Law & Society Blog

The discussion whether law reviews deserve cheers or raspberries continues. Dan Solove thinks that student-edited law reviews aren’t that bad after all, and even have their virtues. What I am particularly interested in is the relationship between the law-review piece and legal scholarship. There are two aspects to this.

The first aspect is whether overall, law-review articles in their current form advance legal scholarship. I’ve registered my doubts because student editing gives authors an incentive to dumb articles down to the level of the student editors (by explaining the background) or to dazzle the editors with fluffy jargon and cites to Berger/Luckmann. Dan responds:

What’s so wrong with some background? I don’t believe that having background in an article will hurt readability and it will not necessarily ruin the scholarly value of an article. Why is it better that a reader must be expected to know the lay of the land when the land can be explained rather simply in 10 to 20 pages? Of course, not all articles should have to set forth background, but for important ones, why not provide a little background if it will increase readership dramatically?

Apart from the fact that there may be an unrealistic view of law-review readership here, I think the point is not readability as such, but expectations among peers. A piece that talks about the basics and then tacks on an incremental idea or synthesis should be regarded as contributing less to the field than an article that dispenses with what the scholarly reader will know and focuses on a new idea or synthesis. Put differently, if the authors of law-review articles were forced to forgo both explanations of the background and jargon, it might turn out that there is currently very little scholarly content in our law reviews.

That brings me to the second aspect, the role law reviews play in the careers of legal academics in the US. Ethan Leib writes over on PrawfsBlawg:

[F]aculty who stop writing law review articles often come to be seen as “deadwood” within their institutions. Even if someone is writing op-eds, blogs, newspaper articles, and an occasional book — all things that bring a school more attention than an average law review article — I believe most schools probably wish for their faculty to be active scholars, where scholarship is measured through articles.

I think that’s right: The law-review article is an important measure of scholarship in the US. But I don’t think it should be. Not in the sense that publishing a law-review article in itself should count. Sure, most law schools distinguish between the journals, and over all, the better pieces tend to get published in the better journals (but not invariably so by any means). The real question should be the scholarly merit of the piece, and everyone will agree that the fact of publication and the reputation of the journal are just proxies for scholarly merit (another problem with student-edited journals).

So here is a proposal that would gauge the scholarly merit of law-review articles, improve readability, and eliminate the incentive for jargon and law-review speak: The Citation Efficiency Index.

To calculate the Citation Efficiency Index, divide 1 + number of cites by the number of footnotes in the article. By cites I mean cites to the article in other articles, books, or court opinions. For example: I write an article with 275 footnotes that no one cites to. The CEI would be 1/275 or 0.0036364. An article on the other hand that no one cites to, but that contains only 30 footnotes would have a CEI of 1/30 or 0.033333. Much better. Finally, if you consider an article that gets 5 cites in other articles or opinions that has 30 footnotes, the CEI would be 6/30 or 0.2 — brillant piece. The truly seminal articles might have 300 cites and 100 footnotes, for a whopping CEI of 301/100, or 3. Any CEI above 1.0 is a major accomplishment, of course, and the fewer footnotes you use, the easier it is to achieve. All we need to do is to link tenure decisions and professor bonuses to the CEI and we will effectively reduce law-review articles to their core purpose: advancing legal scholarship.

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