Category: Law School (Law Reviews)

19

How the Harvard Law Review Scarred me for Life

gannett.gifLike many a law student with academic ambitions, I spent much of my law-school life doing law-review work. I Bluebooked. I line edited. Eventually, I spent my 3L year reading what seemed like hundreds of manuscripts in a vain effort to identify the second coming of “The Reliance Interest in Contract Damages.” I learned a great deal, but the experience has also left some lasting scars on my psyche. I am talking, of course, about the split infinitive rule.

Prior to my trial by editorial fire, I was vaguely aware that there were infinitives and that they were not to be split. I can’t say, however, that I worried all that much about it. Indeed, I am not sure that I could actually identify an infinitive if called upon to do so. All that changed once I passed the doors of Gannett House. Merciless senior editors drilled into me the absolute necessity to find and to destroy all split infinitives. One is not to write “I came to clearly say” rather one must write “I came to say clearly.” Failure to catch such an error in a professor’s manuscript would result in a note placed in your file by a senior editor, which would then be read in a year’s time at the elections where you made your bid for fame, glory, and absolute power. (Incidentally, I am not making up the part about the files; the senior editors at the HLR really keep files on the junior editors. It is vaguely J. Edgar Hoover-ish.) This was high-stakes grammar.

Here is my problem. I think that the split infinitive rule is stupid. It sounds stilted to me to say, “Justice O’Connor failed to adopt clearly a rule” rather than “Justice O’Connor failed to clearly adopt a rule.” In short, I like split infinitives. I think that the English language would be much happier were we to drop the whole insistence on keeping the infinitive unsplit. The problem is that I no longer have the split-infinitive innocence that once I had. I read a perfectly serviceable sentence containing the phrase “to clearly establish” and try as I might a little editorial voice in my head says, “Split infinitive, split infinitive, split infinitive.” I read some awkward locution, and the same voice in my head says, “Sure it is a sucky sentence, but he didn’t have much choice unless he was going to split that infinitive.” I am deprived of both the joy of natural language and any real appreciation for accurate grammar. In short, HLR has permanently scarred my relationship with this particular part of the English language. I find myself just trying to avoid adverbs as a result. It’s sad.

I want it to be the way it was before, when I just thought that it was better to say, “to boldly go where no man has gone before.” More than that, however, I want to finally, definitively, totally, absolutely, truly, and gleefully repeal the split infinitive rule.

8

ExpressO Presents Yet Another Law Review Ranking

At the AALS conference this past weekend, I picked up the new glossy promoting ExpressO, the law review article submission service from Berkeley Electronic Press. ExpressO’s 2007 “Law Review Submission’s Guide” gives up the up-to-date ranking of the top 100 law reviews based on number of manuscripts received via ExpressO. The new data is interesting both as a snapshot of past author behavior, and perhaps as guidance about where the pack may be headed next. The study itself is not new – the 2006 rankings are here.

Here’s the latest top 20:

1.NYU

2. Wisconsin

3. UCLA

4. Arizona

5. Virginia

6. Hastings

7. Northwestern

8. Notre Dame

9. Maryland

10. BC

11. Chicago

12. Iowa

13. BU

14. Illinois

15. San Diego

16. Georgetown

17. W&L

18. Southern Cal

19. Wake Forest

20. Texas

Cal was at 23, Michigan at 27, and Columbia at 80. We also learn that this ranking system offers that most precious of commodities: upward and downward mobility. Yale is #74 (down from #60), Harvard is #85 (down from #57), and the Alabama Law Review is a remarkably popular #22 (up from #64).

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3

Counter-cyclical journals, Redux

It’s December . . . do you know where your counter-cyclical journals are?

I realize that the conventional wisdom (as articulated, for example, by some yahoo a few years ago) is that “submitting an article in December is the functional equivalent of dropping it off a bridge.” But for every rule there is an exception. And so we asked this question six months ago, and we ask it again, now.

If you’re a journal editor and your journal is actively pursuing articles right now, please weigh in in the comments. If you’re an author who just (in the past month or so) received an offer from a journal, feel free to sound off as well.

2

For the True IP Geek: Podcasts of IP Conferences

The Berkeley Center for Law & Technology has now made podcasts of its fabulous August IP conference available online here.

And the UC Davis Law Review has made our March “Intellectual Property and Social Justice” conference available as free podcasts on iTunes.

Putting audio of academic conferences online is a tremendous advance. It makes the leading scholarship available worldwide to those with access to the Internet. At the same time, it enables scholars who cannot attend multiple sessions occurring simultaneously to listen to what they missed–or to review sessions they found especially valuable.

Law Reviews should make this a standard practice.

The obvious next step: YouTube.

2

Law Review Best IP Practices

logo.gifSome time ago, Professor Larry Lessig posted this attack on the Minnesota Law Review’s then-extant copyright agreement. After bemoaning the practice of journals imposing severe restrictions on academic use, he threw down a gauntlet:

I will not agree to publish in any academic journal that does not permit me the freedoms of at least a Creative Commons Attribution-Noncommercial license.

