Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”I have long been of the opinion that a great deal of criticism of academic legal writing consists of the recycling of the same tired arguments every few years. I try not to be dismissive of this criticism -- but it just seems that there are some instances of classic criticism and dozens of dreary echoes.
In his essay, Sunstein takes on the classics. I have expressed my appreciation (or at least, good-humored enjoyment) of Fred Roddell's, Goodbye to Law Reviews in previous posts. But Sunstein has none of it -- arguing that Roddell's approach is "smug" and filled with contempt. And in responding to Roddell's criticism of law reviews, Sunstein makes one of his central points:
Rodell seemed to hold up general interest magazines as the standard, but rigor is not exactly their stock-in-trade. It should be unnecessary to say that the arguments that can be found there are often attention-grabbing, glib, result-oriented, and careless (and a little ridiculous). As for people, so too for genres: Their vices are a product of their virtues. What Rodell deplored as unnecessary formality, and a kind of incomprehensibility, is the dark side of the effort to avoid superficiality and glibness. Notably, some contemporary law professors seem strongly, drawn to more popular outlets, producing blog posts or online columns, where significant numbers of readers might be found, and where publication is essentially immediate. But a great deal is lost by writing of this kind, which tends not to be rigorous, and which does not really develop an argument or add to the stock of human knowledge.I find this argument interesting, and I think that it is worth considering, especially in light of trends towards the media of blogs and Twitter in producing legal commentary and arguments. Published articles, at least, have no shortage of references for the points they make, and it may be harder to get unsupported assertions around journal editors.
But I don't think that Sunstein's argument will have much of an impact on the critics of law journals. True, an article in a law journal may be more rigorous than a blog post or an article in The Atlantic. But law journals are published and edited by law students, and critics argue that these articles are less-rigorous than that which is typically published in other fields. Sunstein would likely note that those professors who eschew law journals for popular articles also tend to shy away from more rigorously-edited publications. But the criticism still remains.
I am left with two main questions after reading Sunstein's essay. I would like to know how he would respond to the criticism that law reviews are not rigorous enough compared to other academic publications. And in a different vein, I would like to know what Sunstein thinks about online supplements to law reviews, which produce shorter, less-footnoted, and more quickly published pieces than printed law reviews. Are these online supplements akin to the general interest articles that lack rigor? Are they simply shorter versions of the over-footnoted, dry, and difficult law review articles? Or are they a possible middle ground where both rigor and readability can be achieved?