A Sur-Reply to the Replies to My Response to Adam Liptak’s NYT Article on Law Reviews

Yes, that title is supposed to be a joke.

Anyway, a few additional thoughts in response to folks who commented on my initial post defending law reviews from the students’ perspective.

Even with Student Editors, There Should Still Be Peer Review!

Lots of folks have pointed out that peer review would be a useful supplement to student editors. I didn’t mention this in the original post, because others had already discussed it elsewhere, but peer review does happen in legal scholarship. There are, of course, plenty of peer-reviewed journals. But even in the context of student-edited journals, Matt Bodie and Will Baude note that much of legal scholarship’s peer-reviewing happens after publication, when scholars, courts, and practitioners can evaluate a piece, ignore it, cite it, engage with it, criticize it, etc. What’s the problem with that?

Also, there is actually a good amount of pre-publication peer review. People complain about star footnotes—that little footnote after an author’s name thanking all the famous professors and friends who provided comments and edits on previous drafts. Sure, some of that might be an attempt at status-by-affiliation. But it’s also peer review! I’ve yet to see a star footnote that reads: “So, uh… nobody else in the field has read this yet. I just sort of read a bunch of cases and articles and these are my thoughts. I hope they’re not terribly obvious or wrong-headed.”

Blogs Are Better than Law Reviews!

Sure! Blogs are great! I read all sorts of legal blogs. But here’s the thing: You know all that influential blogging that was going on regarding the Commerce Clause and the ACA litigation? Those folks blogging about that over at the Volokh Conspiracy, they were not just churning out posts fully formed, like Athena from Zeus’s head. Those ideas were based on theories and ideas that had been worked out in law review articles.

There Is a Huge Disconnect Between Academics and Practitioners

Agreed. I don’t see why this is a problem. Orin Kerr notes that law reviews are a “strange hybrid” because they serve both legal academics and the bench/bar. I would add student editors to the mix as well. But in any event, it should be no surprise that the questions litigators want answered—How can I win this motion!?—are not the same questions that academics are interested in answering. That some people wind up in academia and others in practice is not the result of random sorting. People tackle the problems that interest them.

Moreover, the legal academy’s two main tasks, as I see it, are (1) educating students to prepare them for the practice of law, and (2) furthering or challenging the general understanding/theory of the law through scholarship. Not on that list: serving as the research assistant for a litigation partner at Skadden.

Which is not to say that the academy has no responsibility to the bar. There are lots of “useful” things professors publish in addition to law review articles. For example, David K. DeWolf of Gonzaga puts together the essential volume on torts in Washington Practice Series. And treatises like LaFave’s Search and Seizure or Wright and Miller’s Federal Practice and Procedure are extremely practical. Professors write those things. But not everything is going to be for practitioners.

And plenty of law review articles are useful to courts and practitioners. As Jack Chin points out, even noted (and Liptak-quoted) law-review critic Judge Dennis Jacobs (for whom I clerked) has cited to numerous law review articles in his opinions. So there’s plenty of “useful” and practice-friendly stuff out there. Practitioners, of course, want more; but they are hardly a disinterested party and, like Professor Kerr says, practitioners are not the only audience with a say in the matter.


One thought on “A Sur-Reply to the Replies to My Response to Adam Liptak’s NYT Article on Law Reviews

  1. Pingback: Law Reviews, Peer Review, and Cheese Knives | Ziff Blog

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