While some speculated about Lessig’s motives, it is my sense that his blog post contributed to a movement. Many journals, including the MLR, have changed their copyright agreements in the past year. As Info/Law recently pointed out,

The journals can always say no, but we have found in research for the Berkman Center’s “Digital Learning” white paper that many journals are willing to allow for some forms of open distribution if an author pushes them just a little. Science Commons has found the same, and notes that “We are aware of no instance in which a publisher has refused to publish an article where the author sought to retain some non-exclusive rights to the article.”

As Solove pointed out here in July, there is a new trend afoot : authors demanding that reviews give up their copyright altogether. I don’t think this is the same as the open-access movement, but instead (possibly) a push by authors to retain exclusive rights so that they can take advantage of new methods of distributing legal scholarship.

Assuming that you are the editor-in-chief of a law journal, what is the current best practice with respect to your license, and why? ( Looking at Froomkin’s wiki on copyright practices, I don’t have a sense that a market standard has emerged.) Further, should licenses be negotiable? Although negotiability is generally desirable, it obviously permits high-profile authors to eat even more of the pie.

1

PENNumbra

PENNumbra.jpgA warm welcome to PENNumbra, the newest law review companion website. Like Yale Law Journal’s Pocket Part and Harvard Law Review’s The Forum, the University of Pennsylvania Law Review has created PENNumbra, which “features downloadable articles from the print edition of the Law Review, brief scholarly responses to those articles, and online debates on topics of current interest.” In their promotional email, the editors note the content already on the site:

Featured in the debut edition of PENNumbra are:

* Marci A. Hamilton and Mark Tushnet, responding to Erwin Chemerinsky’s Assessing Chief Justice William Rehnquist

* Frank Goodman and Theodore Ruger, responding to Jack M. Balkin & Reva B. Siegal’s Principles, Practices, and Social Movements

* Dan Markel, responding to Wayne A. Logan’s Horizontal Federalism in an Age of Criminal Justice Interconnectedness

* Ann M. Bartow, responding to Daniel J. Solove’s A Taxonomy of Privacy

* Lyle Denniston, responding to Linda Greenhouse’s How Not To Be Chief Justice: The Apprenticeship of William Rehnquist

* William Burke-White and Abraham Bell, debating the United Nations’ continued relevance to the development of international law

I’ll have a response to Bartow’s essay soon.

2

Blackstone and the Origin of the American Footnote Fetish

footnote1.gifOne of the well-worn complaints about legal writing is that it is over-footnoted. One has only to open the pages of any American law review to see what folks are talking about. Interestingly, however, this does seem to be a peculiarly American phenomena. I read articles in English law journals fairly frequently, and they just don’t have to same footnote fetish as their trans-Atlantic cousins. Most folks I’ve talked to about this blame the student editors. Student editors are ignorant, and so articles get larded with footnotes either (a) to impress the editors into accepting the piece, or (b) because the student editors demand the footnotes to assuage their fear that they are publishing nonsense. (Never mind that these two explanations are not entirely consistent with one another.) For myself, I blame William Blackstone.

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11

Law Review Submissions, Final August Version

question2.jpgContinuing Co-Op’s tradition of law review related public service, I thought I’d open up a space for law review editors to provide some information to folks thinking of submitting in the next “cycle”. (Kaimi has a post up for law reviews that want off-cycle submisssions).

[Update: I started this thread back in June. It is now August, and I assume the window of submissions is fully open. Editors should feel free to use the comment thread to make any submissions related announcements they deem relevant and useful.]

5

More on Ranking Law Reviews

The Sullivan Scale

I’m a big fan of data mining (not the NSA variety, but the kind you do when you’re cleaning up your office), and there, nestled next to an article on rankings that I had lied to myself about responding to some day, was a pile of rejection letters from my Spring submission. As I was throwing them away, I noticed that several tried to ease the pain of rejection by informing me that I was just one of many who were also not quite good enough (many of these letters also solicited me to try again, as they had done the last 19 times).

Eureka, I thought, the perfect ranking system: ranking law reviews by number of submissions. One clear advantage of this method is that it does not necessarily reproduce the current hierarchies that dominate the other rankings.

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4

Ranking Law Reviews as the August Window Opens

It’s not so clear whether the recent spate of scholarship on ranking law reviews is a reaction to an emerging phenomenon or oblivious to it. Rankings of law reviews long predate the recent efforts and, indeed, long predate the US News & World Report ranking of law schools. However, judging from my younger colleagues, US News is a perfect proxy for law review ranks. (To that extent, I take an even stronger position than Professor Alfred Brophy’s recent posting on SSRN, which, after engaging in considerably more empirical research than I, finds a .86 correlation between citations to a school’s main review and USNews peer review ranking).

In short, I believe that, when engaged in window shopping during the Spring and summer submission seasons., both the submission strategy and the expedite strategy are pretty much dictated by where a particular review’s law school falls on the US News scale. There is almost no concern with whether a review is better (or worse) than its home law school, nor any effort to consult studies such as Professor Brophy’s.

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