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Monday, December 30, 2013

Wu and Posner on Review Articles in Law Journals

Tim Wu proposes that law journals should publish more "review" articles, that is, "papers which tried to objectively summarize the state of understanding surrounding a given topic, as opposed to presenting any new empirical findings, theories, observations, or insights."

Wu believes that this would make areas of the law easier to understand to readers of law journals.  He notes that the "review" portions of many articles that law journals publish tend to be short and directed toward the argument of the article, rather than a general survey of that area of law.

Eric Posner disagrees, noting that those review sections of articles fulfill the role of reviewing the law.  He argues that:

Scholars in other fields do not write articles in this way because they do not need to explain to editors–who are experienced scholars and also rely on referees who are experts on the topic–why their article is a contribution. Because law students screen law review articles, and law students do not know any legal scholarship, every author must start anew with yet another redundant survey that sets the stage for his contribution.
I would expect that Wu would disagree with Posner because the background sections of law articles tend to be directed towards the argument of each article, which is usually presented as a (possibly exaggerated) novel take on some area of law, rather than a neutral review.  An article that presents itself from the beginning as summarizing, in detail, some area of law might be more readily cited for that purpose than the review section of an article that is advocating a particular argument.

A stronger argument against review articles would be that lawyers, judges, and students who are trying to learn the law do not look to articles in law journals, but instead look to specialized treatises.  Review articles will likely be redundant, or denser than treatises that quickly summarize points of law in certain areas.

On the other hand, review articles may go into more depth in certain areas of law than a treatise can practically cover.  And with more articles becoming available on law journals' websites and on SSRN, the summaries of law in these articles may be easier (and cheaper) for practitioners to access.

From the journals' perspective, there is a practical reason to publish review articles: these articles are more likely to be cited by courts.  As I noted in this previous post, the Supreme Court does not cite law review articles that often.  When it does, the Court generally cites those articles (or those portions of articles) that review the law, rather than present novel arguments.

Posner's criticism seemed to be directed more toward student editors than Wu, but in making this criticism, Posner may be illustrating the usefulness of review articles.  It is a little harsh to say that law students "do not know any legal scholarship," but it is fair to say that students need a review of the law in order to quickly familiarize themselves with subject matter they may not have yet encountered in their studies.

The same is true of lawyers and judges who are handling cases in an area of law they have not practiced before, or have not practiced for a while.  And while scholarship that reviews the law may not end up being cited in a brief or a published opinion, that scholarship may still end up educating and informing lawyers and judges who are in unfamiliar territory.

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