01 March 2006

The Value of Law Reviews

First of all, a note: I think far too many "practitioners" blithely dismiss law reviews as somehow "irrelevant" to their practices—often to the detriment of their clients. Virtually anything a lawyer does has repercussions outside of the document or presentation being made at that moment; that's why we're "counselors at law," not mere technicians.

All of that said, there was an amusing (and unexpected) juxtaposition of metaphors for "value" in today's morning reading. On the one hand, some law professors don't like law reviews very much, either:

Not only does the slow publishing cycle of law reviews trouble Althouse and others, but critics also point to the lengthy and heavily footnoted format of the articles, which make them difficult to read — if in fact anyone actually is reading them. "I don't need a think tank, I need advocacy," said Stanley Bernstein, senior partner with 45-attorney Bernstein Liebhard & Lifshitz, a securities litigation firm in New York. Bernstein, who himself was an editor of the Journal of International Law and Politics at New York University School of Law, said that in his 25 years of practice, he has rarely used law review articles. "By the time you need to use them, they are generally a year or two out of date," he said.

A prevailing concern about law reviews is that law students who have just two years of course work compose the editorial staff of typical law review journals and, so goes the criticism, often make selection decisions based upon the status of the professor's school, not the value of the work. Douglas Berman, a law professor at Ohio State University, called the law review industry "incestuous." He added, "It's the marketplace of prestige. It's what you have to do to show off to law students."

Leigh Jones, "Blogging Profs Assault Ivory Tower," National Law Journal (01 March 2006) (fake paragraphing removed for clarity).1 Then, for contrast, there's the question of valuing "art."

The sociologist Wesley Monroe Shrum says that one of the defining characteristics of high art is that it is mediated by critics. This intellectual apparatus around it helps consumers to identify art that is "special", ie, more classy. People who choose to consume so-called low art usually do so without an expert as intermediary. Consumers allow themselves to be influenced by critics in return for the status bestowed on them by their choice of culture. Shrum calls this "the status bargain".

Grayson Perry, "How Art Appreciates—It's a Class Act," The Times (London) (01 March 2006).

It's both remarkable and vaguely disturbing how similar these are. I seriously doubt that too many law-firm conference rooms and waiting areas are going to start displaying law-review manuscripts; I don't think a tastefully understated display of "signed original Bainbridge manuscripts acquired by our corporate-governance specialists"2 is in anyone's future as a means of impressing clients (or, for that matter, anyone else). No, those shenanigans are going to be restricted to tenure committees.

Now there's a thought. If tenure committees would be more open to shorter pieces as demonstrating adequate scholarship3—which gets us back to the question of blawgs. Of course, that might require tenure committees to put out specific, measurable criteria for what constitutes adequacy, if only to get rid of the "400-footnote tenure piece" rumor that floats around… and seems pretty well confirmed by what actually seems to happen. Then, too, a little more emphasis on the "educating the public" function of legal academia—something that is also an ethical duty of all lawyers—wouldn't hurt.

  1. Elsewhere in the article, Jones remarks that "critics also point to the lengthy and heavily footnoted format of the articles, which make them difficult to read — if in fact anyone actually is reading them." Frankly, that's a better form than the two most-common alternatives: Moving the footnotes into the text as string citations, like in most briefs and judicial opinions (and thus vastly harder to read than anything that is properly footnoted—see Chicago Manual of Style Rules 15.4–.26. On the other hand, there's the "journalistic" problem of cutting every paragraph down to one, or at most two, sentences, which makes it impossible to write anything nuanced; instead, it encourages overgeneralization and rigid rules, neither of which reflects reality very well.
  2. I've said my piece before on the stupidity of the Model Rules of Professional Conduct's prohibition on using the colloquially accurate term "specialist." Thus, I stick my tongue out at this moronic formalism.
  3. The way I look at it, if judges can make decisions based upon 14,000 words or less (in federal appeals) or 25 pages or less (in many federal district courts), which include statements of facts and procedural history seldom required in academic pieces, surely academics who are not under the one- and two-month deadlines imposed in practice can do better.