January 1, 2018 - Professor Ed Zelinsky's letter in the Wall Street Journal states that "Gov. Cuomo claims that capping the federal income tax deduction for state and local taxes leads to unfair double taxation.
Fixing Law Review Critics
November 30, 2012 Inside Higher Ed - John G. Browning’s recent essay on Inside Higher Ed fires many of the traditional bullets at student-edited law journals: They are overly theoretical, redundant, costly, and despite being edited by 20-somethings, are clumsily adapted to the digital age. I serve as editor-in-chief of Cardozo Law School’s Journal of Conflict Resolution, apparently one of these outmoded publications. Like most student editors, I’ve become accustomed to reading criticisms like these. Similar sentiments have been published in The New York Times, The Atlantic, and Legal Affairs. Browning is in good company.
Critics have their hearts in the right place. But their arguments are flawed in two ways: First, they dramatically overgeneralize the varied landscape of student-edited legal journals and the articles they publish. Second, critics view the primary mission of law journals as helping appellate judges and practicing lawyers. In fact, students are the primary beneficiaries of law reviews. Practicing lawyers and judges are important audiences too, but not as central as critics claim.
Nailing Down the Complaints
Criticism of law journals, like criticism of lawyers, is a time-honored American tradition. The common argument goes like this: Law journals publish bizarre theoretical pieces that are totally removed from real-world legal practice. As journals proliferate, they are becoming increasingly useless to practicing lawyers, and are failing in their primary mission of influencing judicial opinions. Browning makes his case, like many critics do, by citing some pompous-sounding topics of recently published pieces.
The vision of useless “theory” articles gained traction last year with a comment by U.S. Supreme Court Chief Justice John Roberts: “Pick up a copy of any law review that you see,” he said, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
This system persists, say the critics, because law professors are either innately interested in these abstruse topics or merely write under the pressure of the publish-or-perish system. More cynically, law schools themselves have a secondary incentive for subsidizing law reviews (which often operate at significant financial losses). Schools aim to build their reputations in specialty fields. “Reputation” is often code for the infamous reputational index on U.S. News & World Report -- a ranking of schools’ programs by professors in a particular field. If a school hopes to build its rank in taxation, for example, it might consider creating a tax law journal. Such a journal would allow tax scholars to publish with the school, probably bring such scholars to campus to participate in conferences, and generally increase the reputation of the school among experts in the field.
In short, critics cast law journals as nothing more than vehicles for prestige for schools and tenure for professors.
A Response: All Theory and No Practice?
To start, critics like Browning severely overgeneralize the landscape of law reviews. All student-edited legal publications are lumped together into a monolithically useless heap. In the minds of critics, these journals all publish on obscure theories of legal philosophy and hermeneutics. This is simply not the reality.
Yes, some journals are “theory-heavy”—the Yale Law Journal, William & Mary’s Bill of Rights Journal, and Washington University’s Jurisprudence Review, to name a few. But average law reviews and most specialty journals (journals that focus on particular areas, like real estate or intellectual property) are keenly interested in publishing relevant scholarship. Don’t believe me? Visit a few law journal websites and scroll through their recent tables of contents. Sure, you’ll encounter the occasional oddball pretentious titles. But you’ll also find articles firmly grounded in reality — articles that, as Sherrilyn Ifill of the University of Maryland said, “offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decision-making on how law develops in the courtroom.” Indeed, many law journal articles are written or co-written by practicing attorneys.
My own journal is a good example. We publish exclusively on arbitration, negotiation and mediation—all very practical processes for problem-solving, particularly in a world where the vast majority of cases settle out of court. To the extent that we publish “theory,” the articles discuss innovative designs for new adjudicative or dispute resolution systems.
Another rebuttal. Critics of law reviews complain that we’re failing at our key mission — being cited by appellate courts. Since when is judicial citation our raison d’être? Don’t get me wrong: I fantasize about Justice Kagan going to sleep with a copy of the Journal of Conflict Resolution on her nightstand before hearing a case arising under the Federal Arbitration Act. But contrary to the assertions of critics, I have never met a fellow law journal editor who selects articles for publication solely (or even predominantly) because of the likelihood that a judge somewhere may someday cite it. We choose articles that are thought-provoking and cutting-edge, but not merely because we desire judicial attention.
