They also look at how often professors’ work is being cited, what sort of university presses have published his work (which incooperates an element of peer review), and a variety of other prudential considerations. Despite how you might portray them, law students aren’t stupid. Believe it or not, they occasionally know what they’re doing.

    Of course, this all ignores the real point here… which is that law professors are TERRIBLE editors, and would never put in the time to actually edit something like a law journal on a continuous basis. It’s unrewarding work, and professors would rather spend their time researching obscure topics like “how Immanuel Kant’s categorical imperative would imply to horizontal Erie analysis” than doing any meaningful editing work. I mean, it’s hard enough to get them to teach! So I guess what I’m saying is that if you want a forum in which professors like yourself can publish, I would encourage you to put a little more faith in law journals whose editors you’ve proven all too willing to criticize.

  22. Michelle Meyer says:

    Leaving aside the merits of Dave’s proposal from the perspective of law students, and with all due respect to Steve, looking at “what sort of university presses have published [a professor's] work” does not constitute “an element of peer review.” Nor does looking at “how often professors’ work is being cited,” any more so than does reviewing their educational pedigree on the cv that law review editors generally make faculty enclose.

    It’s true that in some contexts we make an ex ante decision to support the researcher rather than the research, based on the quality of her training, past research, and an interesting idea for new work. Federal research funding sometimes works that way. But academic peer review is supposed to be an ex post evaluation of the merits of this particular piece of research, not the researcher and not her prior research. Ergo, blind peer review. The facts that Prof. X has been published by OUP and the Harvard Law Review and has a YLS JD? These are all decent and understandable (if deeply unfair) proxies for law review editors to rely on when they have little other choice b/c their time and knowledge are significantly constrained (especially given simultaneous submission). But they don’t constitute peer review or anything like it. One might even say that tey’re offensive to the values that underlie peer review.

    As for the “real point” that law profs would be terrible editors, I’m not sure what your basis is for reaching that conclusion. It’s true that, currently, peer review isn’t much part of the culture of legal academia. And editing can be “unrewarding work,” as you put it (hey, I was on law review, too, I get it; it was a hell of a lot more hours than 10/month–more like 10/week–and, unlike other schools, we got no academic credit for membership). But editing and refereeing are a very big part of the culture of every other single academic discipline of which I’m aware. There, journals are edited by PhDs (some of whom are also faculty, some not) and refereed by faculty, very rarely by students. And those profs do it for free (or, really, count it as service), and still have time to wax on about Kant’s categorical imperative. (And that doesn’t even get into the increasing amount of serious post-publication review going on now.) So, while it would require a shift in the culture of legal academia, including a way for hiring and tenure & promotion committees to value that work, it’s not at all obvious that this shift would be impossible or even hugely difficult to achieve, such that law profs “would never put in the time to actually edit something like a law journal.”

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