Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Tuesday, August 16, 2005

Red Alert: Fordham Law Review is *Still* Interested in the "Quality" of Articles--unlike Columbia, Cornell, Harvard, Michigan, Stanford, Texas, Virginia et al.

In the annals of ill-conceived solicitations from law reviews, the one I received today (a mass mailing to law professors nationwide) from the Fordham Law Review is likely to be added to the list of "what not to do":

As you may have heard, a group of law reviews, including Columbia, Cornell, Duke, Georgetown, Harvard, Michigan, Stanford, Pennsylvania, Texas, Virginia, and Yale, recently announced their intention to limit the length of articles.  For example, Harvard Law Review will not publish articles longer than 70-75 law review pages "except in extraordinary circumstances."

The Fordham Law Review...disagrees with this policy.  We believe that quality is more important than quantity.  Therefore, we will continue to focus only on merit in choosing what articles to accept.

Yes, indeed, that's exactly what the top law reviews were saying:  "We don't care about quality or merit, we care only about number of pages."  But, thankfully for the verbose and undisciplined, there remains a journal courageous enough to publish unreadable, reinvent-the-wheel tomes posing as articles:  the Fordham Law Review!  What would we do without it?

The decision by the top law reviews to emphasize a strong preference for shorter articles (and 70 pages is not exactly short!) was, of course, driven by qualitative considerations, not quantitative ones:  namely, the entirely correct perception that, with rare exceptions, articles clocking in at 80 or 90 or 120 pages were unnecessarily and gratuitously long, and that their scholarly merit suffered accordingly.   The idea that, in the wake of this decision, only the student editors at the Fordham Law Review will be considering "merit" is, shall we say, a bit amusing.

On the other hand, one smart thing the Fordham Law Review editors do say in this solicitation letter is the following:  "we realize that a student editor's role should be to aid the scholar who wrote the piece, not to burden him or her needlessly."  That's the real mystery about the student-edited law reviews which are, as we've remarked previously, a scandal:  any of the 17-or-so high-profile student-edited law reviews could gain an immediate edge over the competition by adopting the policy of no editorial harassment of authors (no subliterate "editing for style", no demands for meaningless parentheticals, no requirements of "authority" in support of the banal and the trivial, and so on).  Why hasn't it happened?

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» More on Law Review Length from madisonian.net
Is Brian Leiter being too hard on the student editors of the Fordham Law Review? Fordham’s letter, which arrived in today’s mail, describes the elite law journals’ length policy, announced earlier this year, and then: The Fordham L... [Read More]

Tracked on Aug 17, 2005 7:15:02 AM

» Sniping from Letters of Marque
Brian Leiter manages to snipe at both Fordham and the top law reviews about the article length policy, leading to many people responding, most of which I haven't read. In response to one I have read, Paul Horwitz over on... [Read More]

Tracked on Aug 21, 2005 7:35:49 PM

Comments

The letter states: " ... we will continue to focus only on merit in choosing what articles to accept." Does this suggest that the student editors will conduct a truly blind review, disregarding author name and bio, letterhead, etc.? And how do student editors (who may know little, if anything, about a topic) focus only on merit, when comparing numerous manuscripts on a variety of topics (e.g., con law v. UCC; crim pro v. tax; etc.) raises the inevitable apples/oranges argument?

Posted by: tim zinnecker | Aug 16, 2005 8:13:53 AM

I wonder who advised the student editors of Fordham L Rev? Bashing the reviews of Harvard, Chicago, Michigan, etc doesn't seem a good idea whatsoever. In addition, they are truly mistaken if they think that in being open --at least in principle-- to papers 100+ pages in length will ensure their quality is better than the competitors. This is utter crackers!

Posted by: Thom Brooks | Aug 16, 2005 9:24:56 AM

>>Why hasn't it happened?

It has happened, really. We all market ourselves as "light touch" journals. But once we start editing, we just can't stop. An extra footnote here, a few hyphens there, a handful of em-dashes here, and before we know it, we've rewritten your entire piece.

Are most of us "subliterate"? Yes. (I, for one, read at roughly a third-grade level.) But so, sadly, are a few of your colleagues.

