Are Law Review Articles A Waste Of Time?

Are law review articles too long? Are they even scholarly? Do you care? Maybe you should.

Recently, Professors Carrissa Hessick, Eric Segall, and others continued the debate that started out at LawProfBlawg’s Loyola University Chicago Symposium on the Future of Legal Scholarship.  I knew there was going to be trouble when I saw Hessick and Segall having a vigorous, albeit refreshingly civil, discussion about law review articles.  That carried on after the conference.

Professor Hessick lobbed the first volley on Profsblawg.  Hessick rejected the notion that law review articles are too long or that the investment in writing them could better be placed in alternative formats like blog posts.

Segall responded on Dorf on Law.  He criticized the notion that longer law review articles communicate more information than shorter ones given the obscene amount of footnoting.  He also called into question the hierarchical nature of law review placements.

On Twitter, Hessick responded to some of my own concerns by suggesting that professors are better able to position themselves as experts if they have written law review articles on the topic, or if they have serious practice experience.  I hope I’m characterizing all of this fairly, albeit briefly.

I think that there are some serious problems with law reviews, and they do not have to do with the size of the articles.  The problems with law reviews have to do with how articles are selected, the hierarchy’s meaning for people’s careers, and the true value of the scholarship endeavor.  So let me add a few ideas to this Scholarly Debate on Non-Scholarly Fora about the meaning of Scholarship.

Are law review articles too long?  Do I care?

Before I get into answering this, Part I of this blog post will discuss the theoretical underpinnings as to why articles are so damned long right now.  Part II will discuss every article ever written that was billions of pages long arguing about why law review articles are too long.  Part III proposes that articles are too long because Parts I and II are completely a waste of time (see peer-reviewed articles).  Part IV offers concluding remarks.  Okay, just kidding.  But that’s how a law review article on the topic would read.

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According to Professor Hessick, upon writing such an article, I would be an “expert” on a topic, assuming the article is of good quality.  The problem is: That pretty much makes any student who has written a thorough paper an expert, yet we don’t seem to hold them out as being so.  We also don’t view published student papers as signaling the same level of expertise as those written by law professors.  The hierarchy still reigns supreme.

Having said that, there is value in law review articles.  But the value is in the ideas communicated and to the extent that the articles suggest ways to make the world of law better or point out flaws that make law worse.

Do the rankings signal quality, asked the prof who claims to come from a top 100 school?

That raises the second and more important issue, which Segall points out.  If you look at all the articles published in the top 10 law reviews, it is very difficult to find someone who didn’t graduate from, or who doesn’t work in, a top 10 law school.  Economists might call this a serious endogeneity problem.  Another way of saying this:  To the extent I can’t seem to find articles by practitioners or people who graduated outside of the top 10 published in top 10 law reviews, we might conclude that practitioners suck at writing law review articles and so do people who didn’t graduate from the top 10 law reviews.  But wait!   Some of those people who have published in top 10 law reviews and who work at top 10 law schools also have practice experience.  Perhaps they were the only ones sprinkled with magic fairy dust?

Worse, I’m concerned about what I’ll find in terms of the number of women and people of color published in the top 10 law reviews.  A random sample of the top 10 law reviews suggests that the number of women authors in 2017 is around 20%, if I’m generous and count repeat players.  Heck, it might even be up to 33% for the population.  But that still raises some serious questions about the law review hierarchy, too.  Would Professor Anthony Kreis’s suggestion that law reviews do blind review cure this problem?  Why am I worried that it might depend on the composition of the Board?  Perhaps I’m worried because of some of the signaling literature I’ve read.

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And even worse, the practice of expediting suggests the quality signals actually read from the bottom up, not top down.  It’s true, as Professor Kreis points out, one can get an offer from a top law review along with a stack of rejections from lower ranked schools.  But what is more common is signaling to the top law reviews via the “expedite” process.  That means lower rankings are the first signal as to quality, not the top ones.  Either way, it’s a seriously perverted market.

