When I began as an articles editor, I had a few ideas about what made good legal scholarship (largely as a result of being involved in the publication process on the author-side), but for the most part, figuring out a solid process for determining what articles were worthy of publication was a mystery to me. As I read more and more articles, and learned more about commentators' thoughts on legal scholarship, my approach to legal scholarship became more informed and refined.
In this post, I hope to share some of what I learned while I was an articles editor. I will begin by noting what commentators dislike about legal scholarship. Articles editors may want to avoid publishing papers that embody too many negative stereotypes of legal scholarship - though some of the criticism itself may be misguided. I will also share other general advice on reading scholarship with an eye for slating, and common red flags that authors should look out for. These lists are not exhaustive, but they make up the advice that I think is most important.
Criticism of Legal Scholarship
As an articles editor, get ready to be the target of a lot of abuse from those you publish, and from those who read (or avoid reading) what you publish. Here are some of the more common attacks against articles editors:
- Articles Editors have no idea what they're doing
Most criticism of articles editors flows from a general distaste in the idea of student editors of scholarly journals. Adam Liptak characterizes student editors as amateurs with little experience in the law. And James Lindgren labels student editors as "incompetents" in his essay, An Author's Manifesto (61 U. Chi. L.Rev. 527). Articles editors are like other law students -- they have only had two (or fewer) years of legal education, often consisting of the first year curriculum and other courses that sound "cool" like courses in constitutional law and intellectual property. Moreover, a lot of legal scholarship intersects with other specialized disciplines, or employs statistical methods, which students do not have the expertise to properly evaluate.
- Legal scholarship is arcane and impractical
From Chief Justice John Roberts, "Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar." Richard Posner labels a lot of published scholarship as "mediocre, evanescent, and faddish." There are certain topics, (constitutional law being one of the most notable) that are grossly over-represented in legal scholarship.
- Law journals disproportionately publish scholarship from professors at their school
There has been a longstanding, anecdote-based concern that law journals publish work from professors at the journal's institution more than they publish authors from other schools. Recently, this concern has been taken beyond the anecdotal, with this forthcoming article by Albert Yoon surveying thousands of articles from hundreds of journals, and concluding that students tend to publish authors from their own school more frequently, and that these articles tend to be those professors' less-cited works.
- Authors only care about big-name professors
Critics of law reviews often argue that articles editors place a disproportionate emphasis on the identities of articles. Because students are typically not experts in the areas of law they are reviewing, they may defer to non-merits methods for evaluating the legitimacy of an article -- and the prestige of the author or the author's educational institution is an easy-to-identify alternative.
- Articles are too long
Professor Bainbridge criticizes the length of law reviews, noting that even those law reviews with stated word limits often end up breaching those limits. As I point out here, sometimes there is nothing that can be done about this problem. But many articles that professors are now submitting to law reviews tend to hover around 30,000 words, and a substantial number of articles skyrocket past this benchmark.
- Articles editors are gullible
Paul Horwitz points out that it is common practice for professors to exaggerate the novelty of their articles' subject matter when trying to sell their papers to law reviews. Authors know that novelty is something that editors look for, and they try to make their papers sound as groundbreaking as possible -- even if this stretches the truth. This is not particularly problematic for the authors, since exaggerated novelty claims can be tempered in the editing process.
Finding the Best Articles
Even though it is fashionable to criticize articles editors, students remain in control of most legal scholarship, and this will probably not change anytime soon. Here are some pointers and strategies that articles editors can follow to locate the best articles, and to avoid some of the criticism.
- Be mindful of practicality and citation potential
There are a lot of articles out there, but many of them are never cited at all, and only a few of them will ever be cited by courts. Articles editors should consider publishing pieces that are more likely to have a practical impact and/or be cited by courts or in further scholarship. So what makes an article more likely to be cited?
- Reviews of Law
Tim Wu suggests that law reviews publish more "review" articles that objectively present the state of a certain area of law. These are the articles that courts are more likely to cite and rely upon. I am not sure whether this advice is always a good idea, since most law review articles already summarize the law before making arguments, and since treatises may already fulfill the role of summarizing the law. But for those journals that do not receive as many submissions, being more receptive to review articles may be a good way to pick up citations.
- Topic Selection
Darius Robinson and Bradley Charles write about the types of secondary sources that the Supreme Court is most likely to cite. The Court tended to cite more articles in the fields of evidence, patent, copyright, and the Sixth Amendment.
Articles that are limited to a single state or that are limited to criticizing the ideas of a particular scholar will have a narrower impact than broader articles. And the range of articles or cases that will cite these articles is narrower as well.
Articles with grand proposals for reform may be interesting to read, but they will probably not make much of a difference to courts, who are often bound by precedent, and who must apply laws that tend to be slow to change.
While practicality is an important concern for legal scholarship, articles editors should still be mindful of provocative articles, and understand that some scholarship is important to publish, even if it is not likely to be taken up by courts or legislatures. And even if a court will not cite the article, that certainly does not eliminate the possibility that another article will cite the article.
- Avoid overly long articles
While I do not agree with all of the criticism of legal scholarship, I am of the opinion that many articles are extremely lengthy and that articles editors should enact policies or work to select and review articles that are not too long. Most journals have word limit policies, but these are often cast by the wayside, and most authors seem to realize this. Articles editors should be mindful of space constraints, and should note that shorter articles tend to communicate the author's argument more clearly than those that are much longer.
- Seek out work that is underscholared
Articles editors should make an effort to publish articles in areas of law that are not typically covered by legal scholarship. While subjects like constitutional law and copyright might seem interesting, these are areas of law that have been covered extensively in the legal literature. Articles on tax law, bankruptcy, and insurance law, on the other hand, are more likely to make novel points and be cited down the road because there are not many articles on these subjects.
- Pay attention to the content of footnotes
A big part of effective article selection is selecting work that is novel. Sometimes, authors may claim that their paper is novel, even though this is an exaggeration. And sometimes, and author's paper may be preempted outright by an earlier paper. In these cases, it is important to pay attention to the footnotes, especially those footnotes that follow the author's thesis, or sentences that are similar to the thesis. As Jeffrey Lipshaw notes, a thesis sentence is the author's original contribution to the literature, and "doesn't need a footnote." (16 Green Bag 2d 225). If the author's thesis sentence does have a footnote, that should raise a red flag. The author may realize that his or her article has been preempted, but the temptation to cite that preempting work is often too much to resist.
- And pay attention to the number of footnotes
Make sure that the author's claims are adequately supported by authority. And also watch out for articles that have an outrageous number of footnotes. The articles department is only one part of the overall law review, and articles editors should realize that managing editors have feelings too.
- Publish articles that will last
If an article is written about a law that is likely to change soon, or about an issue that is going before the Supreme Court in the following term, the article (or a significant portion of it) may end up becoming irrelevant as a result of a change in the legal landscape. Instead, publish articles that identify issues that may take some time to resolve, or articles that focus on a larger issue, of which an upcoming case is only a part.
Being an articles editor is difficult, time-consuming, and incredibly rewarding. I found the experience to be engaging and educational, and I wish the best of luck to those who are beginning as new articles editors.
Richard A. Posner, Law Reviews, 46 Washburn L. Rev. 155 (2006)
Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 40 (1936) (If you can only read one thing on this list, read this)
Albert Yoon, Editorial Bias in Legal Academia, J. Legal Analysis (Forthcoming)
Christopher Zorn, Five Reasons Law Reviews are Terrible