Law School Discussion

Judge Posner on what is wrong with Law Reviews


Judge Posner on what is wrong with Law Reviews
« on: November 17, 2004, 08:06:07 AM »

Against the Law Reviews
Welcome to a world where inexperienced editors make articles about the wrong topics worse.  

By Richard A. Posner  

... Submissions in "law and . . . " fields magnify the bad effects of the inexperience of student editors and their failure to use peer review to separate the wheat from the chaff. Apart from acute problems of quality control, neither author nor reader is likely to benefit from the editing process. Because the students are not trained or experienced editors, the average quality of their suggested revisions is low. Many of the revisions they suggest (or impose) exacerbate the leaden, plethoric style that comes naturally to lawyers (including law professors). According to an article written by James Lindgren at Northwestern Law School in the Chicago Law Review, one law review editor "thought that many uses of the word 'the' in an article were errors. Following this bizarre rule of thumb, he took as many 'thes' out of manuscripts as he could, thus reducing many sentences to a kind of pidgin."

The author is also likely to suffer, because the student editors, having a great deal of time and manpower to devote to each article, often torment the author with stylistic revisions. (These are to be distinguished from correcting erroneous citations; that is a genuine though modest service to scholarship.) To student editors, the cost of an author's time is zero, and the author is usually subjected not to one, but to two or three rounds of editing. And the editors do not limit their suggestions to style. On the side of substance, their especial preoccupation is with trying to maximize the number of footnotes, citations, and cross-references in order to create the impression that everything in the article is proven fact. The student editors also insist on inserting parenthetical summaries of cited references, even when the reference is to an entire book (e.g., Plato, The Republic (sketch of proto-communist society ruled by philosophers); Sophocles, Oedipus (play about mother-son incest)).

THE RESULT OF THE SYSTEM OF SCHOLARLY PUBLICATION IN LAW is that too many articles are too long, too dull, and too heavily annotated, and that many interdisciplinary articles are published that have no merit at all. Worse is the effect of these characteristics of law reviews in marginalizing the kind of legal scholarship that student editors can handle well—articles that criticize judicial decisions or, more constructively, discern new directions in law by careful analysis of decisions. Such articles are of great value to the profession, including its judicial branch, but they are becoming rare, in part because of the fascination of the legal academy with constitutional law, which in fact plays only a small role in the decisions of the lower courts. Law reviews do extensively analyze and criticize the constitutional decisions of the Supreme Court, but the profession, including the judiciary, would benefit from a reorientation of academic attention to lower-court decisions. Not that the Supreme Court isn't the most important court in the United States. But the 80 or so decisions that it renders every year get disproportionate attention compared to the many thousands of decisions rendered by other appellate courts that are much less frequently written about, especially since justices of the Supreme Court are the judges who are least likely to be influenced by critical academic reflection on their work....


Richard A. Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School.