Monday, April 09, 2018

The Future of Lengthy Law Review Scholarship

By Eric Segall

Last week I had the pleasure of attending a conference on legal scholarship at Loyola University of Chicago School of Law. There were many fine speakers and interesting topics. Kudos to Professor Darren Bush, Lawprofblawg, and the students on the Loyola Law Review for putting on such an important symposium. I want to focus in this blog post on one aspect of the discussion.

I argued that very few scholars, or for that matter anyone except hiring and tenure committees, read 50 to 80  page articles, usually with over 300 footnotes. As an example, I pointed to a forthcoming Harvard Law Review 80-page article on the original meaning of the word "guarantee" in the Guarantee Clause of the Constitution. The article is excellent, and I don't mean to pick on it, but I seriously wonder how many people will read it from cover to cover. And, this is a timely piece in the most prestigious law review. 50-page articles on esoteric topics in lower ranked journals the subjects of which rarely assist judges, lawyers, or the general public are actually the norm. Yet, the most important currency in legal education, besides a degree from a top ten school or a Supreme Court clerkship, is the lengthy, footnote heavy, and often wildly theoretical law review article. There are thousands of such articles published every year, most of which die in a vacuum.

I received substantial (civil) feedback for these comments from Professors Orly Lobel, Anthony Michael Kreis, and Carissa Byrne Hessick. These professors suggested that I undervalued the degree of deep thought and extensive research that goes into good conventional law review articles. They also thought that such articles are much more commonly read then I suggested. And they argued that shorter on-line pieces, blog posts, and op-eds are useful to explain the main threads of more in-depth scholarship but certainly can't take the place of such scholarship.

I responded that even if all those things are true about conventional law review articles, my point was mostly that hiring and tenure committees need to adjust their incentives for hiring and promotion to value non-law review scholarship more heavily. Because few pieces from law professors not teaching at elite schools make their way into law reviews at those schools, and there is little correlation between quality and placement, publishing in highly selective journals is vastly overrated in the hiring and promotion process. Additionally, the most effective avenue for most law professors to gain national attention is no longer through long law review articles but via other forms of public engagement. The pressure to speak relatively quickly about important current legal events to broad audiences is just going to get stronger as time goes on. How well law professors handle that pressure is quite important. I didn't suggest there is no place for 50-page articles on obscure subjects, just that such pieces are overrated compared to other contributions. 

On Monday, Professor Hessick posted a piece on Prawfsblawg (the mere presence of which somewhat supports my point) continuing the discussion. To be fair to it, here's a lengthy quote:
I strongly disagree [with Professor Segall].  There are already many (perhaps too many) incentives for law professors to write non-scholarly pieces.  Our reputations and egos benefit from publishing an op ed in a national newspaper, appearing on television, and other activities that are aimed at the general public.  We feel good about those publications, other law professors appear to covet them, and our schools’ communications departments are delighted every time we engage in such behavior.  So I don’t think that we need to change our promotion and tenure standards to incentivize this behavior; the incentives are already quite strong. 
More importantly, a Slate article or an op ed in the Washington Post is no substitute for the time and effort required to write a law review article.  Writing a law review article forces you to conduct significant research, think deeply about a problem, and seriously engage with arguments on the other side.  In other words, writing a law review article makes you an expert about a particular issue. ... This country already has a lot of very good legal pundits.  What law professors can add to the public discussion is our expertise.  We should not change our incentives structure so that it encourages more law professor punditry—especially not if that punditry comes at the expense of the development of expertise.
In Professor Hessick's words, I strongly disagree. Many young law professors are expected to write 3-5 50-60 page articles in 5 or 6 years to get tenure. At some schools, they are also expected to be excellent teachers and, especially for women and people of color, serve on numerous committees.  The incentives for these younger professors to engage in other time -onsuming activities such as blog posts, op-eds, and shorter on-line articles are small.
I also don't think that calling these kinds of activities "punditry" assists in our debate. Some blog posts and op-eds are punditry while others make valuable contributions to our legal debates. Some law review articles are excellent and important while some are terrible and irrelevant to anyone except hiring and promotion committees. Professors Marty Lederman, Ilya Somin and Jonathan Adler, to name just three of many professors, have published extremely scholarly and important blog posts over the last few years on many timely aspects of the Trump regime. These pieces should count as scholarship.
As to length, I liked this comment made by someone on Prawfsblawg responding to our debate: "Law review articles easily could be hard-capped at 40 pages and literally nothing would be lost except some citations, but citing ten sources for one point is excessive and nobody's reading them all anyway. In addition, law review articles could lose the discursive footnote fetish and use footnotes for simply...citations (gasp) rather than several mini-articles."
Another problem with overvaluing traditional law review articles, as I said above, is that where those pieces are placed inevitably seeps into how the articles are valued. It is of course absurd to put in the hands of second year students the ability to so substantially affect the careers of the people whose job it is to teach them the law. The inevitable result of such a system is that students often select their articles by resume, not substance. Professor Kreis' call at the conference for all blind review would help but wouldn't solve the other serious issue of the students' inability to know which articles truly make new contributions and which just say something old wrapped in different language. In other words, the difference between substance and punditry.
One compromise would be for hiring and promotion committees to value 3000-10,000 word essays and articles more than than they currently do. I could list hundreds of such pieces written in the last ten years in constitutional law that made valuable scholarly contributions. These on-line pieces are read by more people, are more timely, and require serious thought if they are going to be done well.
There is of course a place for the lengthy, specialized, heavily footnoted law review article. But such scholarship should not be the only kind of valuable scholarly contributions deemed worthy by hiring and promotion committees.  It is well past time to adjust our priorities and incentives to recognize the importance of non-traditional scholarly activities.