If everyone wrote like Brian Leiter, we wouldn't touch a thing. Honest.

Posted by: Mike Laussade | Aug 16, 2005 11:51:49 AM

For those missing the "inside joke" here, Mike is EIC of the Texas Law Review, and having had him in class last term I can attest that he is, in fact, highly literate. What strange spell befalls him when he seizes his red pen, though, I do not know.

Posted by: BL | Aug 16, 2005 11:55:32 AM

Even those of us who are not and have not been EIC of TLR ("as seen on MTV") know of the beguiling spell of the editor's pen.

We swear, we don't mean to take your brilliant, ringing phrases and load it down with crapulence. But, when you have a dangling verb, sans subject, sans object, sans anything, we tend to take an interesting. When a controversial proposition is stated on p.3, and the author cavalierly notes "see infra, at pages 7-92, inclusive," we wish to see some more focused citation. When the Bluebook, which I hold as an almost unmitigated evil but which is yet the Law of the Land, is scorned in favor of citation schemes directly out of Alice:

A citation is what I wish it to be, no more and no less...

Then we again must sigh, flip open our bluebooks, ready our red pens, and set to work. Who writes these things, which appear before us? With a few exceptions, they are ciphers to the 2L grunts hard at work. A last name, perhaps a title, and if you inquired a law school affiliation, but many of them are unknown to us, and effectively anonymous.

Surely, someone is impressed that it is the honorable Judge from the Nth Circuit, or that the author was just nominated to head up the Department of This and That (see NYT, WSJ, WaPo...). But it is not us, the weary editors who are not in chief, not even of counsel, but merely associates, burning the midnight oil.

I have personally witnessed the despair of the associate editor faced with a string cite to foreign language laws, particularly the more obscure constitutional court's statements from a dozen different countries.

A few requests:

- if you're going to do it in a foreign language, provide us with the dictionary reference.

- if you're going to use a novel, tell us which copy you're using, edition and number of pages total.

- if you're going to cite to "on file with the author," then by god have a secretarial assistant or law student intern copy the gol-darn thing and provide it to us! We're the editors! We need this stuff, and not at the last moment.

Some of the most aggravating moments as a cite monkey involved authors who were away and unavailable as their precious work product went through editing. We would receive photocopies periodically, but were still waiting on an exceedingly rare copy of a book to be sent by carrier pigeon from the Library of Congress - and the entirety of Section IV depended on it! How did we know if the proposition the cite stands for is supported? Worse, how do we know you're not just pulling our legs?

I agree: the banal and the trivial need no support. But, for us the stupid, they surely help to focus our narrow minds, and lead us on, not unto temptation.

Posted by: Eh Nonymous | Aug 16, 2005 12:24:34 PM

In a way, "Eh Nonymous's" posting illustrates the problem with a great deal of student editing. The issue has never been editing to correct dangling verbs or gross grammatical errors. The issue has been the silly "rules of style" with which many law reviews operate, and which bear no relationship to style.

The other problems with student-edited law reviews are actually nicely illustrated by what Eh Nonymous takes to be perfectly reasonable demands, to wit:

"if you're going to do it in a foreign language, provide us with the dictionary reference."

Real scholarly journals don't make these kinds of absurd demands: editors are presumed competent in the material, and if editors are not, then perhaps there is a problem much deeper than the unintelligibility of a citation to a foreign court. Or similarly:

"if you're going to cite to 'on file with the author,' then by god have a secretarial assistant or law student intern copy the gol-darn thing and provide it to us! We're the editors!"

Yes, you're the editors, but there is no reason editors need to review each citation. It really is that simple.

I realize that some of these "evils" arise from the Blue Book, but perhaps it is time for someone to acknowledge that Blue Book rules, which have some virtues for citation practices in court opinions, are a positive hindrance to serious intellectual work.

So here's a different thought: maybe some law review should advertise that they will not use the Blue Book and will, instead, edit based on...well how about sensible editorial and scholarly principles employed everywhere else?

