Law Reviews

• Publication year: 2021

76 Nebraska L. Rev. 681. Law Reviews

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Richard S. Harnsberger*

Reflections About Law Reviews and American Legal Scholarship

TABLE OF CONTENTS

I. Introduction 681

II. A Curious Way of Doing Things 682

III. Why Do Students Join Law Reviews? 685

IV. Is Criticism of Law Reviews Justified or

Is It "Full of sound and fury, signifying nothing?" 686

V. From Practical to Theoretical Legal Scholarship 689

VI. Yet Another Accusation: Law Reviews Are the Cause of

the Supreme Court's Poor Literary Style 699

VII. A Final Complaint: A Great Deal of Law Review

Language Is Incomprehensible 699

VIII. Expert Testimony in Opposition to Abolishing Law

Reviews 701

IX. A Possible, but Unlikely Change of Circumstances 702

X. Conclusion 702

I. INTRODUCTION

There is in no other profession and in no other country anything equal to the student-edited American law review, nurtured without commercial objective in university law schools alive to the imperfections of the law, and alert to make space for the worthy commentary of an unknown student as well as for the worthy solicited or unsolicited manuscript of renowned authority Time is with the law reviews. An age that churns up problems more rapidly than we can solve them needs such fiercely independent problem-solvers with long range solutions.(fn1)

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When the editor-in-chief of the Nebraska Law Review asked me to write an article for this issue, I decided the occasion was appropriate to describe law reviews and then discuss some of the principal criticisms aimed against them: law reviews have obscure writing, are full of useless theoretical articles, are poorly edited by immature students who are ill-prepared to judge good scholarship, have an excessive number of board members, have insufficient faculty involvement, and contain too many footnotes. The last criticism is easy to answer. Read only the text. The other criticisms raise more complicated problems.

This commentary begins by describing a typical law review institution and the reasons why students join. Then, it sets out in some detail harsh attacks made by Professor Fred Rodell of Yale, Dean Roger Cramton of Cornell, and Judge Harry Edwards, a former professor at both Harvard and the University of Michigan before his appointment to the United States Court of Appeals for the District of Columbia Circuit. Lastly, this article examines reasons for the noticeable shift from "practical" to "theoretical" commentary in the nation's law reviews, and, in addition, the allegation that this switch has made the reviews useless to lawyers and judges.

I admit a bias. I very much like law reviews, the Nebraska Law Review in particular, because the articles have been of great help to me. One can take special pride in noting that between 1989 and 1991, the article most cited by all the courts in the United States was published in our Review.(fn2)

II. A CURIOUS WAY OF DOING THINGS

Law reviews are a unique institution found only in American law colleges.(fn3) They are run completely by students who publish between two and eight issues each year. Some schools have a number of reviews. For instance, Harvard(fn4) has twelve publications; Columbia,(fn5)

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Michigan,(fn6) and Yale,(fn7) eight; Stanford,(fn8) five; and Cardozo,(fn9) four. It is quite a surprise to discover the number of these publications. The Harvard Law Review was first published in the spring of 1887. By 1928, forty-two years later, thirty-three student reviews had emerged. By 1944, just before most of the schools closed during World War II, there were fifty-five reviews in operation.(fn10) The most recent figures I have seen were compiled by Professor Michael Hoffheimer,(fn11) who lists

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172 general student-edited law reviews in the country, plus 242 special focus student-edited journals.(fn12)

It is estimated these periodicals turn out 150,000 to 190,000 pages each year, so it is clear that the reviews themselves are an important part of the legal service industry. They remain, however, only a fraction of the $100 billion spent each year for legal services (a figure that does not include the cost of house counsel).(fn13)The student-edited law reviews are supported partly by subscription proceeds, but most of the costs are paid by the parent law school. Offices, secretarial help, and word-processing equipment usually are provided. Most schools grant stipends or scholarships to editors, and the editors also commonly earn hours of credit to fulfill graduation requirements.

