Law Prof Ethics and Publications: a Rant

One of the many things that surprised me when I became a professor 12 years ago is the “law review game.” What happens is this: prof writes an article and sends it out to a ton of journals. Once he gets one acceptance, he then tries to “leverage it up” to “higher” journals. If he gets a higher one, then he tries again. It’s led to all sorts of things — expiring offers to publish, and so on, as well as writing that is intended to be published in journals “at the top,” which may or may not reflect what lawyers and judges want and need to read.

It’s all silly. Law students have no clue as to what is good writing, or important subjects, and so they go by labels (“ooh, a professor from harvard wrote this so it must be important” and the converse) or, imho, whether the article fits with what they’re being taught in law school (so, students at the more “theoretical” schools will think theory is what is important to “the profession,” whatever that means to them).

Of course, all scholarly work is now on line and so accessible by searching. So, placement in the sense of getting information out means absolutely nothing and, perhaps, the opposite if the “profession” includes most practicing lawyers, who read predominantly bar journals and practice-specific materials (the latter, such as “the X law school journal of law and technology” are generally not viewed by law profs as being as good as the law review of school X).

This leads to law professors trying to further their careers by openly admitting they write¬†for a small segment of students at “high end” law reviews. ¬†Usefulness to lawyers, judges, legislators… not much of a factor.

In my own view we ought to be writing for judges and lawyers, not each other or for second year law students at Harvard.

Sigh.

8 thoughts on “Law Prof Ethics and Publications: a Rant

  1. Good timing David – over the weekend I was explaining to a young person who is considering attending law school how, unlike articles in scientific journals, which are generally peer-reviewed, most law review articles are edited by law school students. And that much and possibly most “legal research” really isn’t research. And that many or even most law review articles are really written not for the sake of helping judges and lawyers but rather to try to show to the writer’s peers just how clever the writer is in being in devising some counter-intuitive theory to which the author will cling, even if reality eventually intrudes (think of, for example, the argument in a 1990’s law review article that gene patents would stifle further research, a canard that’s still around even though the numbers flat-out disprove the hypothesis). Like some of the other people posting here, I enjoy a good history paper, even when it masquerades as a law review article, but most law review literature, being written for the sake of being written rather than being read, isn’t worth the time.

  2. Admirable thoughts. Indeed, one would thin that ‘legal scholarship’ would actually do something difficult – like determining whether the patent trial right was established at the time of the 7th amendment. – you know, actual research at the library of congress. All too often now – its just policy arguments in the guise of research.

  3. The kinds of law review articles that I find most beneficial are the kind that do a tremendous amount of historical research. Otherwise, the article tends to be just a personal opinion of the author on a particular topic.

    1. Agreed.

      What drives me nuts, on the other hand, is a law review article where the original contribution is about 5 pages, but to make it long, they’ve shoved a 40 page background, as if the reader, say, of 101, wouldn’t understand what a patent is, etc.

    1. ha, nope. I never even do that. I place articles with people that ask me to write for them or just where I want to put them (the Georgetown Journal of Legal Ethics, AIPLAQJ, etc.)

      Just got cited by the 11th Circuit. My goal with law review writing is to help judges and lawyers, not talk to law professors about things that only they care about. Seems a waste of resources otherwise.

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