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June 7, 2010

"[M]ost law reviews are simply a waste of trees"

The title of this post (which is cross-posted at SL&P) comes from the last phrase of this amusing and effective commentary by Professor Gerald Uelmen in the June 2010 issue of the California Lawyer.  (Hat tip: C&C.) The piece is titled "The Wit, Wisdom, and Worthlessness of Law Reviews," and here are a few snippets:

During California's legal "golden era" of the Gibson and Traynor Courts in the 1950s and '60s, law reviews were cited with increasing frequency. In a classic study of the authorities cited in California Supreme Court opinions, Stanford law professor John H. Merryman counted 164 law review citations in the court's 1970 opinions, a "sharp increase" over previous years (Merryman, "Toward a Theory of Citations," 50 S. CAL. L. REV. 381 (1977)).

I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six.  This despite — or perhaps because of — the fact that law reviews have tripled in number since the 1970s.  The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley's alone publishes 14, while Stanford and UC Hastings each publish 9.  Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes.  But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.

As Adam Liptak of the New York Times observed a few years ago, "Articles in law reviews have certainly become more obscure in recent decades.  Many law professors seem to think they are under no obligation to say anything useful or to say anything well.  They take pride in the theoretical and in working in disciplines other than their own.  They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them."...

Of course, there are still a few law professors who would rather publish for practicing lawyers and judges than just for other professors. But given the way the academic game is played these days, they do so at their peril — particularly if they are seeking tenure. Still, law reviews are in no danger of disappearing anytime soon.  After all, big law firms and elitist judges continue to demand "law review experience" as a prerequisite for hiring.  The publication of student notes also provides a vehicle to enhance badly needed writing skills for barely literate law students.  But in terms of contributing to the profession, most law reviews are simply a waste of trees.

To put a little sentencing spin on this effective attack on modern law reviews, I wonder how many of the "20 ABA-accredited law schools in California [that] now publish a total of 82 law reviews" have produced articles discussing the dysfunctionality of California's state sentencing system or the profound legal issues that surround its long-lasting prison over-crowding problems.  I know of a few strong "local" pieces on California's three strikes law and other local topics, but not as many as are justified or needed for the legislators, courts and practitioners struggling daily with these issues.

As readers of this blog know, there are an array of interesting and important (and theoretically sophisticated and challenging) issues surrounding California's sentencing law and policy that merit extended and repeated coverage in law reviews.  And I am proud to note that one of the law reviews that I edit, the Federal Sentencing Reporter, has this new issue on "California's Corrections Crisis."  I am thus glad that Professor Uelmen says only that "most" not "all" law reviews are a waste of trees.  (And, of course, no trees were killed or even hurt in the production of this blog post.)

Posted by DAB

June 7, 2010 in Scholarship -- traditional | Permalink

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Comments

In fairness to law reviews:

1) 1 in 100 ideas are any good. 1 in 100 good ideas are helpful. 1 in 100 helpful, good ideas make any difference.

2) The unstated aim is not to assist practitioners. It is to enhance the knowledge of the faculty. They had to review the subject matter. Learned of new cases, new exceptions, and new exceptions to the exceptions. One has to buy a practioner handbook to get familiar with the management of a particular case.

3) Many rent seeking expansions of criminal syndicate business were generated in law reviews, for example, unconscionability, sexual harassment, class actions. You get a few of those, and they generate $billions in fees for totally bogus, made up pretexts for new business for the criminal syndicate.

4) Even if not cited, they may influence real world decisions, especially if they support the judge bias toward more procedure and lawyer jobs.

5) They are published on the internet and free for the public to read.

Areas of weakness:

1) Student editing. That implies they are a joke, something of no importance, that lay people can edit.

2) They waste the time of the good student editors. The latter should be writing articles under supervision to learn how, not checking citations.

3) They all go in one direction. Toward the lawyer rent. They are left wing Mein Kampfs for the plaintiff bar in torts, and for the defense bar in criminal law. They advocate the all out plunder of the public interest.

4) They cover the supernatural realm. They do not measure nor cover facts in nature. They are quasi-religious, sermony, anti-scientific garbage.

5) They lie by omission and have no credibility. Their publication on the net should allow rebuttal by the reader. They do not.

Posted by: Supremacy Claus | Jun 13, 2010 10:02:28 AM

Canadian law schools may be worse, since that is a Commie country.

http://amlawdaily.typepad.com/amlawdaily/2010/06/canadianlawschools.html

Posted by: Supremacy Claus | Jun 13, 2010 4:41:13 PM

Here is a discussion of a famous law review article that ended up to be a catastrophe for the nation, and it is just made up law by a horrible cult criminal.

http://volokh.com/2010/06/13/louis-brandeis-wuss-or-snob/

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Posted by: labeling machine | Aug 6, 2010 10:26:15 PM

Law Professors are evaluated on the following basis: (1) student evaluations of teaching (anonymous hearsay from folks who have not yet practiced) and (2) the perceived "rank" of the student journals they publish in (which school's students thought the article was worth publishing - again, did some group of students, who have not yet practiced, think the article was important, neat, or whatever - often this will be driven by the perceived "rank" of the professor's school). In short, there is no real substance to evaluations. What's more, evaluators can and do make student evaluations of teaching mean whatever they want them to mean. Would true peer review be better? Not really, because if one's peers are other professors at the same institution (or even other institutions), most evaluations will be based on politics (law school factions) or Politics (Left v. Right/Liberal v. Conservative/ etc...). There is also the 'kiss ass' factor. It's all rather silly, isn't it.

Posted by: Rick Underwood | Aug 25, 2010 9:09:44 AM

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