Posted by: BL | Aug 16, 2005 2:04:03 PM

I am not a fan of student edited journals; for most of the reasons already stated. The question remains that if you cite something, especially if it stands for something even moderately important, and say "its on file" you expect the editor to take your word sight unseen? That sounds like it wouldn't happen in most other fields and it shouldn't happen in law either. Part of the editors job, student or not, is to make sure the articles they print are grounded in something; making sure an author is not citing something that simply doesn't exist seems a basic rule. It is especially true when no one in the world at large is going to be able to cross check the cite. The author presumably has limited access (otherwise it would have a more general cite).

The idea that editors must know enough of every language to find and interpret every foreign language cite that comes along their desks seems rather inapposite as well. Especially if there is any sort of extended citation to foreign courts' decisions that are in other languages. Not every student editor and professor reading the published version is going to know or care enough about what you have to say, especially if you can't be bothered to translate it yourself, to acquire translation.

I do agree. The Bluebook is a stupidity unrivaled by any other academic system. Harvard and all schools that use it should hang their heads. Anything that makes the MLA look sane is an abomination.

Posted by: Sam | Aug 16, 2005 3:21:52 PM

"So here's a different thought: maybe some law review should advertise that they will not use the Blue Book and will, instead, edit based on...well how about sensible editorial and scholarly principles employed everywhere else?"

Isn't this what Chicago has largely done? Chicago doesn't use the bluebook; it doesn't edit for style. It does insert parentheticals after cites (which I agree is dumb), but in many respects it seems better than most of the top journals. (It also didn't sign onto the length decree, which is probably pretty dumb of it.)

Posted by: Anonymous | Aug 16, 2005 3:48:32 PM

A few thoughts and a question.

It is clear that we (student editors) are generally *not* competent in the material. This seems beyond debate. However, absent a move away from student-edited journals (which appears unlikely), we're left trying to make the best of a bad situation. As a result, we tend toward meticulous attention to detail, and thorough investigation into whether the material cited in support of a proposition actually does support the proposition. This is, quite literally, all we can do. As to the question of whether we should be doing it ("there is no reason editors need to review each citation"), let's examine the case for and against the practice.

For: (F1) Anyone who has actually gone through unedited articles carefully, checking to see whether controversial propositions are actually supported by the citation that is supposed to support them, has likely been shocked (SHOCKED) at how frequently citations are simply inaccurate, doing nothing to support the proposition asserted. Student editors can catch this, which is useful both in its own right, and because it promotes a healthy skepticism with regard to the quality of a particular piece. The more the citations seem weak and misleading, the more likely the piece is lousy. (F2) If consistent citation practices are not employed, it is entirely possible that an obscure source will simply be impossible to relocate based on the citation. (These are often not books with ISBN numbers attached... This is a worry that is somewhat unique to generalist law reviews, which encounter a tremendous diversity of sources--particularly when compared to a discipline such as Philosophy.) (F3) As ignorant student editors, faced with the task of evaluating 'expert' work, one of the only ways to do *anything* to prevent shoddy, unoriginal, and otherwise second-rate work from being published is to see whether that work is supported by what it claims to be supported by. We can do a decent job evaluating arguments, organization, clarity of expression, and the like, but we really are limited when it comes to assertions of fact. There is worry of a vicious circle here, but that worry is robust only in cases where Law Review articles are cited in support of factual propositions--something that any good editor will discourage. One of the best way to make a non 'peer-reviewed' journal better is simply to give a lot of weight to whether the piece is supported by the peer-reviewed work to which it cites. (F4) Well written parentheticals can be extremely useful for "serious intellectual work", summarizing how exactly a particular source supports a claim, and providing a sense whether a reader might profitably explore the cited source further. This is us doing the work for you; if it is done well, and done reliably, it's a serious time-saver.

Against: (A1) It's annoying for authors to have to support every trivial thing they might assert(e.g. 'the population of Texas is larger than that of Oklahoma'). (A2) Student editors aren't very good at identifying whether the proposition actually *is* supported by the cited source. (A3) The 'citation review' tends to focus more on obscure Bluebooking demands, rather than on anything of substance. (A4) It's not important for editors to go over everything with a fine-toothed comb since the quality of the work is ultimately the responsibility of the author; the fact that his or her name is attached is enough to ensure responsible citation.