Michael C. Dorf said...

I am tempted to write that "I strongly disagree and am working on a 50-page response that will appear in print in 18 months," but the truth is I only modestly disagree. My view about writing about law is much like a point sometimes attributed to Duke Ellington about music: There are two kinds -- good and bad.

Joe said...

Marty Lederman's posts at Balkanization are regularly miniature law review articles.

Asher Steinberg said...

If anything, I find a lot of law review articles too short; at least, their prescriptive sections are often fairly compressed and underbaked and seem like they would benefit from more space. Some articles begin with too much descriptive spadework, but sometimes that's necessary. That said, I agree that shorter work of equal quality should be rewarded as much as longer work and feel sorry for my friends going into academia who send me draft papers they felt compelled to pad with stuff they obviously aren't interested in talking about, just because their real idea's natural length is twenty pages and hiring committees won't value work of that length.

As for law blogging, there is some serious law blogging out there, but I agree with Hessick to the extent that I think there are too many incentives already to write at places like Slate or Take Care. I think there are probably fewer incentives to blog at places like Prawfs or Balkinization, where the blogging tends to be more thoughtful. Some law blogging, a small fraction of it, is quite scholarly and good and should perhaps have some value assigned to it in academic hiring; some law blogging is fairly technical, but is obviously written mostly to influence a court or courts hearing some pending case. I generally don't see that that sort of ref-working, especially when (as it often does) it dramatically overstates the author's confidence of his views of the merits for persuasive effect, or is part of some coordinated campaign of advocacy blogging, should help academics get jobs, even if it contains some deft lawyering. Perhaps it can help shed light on a candidate's competence, but not much more so than briefs they wrote in private practice. And then there's writing for non-lawyers, or whatever kinds of lawyers and judges one condescends to enough to think they take op-eds or "jurisprudence essays" in Slate seriously, which only seems germane to seeking a job in legal journalism.

Joe said...

Maybe, someone who posts at Take Care will visit here and comment.

Zara Friedman said...

Once upon a time, I was the executive articles editor of a law review. I'm not going to claim that the law review model is ideal, but I didn't select articles based upon the resume of the author rather than the substance of the piece. I don't understand the incentive to choose pieces that way, so I wouldn't assume other students do it either.
I'm not otherwise arguing with anything here. It's just that I was a staffer when Judge Posner wrote "Against the Law Reviews," and he was a major contributor to our symposium when I was on the executive committee, which was awkward. All these years later, I still try to defend the students.

Shag from Brookline said...

Posting a draft legal article via SSRN is much, much quicker and timely that the law review process. Such posts at SSRN are described in various ways, including "draft, comments welcome but don't quote without permission"; "work in progress, comments welcome." Several redrafts might be posted over time. Not all end up in law reviews. The timeliness of an SSRN posting may be more meaningful than the 18 months suggested in Mike's comment, especially if the author has been around the legal block frequently via law review articles. How beneficial is SSRN to the legal academy and practicing attorneys? (I have enjoyed accessing articles on SSRN. But I've got a lot more reading time in virtual retirement, despite eyesight issues.)

I was graduated from law school in 1954 and got into the Internet in semi-retirement back in late 1988, with a lot of focus since on legal blogs. I wonder how a legal academic pre-Internet spent his day as compared to post-internet. Some posters here somewhat straddle those time periods. What about old-time legal academics, such as Larry Tribe? Is it a longer day today? Is it more rewarding (financially and otherwise) today?

Also, Asher mentions adversarial legal articles. Are they problematic, especially if the author does not so disclose? It is often quite obvious on a legal blog that it may be liberal or conservative. But adversarial seems beyond that.