Rebuilding bridges: the bar, the bench, and the academy.

AuthorWaxman, Seth P.
PositionLaw reviews and the legal profession

It's an honor to be here on this momentous occasion--the 150th anniversary of the founding of Penn's Law Review. I understand that Penn is engaged in a bitter struggle with Harvard for the title of the "oldest law review." Since it appears that you can truly claim 150 years, you seem to be the victor. As the oldest law review, however, you have a lot to answer for. And so, on this great occasion, I would like to reflect for a few minutes about some of the problems with law reviews, and more broadly with law schools and the legal profession, and then offer a few suggestions about how things perhaps could be made better.

More than sixty years ago, in an essay that has become deservedly famous, a young, dynamic law professor said goodbye to law reviews. Vowing never to write another law review article, Fred Rodell said: "There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground." (1) That does sum it up nicely. But Rodell went on from there. He pointed out that

though it is in the law reviews that the most highly regarded legal literature ... is regularly embalmed, it is in the law reviews that a pennyworth of content is most frequently concealed beneath a pound of so-called style. The average law review writer is peculiarly able to say nothing with an air of great importance. (2) Rodell complained that law review articles weren't clear, weren't funny, and weren't interesting. "It seems to be a cardinal principle of law review writing and editing," he observed, "that nothing may be said forcefully and nothing may be said amusingly.... The best way to get a laugh out of a law review is to take a couple of drinks and then read an article, any article, aloud. That can be really funny." (3) He objected to the law reviews' infatuation with the footnote--a "foible," he said, that "breeds nothing but sloppy thinking, clumsy writing, and bad eyes." (4) But although Rodell poked fun at law review style, his serious point was that legal writing, by and large, was irrelevant "navelgaz[ing]." (5) He saw the typical law review article as "the building up, rebuilding, and sporadic knocking down of pretty houses of theory foundationed in sand and false assumptions." (6) And he said:

With law as the only alternative to force as a means of solving the myriad problems of the world, it seems to me that the articulate among the clan of lawyers might, in their writings, be more pointedly aware of those problems, might recognize that the use of law to help toward their solution is the only excuse for the law's existence, instead of blithely continuing to make mountain after mountain out of tiresome technical molehills. (7) I'll leave it to you to decide whether Rodell's picture of law reviews is outdated or not. I first came across Rodell's article when I was editing a review of another publication for which you are partly responsible--the twelfth edition of A Uniform System of Citation, affectionately referred to as the Bluebook. (8) (For those of you who have been living in a cave for the past few years--or in the real world--we're now up to the seventeenth edition.) But back in the days of the twelfth, Rodell's essay struck me as depressingly accurate. In particular, I was struck by the notion that law review literature--and much of the work done in law schools--largely described a closed universe, with little or no input from, or effect on, the outside world.

Since leaving law school, I've continued to ponder what can be done about this phenomenon. Why does there often seem to be so little connection between the work being done in law schools and published in law reviews and the profession for which law schools prepare their students? Why does the relationship among law schools, judges, and practicing lawyers seem so dysfunctional?

My tenure as Solicitor General (SG) gave me a unique opportunity to look at this dynamic from a unique perspective. The legal profession is composed of three branches--the academy, the bench, and the bar--which increasingly seem to define separate worlds. Traditionally, the SG seeks to reach out to all three worlds. As the United States' lawyer in the Supreme Court and the nation's chief litigation strategist, the SG is, of course, first and foremost a practicing lawyer. But, as the so-called "Tenth Justice," the SG also has extensive and important responsibilities to, and contact with, the judiciary. And the position claims a...

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