Law & Society Blog

Rosa Brooks, over on the new and enjoyable LawCulture blog, has started—perhaps I should say, rekindled—a discussion on the sense and nonsense of law-review articles. There are responses on PrawfsBlawg by Ethan Leib and Paul Horwitz, and another one back at LawCulture by Jessica Silbey. (I am sure the debate will go on, seeing how the law-review piece is inextricably linked to a law professor’s career progression.)

Dan Solove over on Concurring Opinions has this to say:

The other issue is whether scholarship — law review articles in particular — must be dense, overly crammed with footnotes, and dull. From what I’ve read in the discussions I quoted above, there’s an assumption that law review articles have a particular nature — a particular format and style. It is certainly true that law review articles have evolved into a certain kind of genre, typified by great verbosity, laborious and obtuse prose, and zillions of footnotes. But need law review articles be that way?

Part of the reason for this state of affairs is that we professors haven’t pushed enough to modify the genre. The law students seem to be the ones dictating the terms — indeed, recently, several top journals instituted a page limit on articles. We professors dutifully try to obey. But perhaps it’s time for us to pipe up. Let’s call for abolishing some of the stupid rules in the Bluebook (for non-lawyers, this is the law review manual of citation) that mandate the litany of unnecessary footnotes.

This view, I think, is fairly common and it suggests that some stylistic changes could save the law-review article as a scholarly genre: take out two-thirds of the footnotes, make the writing less stuffy and more lively. (I don’t agree that the writing in law-review articles tends to be dense.) But let’s remember that Rodell said that two things were wrong with law review articles, style and content. Isn’t it time for stronger medicine?

The problem is that law-review articles are written first for the student editors who pick them. Student-edited scholarly journals are an anomality in academia. Student editors are bright kids, certainly; but kids. They’ve been at it for two or three years and are put in the position of selecting pieces supposed to advance jurisprudence, scholarship, and justice. The effect is that the average law-review article has to spend about 30 pages explaning the subject matter to the student editor, and why it matters, before ever getting to a new idea or synthesis. This affliction of law-review articles becomes painfully obvious when you compare them to articles in peer-reviewed journals, as you would find them in philosophy, for example. The approach there is that a scholarly article should be written for scholars and the reader can be expected to know the lay of the land.

If we want to save the law-review article as a meaningful reposity of scholarship, it is time to say good-bye to student-edited journals. While I am not arguing that peer-review in itself will improve readability, I wouldn’t be surprised if it did.

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