I can't think of any further reasons against the practice, and though (A1) is certainly worth noting, I think that most journals avoid this sort of misplaced attention to detail. (A2) seems false, except in extreme cases. Good journals will train their editors to avoid the 'rule-worship' of (A3). Many journals, such as ours, deviate from the Bluebook when it seems sensible to do so. And (A4) isn't enough, since, as Prof. Leiter has noted in the ID/HLR/VanDyke context, reputations can be built off of a single top publication--even after the particular article has been destroyed with objections.

The fact that Law Reviews are edited by generally ignorant students seems to make attention to citation MORE important, not less important. If that requires us to burden authors more than "real scholarly journals", perhaps it is a price worth paying--at least in the absence of much movement toward peer-edited reviews. (A move which is probably not going to happen throughout the profession, even though it probably should.)

As with most law reviews, our 'style' suggestions are minimal, and only suggestions.

My question for the board is this: which common editing practices seem least sensible (where that is some sort of function of annoyingness and justifiability)? I'd like to eliminate those, where possible.

I guess a second question might also be useful: will we see student-edited journals die out? Why or why not?

Posted by: Alex Guerrero | Aug 16, 2005 4:21:44 PM

In light of Mr. Guerrero's interesting and quite thorough analysis of the matter, I should emphasize that what I said was only that,
"there is no reason editors need to review each citation," and let me now lay emphasis on each. There is value to checking citations, but when checking citations involves pestering authors who may, in fact, have already checked the citations, then we get into the realm of editorial nuisance, as it were. I do think the author bears the responsibility for the integrity of his or her scholarly citations, and the fact that student-edited law reviews provide slave-labor to allow authors to shirk that responsibility is one of my objections to the genre. (An enormous amount of time of intellectually able students is wasted doing the work that the authors should have done themselves.)

There are also parentheticals that serve a useful purpose, but every philosophically-minded author has had the experience of being asked to supply a parenthetical for a citation to Kant's Critique of Pure Reason or Plato's Republic. I am quite sure Mr. Guerrero shares my sense that this serves no purpose and is, indeed, quite absurd.

I am struck by the contention from several posters that, in fact, the student-edited law reviews are now all reasonable, flexible, unintrusive (except for dangling verbs!), and the like. Law professor readers, is this true? I have not done a straight submission to the student-edited law reviews since getting tenure, and what I have published in those fora have been commissioned pieces, with rather explicit understandings up front about the terms on which publication would be made. So perhaps the norms and practices have changed significantly since circa 1997, and these criticisms are now dated. I am slightly skeptical only because in one case of a commissioned piece, the initial editorial revisions were intrusive and pointless. But maybe this is the exception that proves the (new) rule. I'd be curious to hear from law profs who submit more regularly to the student-edited law reviews.

Posted by: BL | Aug 16, 2005 4:41:29 PM

Of course, the real problem is not with student edited journals, but rather the use to which these journals are put by those who evaluate faculty. The lunacy of using these journals as indicia of publication quality is clear. Imagine a top finance journal edited by MBA students and you get the picture. That these outlets are student edited forces verbosity. In order to have a chance that a 3L will understand a paper, the author must start at the very beginning of her argument. In any other discipline the author can assume that the editor and referee are familiar with the subject matter and thus the section placing the paper in context can be much shorter. The editor's evaluation of the paper, then, is based on the contribution that the paper makes, and not on such poor signals of quality as the ability to follow arcane citation rules. There is, in fact, an alternative to student editor journals, peer review -- and good law schools know that first rate peer reviewed journals are every bit as good as high prestige student edited journals.
We can move to peer review and leave the student edited journals to reviews of recent decisions and student notes. If there are fewer journals, let students use moot court as an honors program.
We could even, G-d forbid, save a few trees in the process.