A corollary point is that law reviews do not necessarily need to be cited by courts in order to aid practicing attorneys. Attorneys facing specific legal situations often search journal databases for a starting point. Articles they discover serve as both invaluable synopses and comprehensive bibliographies of relevant precedents and statutes. That sort of impact is very difficult to measure unless the article itself is cited by a judge. (And since the great majority of cases settle before a judge ever sees them, how reliable a metric are judicial citations anyway?).
Critics underscore the role of law reviews in aiding practicing attorneys. This is surely one of their important functions. But the truth is, journals also exist for the benefit of their student editors. Students hone their legal research and writing skills by doing careful editing, citation formatting, and proposition-checking. They produce their own publishable pieces of original scholarship, usually commentaries on recent cases. Third-year students have the additional experience of managing a large team, controlling a significant budget, and interacting with leading scholars from around the world. Even if no appellate judge ever cites an article, the average student will still have grown tremendously by editing it.
Browning worries that student-edited journals are not useful for practicing attorneys. I disagree. But even adopting his assertion, attorneys still have access to innumerable attorney-edited journals published by bar associations across the country. Student law reviews are not their only resource, or even necessarily their best resource.
A Concession: An Archaic Publishing Process
Browning is absolutely right in one respect: the current model of journal publishing is entirely outdated. (I suspect this is true for non-legal academic journals too). Right now, law reviews submit content to one of the handful of specialized law review publishers. Those publishers print the content and mail our book-like volumes to subscribers. The publisher also sends that content to Westlaw and LexisNexis, the two major online legal research databases. Journals charge a small subscription fee and, sometimes, a content reuse fee if their articles are reprinted in textbooks. West and Lexis charge a great deal more. Most journals operate at a loss.
What is peculiar about this system is that many journals also publish their content as PDFs on their websites. PDFs, of course, are searchable by Google and easily findable through Google Scholar. For free. In the 21st century, I have absolutely no idea why any library or practitioner subscribes to the print edition of any law journal. (Though don’t repeat that to our valued subscribers). And I have absolutely no idea why any law school wastes money subsidizing the cost of printing and mailing them. (Though don’t repeat that to my generous dean).
The answer is probably about competition; no law school wants to be the first to go “online only.” If prestige is truly the obstacle — we are talking about lawyers here — the solution is an industrywide collusion. If deans from a collection of law schools discussed this, perhaps during an Association of American Law Schools (AALS) conference, they could reach a disarmament agreement. Depending on the number of journals a school operates, this shift could easily save five or six figures annually.
As the digital age moves along, law reviews should reject not only print publication, but also the very idea of distinct “volumes” and “issues.” What is an “issue” of a law journal but a collection of articles on a random assortment of current topics? Few issues have a single unifying theme that merits their being bound together in a book format. Law journals should move to a model of rolling deadlines more akin to digital journalism. Scholarship can be published whenever it is ready, and at a much lower cost.
If the goal of law journals is to influence appellate judges in their day-to-day decision-making, perhaps they are failing. But most journals don’t (or shouldn’t) adopt that as their sole metric for success. A better metric is what the students on the journal are gaining from the experience. Journals expose law students to truly complicated, confusing, complex writing. Some of that writing is terrible and pompous, some vivacious and sharp. Some is hackneyed, some is intellectually subversive and trailblazing. Thus, academic legal writing mirrors the mélange of actual writing — i.e., briefs, memos and judicial opinions — that attorneys will encounter throughout their careers.
Journals teach student editors to sharpen complex legal arguments, clarify language, format intricate citations, and work long hours to hone a final product. More sentimentally, the journal process reminds students that no legal doctrine is static. Law is subject to thinking and rethinking, argument and re-argument. Authority can not only be cited but questioned — by smart lawyers, through their writing.
There is so much to fix in modern legal education. Are student-edited law journals really so bad?
Brian Farkas is a third-year student at Cardozo School of Law and editor-in-chief of the Cardozo Journal of Conflict Resolution.