In Defense of Student-Edited Law Reviews
Chris Geidner
(originally published Nov. 17, 2003 at En Banc)
After much delay and procrastination, I am finally blogging on the importance of student-edited law reviews. As it appears few out there eager to take this position (Jeremy heads in the opposite direction here; Randy Barnett here; Leiter here; and earlier, Juan Non-Volokh (in defense) here, Sasha Volokh�s reply here, and Juan�s rejoinder here), I am more than open to the criticism that might follow. I look forward to engaging those responses.
I have long thought the whole idea of "student-edited"�as opposed to peer-edited�journals to be an amazing and intriguing peculiarity of the American legal institution and, more importantly, its hierarchy. I had described the process to my graduate-student friends, and many were intrigued. I described the genius of the student-edited review as follows: "The law is different in that our academic literature is selected and edited by the next generation of theorists and practitioners in the form of today�s law students."
In a sentence, that�s what this is all about to me. There are several value judgments in that statement�both implicit and explicit�and I will attempt to define them and explain their importance.
Most important, "the next generation" is in charge. As I said, this is most intriguing in light of the law�s seeming obsession, even within journals, with hierarchy. Student-edited reviews turn the entire hierarchy on its head. The next generation�separated from the current not only by years but by experience and understanding of what the world is�of legal leaders across the nation are examining, selecting, and editing the ideas that, if implemented, will become their world. In part, this is the first step to giving ownership of the law to the next generation of lawyers. This ownership is helpful to strengthening the sacred trust between lawyers and society. (Law is, of course, a profession, not merely a career or a business. It is a calling with which a responsibility is attached.) Also, and most pragmatic, this helps allow discussion of new ideas. Today�s academics, judges, and practitioners are "forced" to see new ideas that otherwise might languish, unpublishable due to professional animosity and/or institutional inertia. Although some say journals just seek the top names and names just seek the top journals, innovative ideas will find homes�helped along, of course, by the proliferation of specialty journals and the help smaller journals have received through the advance of Lexis and Westlaw, full-text searching, and online publication. By giving tomorrow's lawyers this responsibility, new ideas�beneficial for all�might appear, ideas that could take the law in directions seen as necessary by today�s law students but odd or tangential by those accustomed to the status quo.
Second, it is likewise important to remember that the "academic literature" is different from the ALI Restatements or the Federal Rules because the literature is theory and ideas. It is a first step, not a mandate or even an endorsed recommendation. And although it undeniably influences the practice of law, it is not the practice of law. This serves as the beginning response to those who feel student-edited journals result in the unknowing making decisions about what the law will become. At the worst, the unknowing have �selected� which ideas are discussed; no decisions are made, no lives cut short, and no fines imposed based on law journal article selection.
Third, because most of today's law students will become tomorrow's "practitioners," this helps inform the academic literature in a way that could otherwise easily be lost. The Ohio State Journal on Dispute Resolution, for example, although containing much discussion of theory, is inherently linked to a practical end: dispute resolution. All journals�no matter how theory-bound�remain linked to reality because many of the articles� editors are committed to the practical side of the law.
Fourth, and most obviously, the benefit for tomorrow's "theorists" is clear: a growing familiarity with today�s literature�not to mention a role in the selection and preparation of it for publication�is immeasurably helpful in assuring that students become familiar with work outside their own institution.
Fifth, "today's law students" are making decisions, organizing thoughts, managing staffs, and a variety of other tasks that, although possibly learned in earlier experiences, are further honed through law review leadership. This leadership-training element is, I have found, is among the benefits most easily explained away by opponents of student-edited reviews. This dismissal is yet to make sense to me. I find that lawyers have no problem complaining that law students graduate from law school poorly prepared for the practice of law. Although journals are theory-bound, the assignments, deadlines, and clearly delineated, hierarchical responsibilities are part and parcel of the journal experience�all concepts essential to proper functioning in the practice of law.
Sixth, to linger on that word, "students," for a moment is to see yet another pragmatic benefit: trial by error. No matter what aspect of journal is being discussed, a minor or ten-ton blunder is better made now than in a year or two, when cases or clients are involved and the consequences involve words like "malpractice" and "disbarrment." The purpose of law school is, after all, to begin a learning and understanding of the law. This is the place, more than any other, where�even if it so in the case of running the law reviews, which I think it is not�students should be given more than they can chew.
Finally, "different" treatment is justified if one believes that the law is a starting point, a base point from which all others can begin to examine, understand, and judge our society. (This, although an arguably valid view, is not one necessary to any of the preceding points; perhaps, student-edited journals would help other academic pursuits as well.)
For these reasons, I strongly support student-edited law reviews as a genius of our legal institutions.
There is, however, much opposition to the student-edited review. In Bernard J. Hibbitts article on the future of law review articles, Last Writes?: Reassessing the Law Review in the Age of Cyberspace, 71 N.Y.U. L. Rev. 615 (1996), he gives several other (alleged) problems with current law reviews.
The problems he cites: (1) "the absolute number of law reviews has skyrocketed in the past thirty years"; (2) "the pressure on legal academics to publish, to publish more and to publish more frequently has become much greater in the last ten to twenty years"; (3) "changing patterns of student-faculty interaction in contemporary American law schools"; (4) "[d]oubts about the educational benefits of law review"; (5) "interdisciplinary turn in legal studies has prompted professorial objections to the judgments of law review editors who, for all their raw interest, have little or no graduate training in other disciplines"; (6) "law review writers have ceased writing about professional, doctrinal and local issues"; (7) "law professors have tended to produce articles that are on average longer and more heavily-annotated than those written, say, forty years ago"; and (8) "law reviews have become more controversial as law students' social attitudes and writing abilities have changed."
In way of a preliminary response to a common critique, it is essential to remember that any pressure to publish is a creation of the law schools and not their students' reviews. Of Hibbitts' problems, Nos. 2, 6, and 7 are of the law schools' creation. No. 3 is influenced by society, but is�at bottom�controlled by the law schools. No. 1 has certainly been exacerbated, if not caused, by No. 2.
No. 5 is particularly interesting in light of the on-going discussion about the value of diversity on law reviews. If part of diversity involves, say, an understanding of feminist or critical race theories, political theory and philosophy, or even dance and other art forms, then the call should be that diversity is not only essential for the future of the law, but for the present theorists' benefit as well. As a simple example, a French-speaking student received kudos from our Journal editors because he was able to help prepare an article for which many of the original sources were in French. What I am suggesting, despite several bloggers' cries to the contrary, is that perhaps an effective journal should worry about more than just grades, writing, and Bluebooking. Although these elements are essential, so might be others. It is short-sighted to resist the constant need to expand our vision of who exactly a valuable review staffer or editor is.
No. 4 is worthy of discussion. All Hibbitts gives, however, is two former editors (one of whom he even writes is "disaffected") giving mealy-mouthed complaints that all they learned is bluebooking. Although I am interested in hearing responses supporting this complaint, I believe I already have given somewhat of a response above.
No. 8, I would argue, reinforces my main point that if students' social attitudes are changing, then both the connection to the law created by and the evolution of the law forced along by students' control of the journal process becomes all the more essential. The second half of Hibbitts' complaint (students' writing abilities), again, I would argue, falls�in the end�on the law schools.
With that, I am open for suggestions, comments, and criticism.