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Law reviews: Do the inmates run the asylum?
STANFORD -- In the nation's law schools, students decide who among their professors will publish or perish. The students who run the nation's top 20 law reviews gathered at Stanford Law School on Feb. 25-26 to discuss this unusual state of affairs with law professors, lawyers and judges.
"Never before in more than two centuries of jurisprudence has so much 'unreviewable discretion' been gathered together," Stanford law Professor Joseph Grundfest remarked as he surveyed the audience of mostly student editors gathered to listen to a panel discussion of the topic "Do the inmates run the asylum?" The title was inspired by the fact that, unlike other academic graduate or professional programs, law turns the decision on what to publish over to its least experienced participants - its students.
The conference was organized by the Stanford Law Review, whose student members decided it was time to bring grumblers - readers, authors, editors - face to face to discuss their differing views on the purpose and practices of these academic journals, publications that survive by selling subscriptions to the nation's law libraries and law firms.
Leo Martinez, academic dean of Hastings School of Law, confessed to "having this vague sense of paranoia" about having to critique the work of editors.
Law review space is in high demand by faculty and would-be faculty authors, and a large part of the task of running a law review is figuring out what to publish, according to law review editors who attended. The Stanford Law Review, for instance, receives 5,000 to 6,000 manuscripts annually, from which it must choose 15 to 20 articles to publish, according to current president Phoebe Yang. Tenure decisions, she said, can hang on whether or not a junior faculty member gets published in one of the prestigious reviews, and there is competition among the reviews to publish the most highly regarded people.
Student-written articles - generally called "notes" - are also the means by which students establish their reputations. Publishing a note or editing a review gives a student more chance to land the most prestigious clerkships and junior positions in the best law firms. Some law reviews, such as Harvard's, permit only their law review members to write for the review, while others, such as Stanford's, take submissions from all law students and try to broaden access with rules that require law review members to abstain from voting on publishing the work of student authors whom they know. Much of the conference was devoted to the discussion of day-to-day operations of journals, but the opening session focused on the larger subject of whether students should be in charge of them.
Among the cons cited:
Students do not always select the best articles on a given subject. They pay too much attention to what the faculty - who give them grades - think or to the prominence of an author's institution. They allow errors, which they are reluctant to correct; they sometimes over-edit. And too many of the articles they publish are long, boring or irrelevant to lawyers' and judges' concerns. Some also accuse the journals of having become more literary, or journals of opinion rather than of legal scholarship.
Among the pros cited:
Students are more tuned into the real world of law than faculty because they work as summer interns in law firms and are seeking jobs. They meet deadlines better than do faculty. They spend long unpaid hours on the tedious task of checking citations for accuracy. Their judgment reflects the latest thinking of top law school faculty, but students may be less likely to let friendships and political orientation influence who gets published than are the faculty who control journal publication in other disciplines.
In the end, the four law professors on the panel agreed that having faculty run the journals was a worse solution than having students run them. Some suggested, however, that faculty should take more responsibility for guiding and training the students, while others suggested the students should do more to reach out to their readership on the bench and the bar to get ideas for a broader range of article subjects.
On the matter of deadlines, Susan Stayn, editor-in-chief of the Columbia Law Review, questioned whether faculty could produce eight issues a year, as she and her colleagues at Columbia do. "Some of us are still waiting for our grades from last semester." The audience responded with knowing laughter.
Jessica Karmer, editor-in-chief of the California Law Review of Boalt Hall, said that faculty editors are more likely to play favorites. "I think one of the most valuable things we bring as students is that our points of view are less settled and more flexible, and the decision to publish - at least at our review - is made by five people reaching consensus."
The situation, she said, probably leads to "more progressive politics" in the reviews and "more freedom to advance the law more quickly."
"Law reviews are most of all a process of editing," said David Friedman, president-elect of the Harvard Law Review. "I can't imagine professors doing that."
Law reviews have changed substantially over the past decade, some panelists said, so that judges and lawyers find them less practical for their concerns. Whereas once the journals were heavily influenced by the kind of law practiced at elite firms and before appeals courts, now they pay most attention to professors' theories of the role of law in society.
"It used to be that law professors and students were robe sniffers," said James Lindgren, visiting professor at the University of Texas Law School, and one of the most outspoken faculty critics of law reviews. "They watched everything that was going on in court and followed it." Now, he said, the name schools and their law reviews "are looking at law as a university discipline to be understood. In other words, you are often publishing articles about law, rather than law articles themselves."
But he added that he did not object to these theoretical pieces because theoretical pieces, such as those of Catharine MacKinnon on pornography, "change the way we understand the world." His own concern, he said, is with over-editing, favoritism and errors, which, he said, could be corrected if faculty were more actively involved in helping to train and work with the student editors.
Indeed, several student editors said they seek out faculty members' advice but find faculty reluctant to read draft articles. And while Lindgren complained that some editors feel obligated to change every sentence in an article, some of the editors complained that faculty submit unfinished articles, expecting the student editors to finish the research and structural work for them.
James Brosnahan, a partner in Morrison & Foerster and a practicing trial lawyer, agreed that law reviews have become more theoretical, but he urged the editors not to listen to those who say theory is not interesting to lawyers and judges in the field. "The concept that over in academe, under palm trees and sipping caffè lattes, is a world of thought, and out beyond are grinding practitioners with old briefcases who care nothing for ideas - that's a destructive idea. It's doing enormous damage to the practice of law and the way the public views lawyers in the United States."
Student editor Karmer added that she did not worry if there is a gap between theory in journals and practice in the field. "Eventually, hopefully, the theories that we are publishing will become useful, and if not today, that's OK."
Nevertheless, Appeals Court Justice John T. Noonan Jr. of the Ninth Circuit admitted he rarely read a law review article because he is too busy reading lawyers' briefs and the articles they cite. He reminded the students that their predecessors, once out of school, rarely cite law review articles in making their arguments.
In some cases, he said, law schools and their journals are "10 years out of date." For example, he said, sentencing has become "the largest subject of appeal." Judges face "a very large rule book and several thousand cases" of precedent, but "I've never seen a law review citation as to what sentences should be."
Brosnahan agreed that the law reviews may not be as well read in the field as they once were. "There is a lot of competition out there for reading time - what people are willing to read - and I think you are feeling it, because I sense from my discussions that law reviews are not high on the list."
Grundfest also noted that specialty journals are providing new competition. A group of Stanford students, for example, started a new journal this year called the Stanford Journal of Law, Business and Finance to deal with issues of financial derivatives and other complex business transactions that they feel are not well covered by other types of academic journals.
Law reviews would be more interesting to practicing lawyers if they ran more articles on criminal and civil procedure, suggested Stanford law Professor Miguel Méndez, who was previously a practicing lawyer. Méndez said he did not want to see the scholarly journals become "trial manuals," but said that he felt the students are too overly influenced by their academically oriented professors. He urged them to "go beyond the kind of imagination that has been given to you by your professors and imagine what it is that some of the practicing bar and bench would like to read and find useful."
"I don't think we'll find a better solution if we turn [the law reviews] over to faculty," said Hasting's Martinez. "The fact that you crank out eight journals a year is an astounding feat."
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