Reviews are divided into two parts. The first component contains what are called "lead articles." Most of these are authored by law professors, but judges, attorneys, and persons from disciplines other than law also contribute. The second component consists of student written work, i.e., comments, casenotes, essays, and book reviews. No item is printed unless the law review editors decide it is correct in fact and form and suitable in subject matter.

It is said that law reviews do not take stands on political questions, but that is untrue. When a review selects articles in one particular area rather than another, it immediately becomes an important actor in our continuing national dialogue. Certainly the law reviews have provided a meaningful and important forum for feminists, supporters of critical legal studies, critical race scholars, and the law and economics movement.(fn14) I have read of only two exceptions to the "don't be explicitly political" maxim. The first occurred when forty-four editors of the Harvard Law Review, "speaking for themselves," published a statement critical of the Vietnam War; the second when the George-town Law Journal protested apartheid in South Africa by refusing to renew the University of South Africa's subscription.(fn15)

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There are three methods of selecting members for a review-"grade-on," "write-on," or "publish-on."(fn16) At this institution, all students in the upper ten percent scholastically at the end of the first year are invited to become members. In addition, we have a write-on procedure in which any student who passed the first year without being on academic probation can enter the competition, which is judged solely by the current editorial board. Our review has no procedure to gain admission by submitting a student note that is accepted for publication.

Before discussing the purpose of a law review, one further observation should be made. The editor-in-chief of the Nebraska Law Review is chosen by all members, and she sets the tone for the enterprise. She is the governing authority. For instance, in the event of a conflict between an editor and an author who has submitted a manuscript for publication, her decision is final.(fn17) One can only wonder about this strange and remarkable circumstance of student oversight and control.

Consider the following scenario. Professor Roger Law Bright (Phi Beta Kappa, Order of the Coif, law review at Elite Law School, B.C.L. Oxbridge) is hired by our law college to teach jurisprudence. Susan Bluebook, a bright but inexperienced second-year student whose application for admission to Oxbridge was refused, is a law review editor. Roger is evaluating a paper Susan has submitted to him for three hours of credit for independent research. At the same time, as an editor Susan is evaluating a manuscript written by Roger in the style advocated by the critical legal studies movement. Roger's future salary, but more importantly his chances for promotion to associate professor and the likelihood of eventually gaining tenure are dependent upon Susan's evaluation.(fn18) A month passes, and then Susan reports

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that Roger's work is overly polemical and unpublishable. Her appraisal embarrasses Roger and may irrevocably harm his career in academe. Of course, with sufficient patience and enough postage stamps, Roger eventually will get his work published somewhere. Nevertheless, later publication cannot solve his predicament because regardless of what happens at this point, Roger has been repudiated by his own school's law review. Such role reversal would be regarded as bizarre in other departments of a university and in the great centers of learning abroad.

III. WHY DO STUDENTS JOIN LAW REVIEWS?

Law schools enjoy a symbiotic relationship with judges and the practicing bar. The schools act as the initial gatekeeper for the legal profession by utilizing entrance examinations to screen persons who show little or no aptitude for law. They then rank their students in numerical order each year according to grades and cumulative class standing.

All this is very helpful to law firms and to judges because the data enable them to reduce the number of potential employees they need to interview. But the best help of all to employers is the certification "law review student." This guarantees that the "school within the school" has trained the student to perform many of the tasks judges and lawyers want employees to do. It is this ultimate law review credential that truly saves employers tremendous amounts of time, money, and energy.

In the final analysis, it is true that most students join a law review board because membership is a tremendous asset in the job market. Of course, some join because they think a law review experience is the best education the school has to offer. Others enjoy the prestige of being known as a "law review student." There is also a real feeling of personal satisfaction when a huge amount of hard work results in a published article.

I might say parenthetically that it is possible to resign from a law review board and yet be successful, even attain fame and great prestige. One very prominent jurist, Judge Learned Hand, quit the Harvard Law Review after working on only four of eight issues. Hand said he was...