I’ve often said that judges learned to ignore the law when
they were in law school. In law school, students
actually learn some rules (although it’s really hit or miss, as most law profs
don’t like to waste time on the rules they don’t find interesting). However, students are also taught that there is
never a right answer to any legal question.
It’s all about the argument, they’re told, even when the rule of law is
crystal clear. And in law school classes, all opinions are treated as equally
valid, and no one is ever told that that they are wrong. And there’s the problem: when law students
grow up to be judges, they still believe that the law is whatever they want it
to be. The result is that judges ignore rules—and logic, reason, and even the English language—in order to reach the outcome
they want.
And now, there is some evidence to support my theory that judicial
disdain for the rule of law originates in law school. Today’s lesson comes courtesy of the law
journals, which are legal publications run by second- and third-year law students. These journals publish articles written by law
professors and, to a lesser extent, lawyers who have a literary bent. A few years ago, the students at the “top”
law reviews—including the Harvard Law Review and the Yale Law Journal—claimed
to be tired of the redundant, professorial legal babble in most of the articles
that they received for publication. So
to deal with this, they got together and came up with a set of rules to govern
authors’ submissions. The rules,
essentially, are that the journals strongly prefer to publish articles under 50
pages, and will not, “except in extraordinary circumstances,” publish articles
over 60 pages.
I remember reading these rules when I first started
publishing in law reviews, and they made perfect sense. Having been on law review in law school, I
was no fan of professorial babble either.
And as a writer, I tend to be clear and concise—at least by law review standards. But, it turns out, these law school students were
really judges in the making. After conducting a nationwide survey to determine the most desirable length of law
review articles, and then, no doubt, spending a lot of time thinking about,
talking about, drafting, reviewing, and revising the new rules, they behaved
just like judges: they ignored their own rules.
More specifically, a professor recently got the idea to
check on the length of the last 19 articles published in the Harvard Law
Review and the Yale Law Journal.
The result: not a single article that was published satisfied the page-limit rules! Instead, all 19 of the last 19
articles published were well over the page limit. (So much for the “extraordinary circumstances”
exception.) A couple of articles even topped 100 pages—more than double the page limit! On average, Yale’s articles were 77 pages and
Harvard’s were 80 pages.
This type of rule breaking now calls into question
everything else that the law journals advertise. For example, when I submit my article for
publication, am I really getting a “blind review”—as Harvard, Yale, and a few other
journals promise—so that I have a shot at being published based on the quality
of my work, instead of where I (don’t) teach or how many names I (don’t) drop
in my author’s footnote? I doubt it.
But in any case, the point is this: whether you are a judge
or merely a judge-in-training law review editor, please stop making rules. You know you are not going to follow them, so
stop deluding yourself into thinking that you will. People will respect you more if you simply
admit up front that you are going to do whatever you feel like doing. And if you need a stronger incentive, know
this: every time you make a rule that you later ignore, people are mocking
you.
No comments:
Post a Comment