The Relevance and Readership of Student-Edited Law Reviews: Another Response to Liptak

Like Will Baude below, I was underwhelmed by Adam Liptak’s essay in the New York Times on the longstanding criticisms of law reviews. To add a few more problems with Liptak’s essay:

(1) Liptak suggests that the readership of law reviews has dropped and will continue to drop. I don’t see this. Sure, the circulation of printed versions of law journals has plummeted. But who reads paper issues of law reviews anymore? These days people read law review articles on SSRN, or Westlaw, or on .pdfs from law review websites. I would guess that the readership of law reviews is vastly greater today, now that you can get most scholarship online for free, than it was on the old days when you had to go to a law library to find an article.

(2) Liptak suggests that law reviews have less influence today than they did in the 1970s and 1980s, citing a study that about 50% of Supreme Court decisions in the 1970s and 1980s cited law review articles while only 37% of decisions since 2000 do so. But that difference is likely explained by the growing rift between the ideology of Supreme Court Justices and legal academics, not anything about the law reviews. Back in the 1970s, the Justices and the legal academics were more or less in sync. Justice Marshall could cite Larry Tribe for support, and it was all copacetic. That is no longer true. Today’s conservative Justices view legal academics as hopelessly out-of-touch with the Court. The mainstream of the academics and the mainstream of the Justices don’t share much space in common, at least compared to an earlier generation. The Justices are less likely to cite articles because of the content their authors provide, not because of student editors.

(3) It’s unfortunate that Liptak never directly addresses the critical question of audience. In my view, law reviews are easy to criticize because they are a strange hybrid. They purport to serve two audiences at once — both legal academics and the bench and bar. Their hybrid status satisfies no one. If you think law reviews should be written for judges and practicing lawyers, then they are terrible because they generally are not relevant to the practice of law or the kinds of issues that judges regularly encounter. On the other hand, if you think law reviews should be written for academics, then law reviews are terrible because law student editors are not subject matter experts and can’t adequately spot top academic work. Both of these critiques are entirely fair within their assumptions. If you pick your audience, you have your critique. But they are also in tension with each other. For example, those who criticize law reviews for their lack of real-world impact may want to think twice about the role of students in the process. As between student editors and faculty editors, student editors are probably more interested in real-world impact and accessible writing than are elite academics. As a whole, the knowledge that student editors will be selecting articles probably pressures legal academics to write scholarship that is more easily understood by lawyers and that has more real-world relevance and impact than they would if the journals were all edited by professors. This doesn’t mean that the status quo is the best alternative, of course. But it does mean that you need to start by defining your audience, and then consider what works best for the audience(s) you have in mind.