Friday, March 16, 2012

A Response to Brian Leiter: First, Don’t Kill All the Law Reviews

Okay, okay.  I know I just announced my blogging hiatus a few hours ago, but something on the web just caught my eye and I had to write a post.  (Then, it’s back to my hiatus.)  Brian Leiter, a law professor, recently wrote Four Changes to the Status Quo in Legal Education That Might Be Worth Something.  Leiter has a Ph.D. in philosophy (which is one of my favorite subjects), so I like him already.  However, I strongly disagree with the third of his proposed legal education reforms, which is to “[c]ut the number of law reviews by 75%, and turn the remaining ones over to faculty supervision[.]”  It’s true, as Brian contends, there is a lot of “worthless scholarship” out there.  However, those extra articles aren’t really hurting anyone, and there are at least three good reasons to keep law reviews out of faculty hands. 


As a preliminary matter, for those readers of The Legal Watchdog that are not familiar with law reviews, here are some basic facts.  Law reviews are journals that publish articles on a variety of legal topics.  Each law school runs at least one (and usually several) of these journals, and it’s actually the third-year law students, and not the law professors, that select, edit, and publish the articles.  The articles themselves are written almost exclusively by law professors, like Brian, but sometimes by practicing lawyers, like me.  A journal will receive hundreds (and sometimes thousands) of submissions, but will publish only about ten to fifteen of the articles it receives each year.  The reason there are so many articles being submitted is that law professors get tenure, raises, and bonuses from their law schools when they publish enough articles in different journals.  The journals themselves pay nothing for the articles.  So when a lawyer, as opposed to a professor, publishes articles, he does it for free (or, rather, "for the love of the game").    


Here, then, are three reasons that law schools should not turn their journals over to faculty supervision:


FIRST, as a different law professor observed, law schools like to hire professors who have little or no experience practicing law.  Surprisingly, this is even more common at the more prestigious law schools, which prefer to hire law professors with no experience, but who hold a J.D. and a Ph.D. in some subject—economics is the current flavor of the week.   There’s even a shocking trend at these schools to hire law professors who have a Ph.D. but who never even went to law school, let alone practiced law.  (Marinate with that one for a while.)  The obvious problem with turning article selection over to this current crop of professors is that they aren’t going to know which submissions are “worthless scholarship.”  They certainly would know the type of articles they and their fellow professors value, but they would not be able to determine which articles judges and lawyers value.  Therefore, law reviews would lose what little practical value they still have left.  (I have reason to believe that law students, who currently run the journals, do have a better idea of what is practical and useful, but that’s another story.  The point here is that turning article selection over to professors won’t improve matters.)        


SECOND, if article selection were turned over to law professors, they would only publish articles submitted by their law prof pals, and the articles submitted by “outsiders” like me would never see print.  Consider, for example, this tale of two articles.  I recently published an article in the Fordham Law Review, a journal that status-obsessed law professors (and status-obsessed wannabe professors like me) view as very prestigious.  (In fact, for professors, a publication with Fordham or a comparable journal could mean the difference between tenure or termination, a big raise or no raise, etc.)  Here’s how I did it: I got an idea, I researched the article, I wrote the article, I submitted the article to journals, a couple of journals offered to publish the article, and I accepted Fordham’s offer.  Never did I consider bothering anyone to proof read it or give me feedback before I submitted it.  (On other articles, like this one, I did ask one person to give me feedback, and on other articles, like this one, I did have a coauthor.)


Conversely, consider this article that was written by a law school professor.  The professor who wrote it got feedback from twenty-seven other law professors—that’s right, twenty-sevenbefore he submitted it for publication.  And this doesn’t even count the dozens, if not hundreds, of additional professors at the four different law school conferences where he presented the paper to get ideas and feedback!  (I know these facts because I read the name-dropping footnote the author placed on page 478 of the article.)  Now, I do not know this particular author, and I don’t mean to single him out or suggest that he’s done anything at all improper.  In fact, the opposite is true: I have reason to believe that this practice is commonplace, and even encouraged, in legal academia.  (Not to mention very costly for the law school employer, if you consider the professor's time, the cost of travel and lodging, etc., to get to the various law school conferences clear across the country.)   


But here’s my point: Assume that we’re in the hypothetical future where law reviews have been turned over to law professors.  Also assume that a typical professor was running his school’s law journal and was selecting the articles he wanted to publish in it.  Further assume he got a submission from me, a legal practitioner unaffiliated with any law school, and another submission from one of the dozens of law professors who was kind enough to read, think about, and comment on his previously published, weighty tome.  Even if this typical professor had practiced law before and could appreciate the value of my ideas, which article do you think he would select for publication?  Of course he’d go with his fellow professor's article.  The law review article selection process would quickly turn into an “I’ll scratch your back if you scratch mine” type of affair, where favors would be repaid with publication offers, which would be repaid with more publication offers down the road.  Outsiders like me who have no ability to do favors in the first place would never get our backs scratched.  In other words, I’d be at such a disadvantage out of the gate that I’d never get my articles published anywhere, let alone in a prestigious journal like the Fordham Law Review.    


THIRD, Brian is right that there are way too many articles being submitted.  But the better way to fix that is to require more teaching from law professors.  Right now, law professors at most law schools teach three courses per year—yes, that's per year—and then are required to flood the market with law review articles so impractical that few people want to read them.  If their teaching load was doubled to six courses per year (which is standard for college professors and far less than what college lecturers have to teach), and in exchange for that they were no longer required to publish law review articles, then the amount of bad, forced scholarship would decrease.  And, in the process, law schools would need far fewer law professors to teach the same number of law school courses.  And with fewer professors out there, the amount of bad, forced scholarship would decrease even further.  Win, win, win. 


Okay, I’m done, and I’m going back to my blogging hiatus to tend to matters of book publishing and trial preparation.  But while I’m gone, please, do not turn over control to the law professors.  They’re the last ones that should be running the law reviews.

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