Posted by: MW | Aug 16, 2005 5:25:30 PM

I am a relative neophyte to any kind of publication, but my experience in the last year has been relatively intense. Much of what I do is after the "and" in "law and...;" I really do feel for the poor 2L and 3L souls who are supposed to figure out if what you just said about the application of the Critique of Pure Reason to preferences under the bankruptcy code is supported by the "citation." When I encountered student-editing for the first time, and called one of my law school classmates (a distinguished professor at a "top five" school) for advice and sympathy, he said something I thought was both wise and kind (he is a wise and kind man): the system is what it is, and responding to the comments, inane or otherwise, is just another opportunity to teach.

Having said all that, I just recently had an article accepted in a blind review by a peer reviewed journal. All of what Judge Posner said in Legal Affairs critique matches my experience: even though the article was accepted, the commenters had sharp criticisms, the response to which substantially improved the paper. Moreover, the paper had grown to 15,000 words, and the editor insisted it be no more than 10,000. I found if you delete the over-citation that law review editors require, and the filagrees and digressions they permit (and which I love to insert), it's not that hard to comply with the word limit, and the paper is better for it. And if the digressions are worth something, they can be the basis of the next work.

Posted by: Jeff Lipshaw | Aug 17, 2005 5:41:44 AM

As a Fordham Alum, I would like add a few points in defense of our law review.

I'm not sure how it is at other schools, but from what I've experienced, the faculty is very much active in the substantive aspects of the editing process. This does not imply that the student editors have no autonomy (or are less capable), but it should at least address the questions scholars have with student edited journals. The Professors (whom receive decent marks from Leiter's Rankings) treat the flagship journal as an educational vehicle for the students and provide an incredible amount of guidance to the student editors. In addition, the Professors are very active in the solicitation process. In the last few years, the Law Review has attracted work from top notch scholars (Dworkin, Koh, Chermerinsky, Okin, etc.). Most of the scholars the FLR publishes have a reputation and would like to maintain their reputation by not publishing crap. So yes, FLR does at least have a history and a system to publish meritorious pieces.

With this in mind, I am not just trying to tout our reputation. Rather, I am pointing out the efforts of one law review's good faith efforts to stay competitive for top scholarship in a crowded market. Fordham Law Review is merely indicating that their editors are willing to spend late nights in the office to accomodate scholars with obscenely long, but intellectually remarkable pieces. I would think scholars would be appreciate the fact that students are willing to go the mile to do the grunt work, rather than deal with ego driven law students setting parameters for scholars.

Posted by: Fordham Lawyer | Aug 17, 2005 11:21:10 AM

As a staffer on the Columbia Law Review, I personally corrected a number of citations that were erroneous, misleading, or just flat-out wrong. I still have (somewhere) some of the sheets I filled out explaining that while Professor Z vigorously complains about the fact that a case went against the plaintiff, the case actually went against the defendant. That's not an overstatement -- a few pages of the article were "I can't believe the judge ruled X" when in fact the judge ruled "not X."

I'm hoping the the professor in question is able to read a case. The only explanation that I can think of is that s/he farmed the work out to a RA.

I would much rather have conscientious fact-checking done by the top students at Columbia rather than incredibly sloppy work from a student at Podunk U. who is being paid $8 an hour and apparently doesn't care at all about the materials.

Not all Columbia articles were like that one. It was the exception, not the rule. Nevertheless, no law review wants to be embarassed by printing a piece that completely misstates the law. And sadly, that means that cite checking is required, even at top journals.

Posted by: Kaimi | Aug 17, 2005 11:38:16 AM

As a side note, there have been some very good pieces that go way over the 70 page limit, and rightfully so. I don't blame Fordham at all. Depending on how strict the top reviews are about enforcing the limit, this could be very good for Fordham. If a professor has done a lot of work and has a 120-page piece that is very good, perhaps she'll send it to Fordham first. Not a bad tactic at all.

