A response to Brian Leiter: First, don’t kill all the law reviews

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. 

Miranda: Custody within custody?

When the police have a suspect “in custody” and they want to interrogate him, they must first read him his Miranda rights, which still include (arguably) the right to remain silent.  And the test for whether a suspect is “in custody” has produced some very interesting cases.  For example, assume that the police are questioning a suspect at his home, but while pointing their guns at him; is the suspect “in custody”?  Or what if the police use the old bait-and-switch and “invite” a suspect to come to the police station under false pretenses, and then start interrogating him once he gets there; is the suspect “in custody” in that situation?  You might be able to formulate good arguments on both sides of these coins.  But, when a suspect has been formally imprisoned and put in a jail cell, and the police go to question him, surely that prisoner is “in custody” and entitled to the Miranda warning, right?  Not so fast.  The Supreme Court says that we have to look at whether there was "custody within custody."

Are you in the “Top 14”?

Reading about the legal “academy” is pretty fun (unless you’re a recent J.D. grad who is still fuming over your high student debt load and your poor job prospects).  One of the things I’ve always chuckled at is their reference to the “Top 14” law schools.  The schools (and graduates of the schools) that fall just inside of this cutoff like to refer to it, because it’s better to be in the “Top 14” than the “Top 15" (sorry, UCLA).  And of course, those outside of it like to refer to the “Top 20,” or even the “Top 25.”  (Anything beyond that is sacrilegious in the academy; sorry, Boston College.)  And for some purposes (e.g., landing a federal clerkship) the more meaningful cutoff is probably the “Top 5” or maybe the “Top 10.”  But where does the “Top 14”—mathematically an even number, but rather odd for ranking purposes—come from?