It gets even sillier when one thinks about how rankings change for some schools over time.  I might have published in a 2nd tier law review, only to have it later become a top-tier law review article.  I know those changes are rare, but even with more incremental change it suggests a problem in terms of determining quality from ranking of law review.

In short, I worry that the rankings perpetuate the ceilings one finds in legal academia based upon race, gender, and — to the extent alma mater is used as a signal — class.  And I worry about the reinforcement mechanism that the rankings have become.

The blogger then asked: Should law professors be writing things other than law review articles?

Professor Hessick argues:  “There are already many (perhaps too many) incentives for law professors to write non-scholarly pieces.  Our reputations and egos benefit from publishing an op-ed in a national newspaper, appearing on television, and other activities that are aimed at the general public.  We feel good about those publications, other law professors appear to covet them, and our schools’ communications departments are delighted every time we engage in such behavior.  So I don’t think that we need to change our promotion and tenure standards to incentivize this behavior; the incentives are already quite strong.”

My problem with this argument is that it pretty much applies to law reviews, too.  Our reputations and egos benefit from a well-placed law review article (and we might even get financial benefit, too).  We feel good about those publications, and other professors appear to covet them.  Our schools delight in sending law porn about where and how much we publish.  So, I might argue, albeit facetiously, that Professor Hessick’s argument suggests that perhaps we don’t need law review articles in our tenure standards, either.

Professor Hessick might reply that at least the law review article is scholarship.  I would suggest there are many forms of scholarship, and the law review article is but one.  Are articles in peer-reviewed journals legal scholarship?  If so, why do they not seem to be, generally speaking, as valued in legal academia as law reviews?  Where are the empirical articles in law reviews?  I could go on.

I suppose the issue here is: What is legal scholarship?  If the goal of scholarship (however defined) is to make society better off, then I’m skeptical that the vehicle of delivery matters, assuming that I’m savvy enough to choose the best vehicle to support my goal.

As an example, suppose I have a law review article that is cited by SCOTUS.  Suppose I also have a blog post that is cited in a law review article.  Suppose I also have a tweet thread that creates a successful theory to get a plaintiff relief in a district court.  Query: Which activity of mine created the most value to society?

Even if my goal is solely so I can humble brag about how utterly amazing I am (and no, that should not be the goal), which activity created the greater appearance of expertise for me?  I suspect most of us would say the SCOTUS citation.  I think that’s a shame, because it ignores whether or not the citation was just that, or whether the article truly helped the justices decide the case.  And we lack sufficient information to determine which contribution improved society the most.  Did I save the plaintiff’s life?

While my musings probably mean that I do not agree with my dear friend Professor Hessick, I don’t go as far as to agree with my dear friend Professor Segall either.  I have fears similar to Professor Hessick’s.  I don’t find many of Larry Tribe’s tweets all that valuable in terms of scholarly importance, and I don’t find Alan Dershowitz’s media contributions to be informative, either.  I’m not a big fan of giving someone the imprimatur of expert merely because he’s from Harvard and claims expertise.  I also worry that the things they tweet and say might actually be damaging their reputation.  If they were untenured, should they get tenure rewards for that?  Professors Segall and Hessick might agree that Tribe and the Dershowitz are engaged in punditry and should not get benefits from their news and twitter activities.  But then: Do we want to start telling law professors how to maximize the advancement of their career?  Who gets to be the judge of the value of my writing, regardless of format?

Hopefully the answer is: My work, regardless of format, is evaluated on its merits by readers, based upon the merit of the idea, not where I come from, what I look like, where I graduated from, and what my credentials are.  If that isn’t the standard for law reviews, maybe we should just agree we are guilty of perpetuating a hierarchy.  Some of us do that out of one side of our mouths, all the while boasting of our placements out of the other.  To quote Omar: It’s all in the game though, right?


LawProfBlawg is an anonymous professor at a top-100 law school. You can see more of his musings here He is way funnier on social media, he claims.  Please follow him on Twitter (@lawprofblawg) or Facebook. Email him at lawprofblawg@gmail.com.