Posted by: Kaimi | Aug 17, 2005 11:47:04 AM

Ah, yes, "obscenely long", therein lies the rub. Most active scholars in a field do not need these long articles to understand the argument that the author is making, only 3L's do. Sure, good law school profs write long pieces, that is how they were trained and that is was the current system of student edited journals requires. Moreover, this system encourages the use of RAs to do a lot of grunt work. I can see that this has educational value, but this system, compared with the alternative system of peer reviewed journals which is now arising (and not just in Law and Econ), may be of limited value to scholars . I also wonder if the tend toward turgid prose, and those great parenthetical comments which we all love, is induced in part by word processing software. So, a modest proposal. Any paper longer than some cut-off must be in the certified hand writing of the lead author (so no getting around this by having 77 co-authors). That should cut down on the words. Of course, it will go about as far as my earlier proposal to shrink the size of the Federal government by banning air-conditioning in all government offices in Washington!

Posted by: MW | Aug 17, 2005 12:18:44 PM

I think a few words could be said in defense of long articles, especially in interdisciplinary pieces -- I'd think that generalist readers ought to be able to follow the line of reasoning in generalist journals. A law and economics article, for example, should for that reason be longer in the XYZ law review than in the Journal of Law and Economics. Isn't there some value to that? The legal academy so far is doing at least a passable job of creating cross-pollination in disciplines, with theories and techniques from economics and psychology and philosophy being used on the same questions and on each other, and that can only last so long as they can follow each other.

Of course, there's long articles, and then there's insanely long articles. I've seen authors who write a series of articles on the same general topic and repeat the same introductory material in each one. And bluebook rules are beyond stupid. And heaven help the fool who needs a parenthetical to Republic.

Posted by: Paul Gowder | Aug 17, 2005 1:58:13 PM

Thank you for the response to my comment.

A few words:

When you submit an article to a forum, you agree implicitly (or perhaps explicitly) to abide by its rules, and to not make things needlessly hard.

I support electronic submission, a requirement of a simple spell-check (or not so simple; the aforementioned foreign-language pieces would have been monstrous to run through Word's English version), and a strong suggestions that materials not otherwise available be provided if they are to be heavily relied on.

An editor is supposed to add value. We do not _write_, we _edit_. Editing includes putting our reputation on the line, as anonymous (eh nonymous?) individuals, as the journal (in my case, a relatively young one), and as a law school (in my case, a quite old one). If the author says that a citation supports a proposition, and it _does not in fact_, and we publish it, the author's reputation might suffer.

But more importantly to us, we will look like monkeys. What good is a properly formatted citation (which is key, ask any librarian; _where is this piece of evidence and how do I find it?_) if it points to an entire book, of which one line is relevant? Or if it points to the wrong case (it happened to me, more times than I want to count, through typos or sheer error)? Or if, as is pointed out, the citation is being gravely misused?

The bluebook's just a set of suggestions, to help standardize a field full of rugged individuals.

There's no need for us to check each citation.

But you're the folks who are trying to publish long (way too long, 100+ page) booklet-length articles in a student-edited forum.

If it's the wrong forum (material too abstruse, language too jargon-y, importance too high, relevance too obscure to us) then publish elsewhere, and be damned! as the saying goes.

Or as the abusive husband said in the 1950s, "If you don't like it, you can leave."

Posted by: Eh Nonymous | Aug 18, 2005 8:35:45 AM

So then is the answer peer reviewed journals? And if so, how would they work? I was on a journal in law school that, in addition to the student editorial board, had a board of professionals who read over and selected the articles, because it was a specialized field. I thought it worked very well. The professionals read for content and substantive contribution and the students did cite checking and the actual putting together of the journal. I'd like to see more of that. Sadly, in my exerience, faculty participation on journals is sorely lacking.

Posted by: AT | Aug 18, 2005 11:04:54 AM

How would they work? Probably the same way they work in every other part of academe! Reviewing and editing are part of the job of good academics and a prestige journal editorship brings prestige to the professor and to the school.

Posted by: mw | Aug 19, 2005 8:09:00 AM

I'm a joint degree student. I agree with many of the criticisms of student-edited law reviews. I'm confused, however, by the undercurrent of frustration (which, of course, I could be misinterpreting) directed at the students, as if the problem were our fault. Faculty in other disciplines start and run their own journals. Law students start and run journals. I see no reason why law professors can't do the same thing.

Posted by: Navigatrix | Sep 1, 2005 4:26:01 PM

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