Archive | Law Reviews

New Paper: “Kiobel Surprise: Unexpected by Scholars But Consistent with International Trends”

My article on Kiobel v. Royal Dutch Petroleum is up on SSRN. It is forthcoming in the Notre Dame Law Review‘s Federal Courts Issue.

Here is the abstract; comments on the article are welcome:

The unanimous ruling in Kiobel v. Royal Dutch Petroleum blind-sided the legal academy. The case involved one of the most contentious and dynamic aspects of U.S. foreign relations law, the Alien Tort Statute (ATS). Yet the Court surprised observers by deciding the case on grounds almost entirely ignored by the academy – the presumption against extraterritoriality.

Amazingly, despite an extensive academic literature on the ATS, the winning issue in Kiobel had never been examined in a law review until a 2003 student note. No court ruled on it until 2010. Indeed, the issue had not even been part of the litigation in Kiobel until the Court sua sponte raised it during oral argument. Finally, the Court’s unanimous endorsement of an extraterritoriality limitation came as yet another surprise to most observers, who predicted a split along more ideological lines.

The story of the extraterritoriality issue in ATS litigation is a case study in the path dependence of legal doctrine and of agenda-setting by the Supreme Court and the Justice Department. This Article examines the intellectual history of extraterritoriality arguments in ATS litigation, while placing Kiobel in a broader context of international trends in universal jurisdiction. The Article also considers possible reasons for this academic oversight. While normative approval of ATS litigation no doubted contributed to the neglect of the issue in the exciting early years of ATS litigation, its longstanding omission must also be attributed to broader intellectual factors. It demonstrates the power of sub silentio decisions: while courts had never dealt with presumption in ATS cases, most observers assumed the issue to have been

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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 [...]

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In Defense of Law Reviews

Adam Liptak has a piece in the New York Times recounting many claims that law review articles are on average very bad, and useless to the bench and bar:

Law reviews are such a target-rich environment for ridicule that it is barely sporting to make fun of them.

About 43 percent of law review articles have never been cited in another article or in a judicial decision.

Law reviews are not really meant to be read. They mostly exist as a way for law schools to evaluate law professors for promotion and tenure, based partly on what they have to say and partly on their success in placing articles in prestigious law reviews.

The judge, lawyer or ordinary reader looking for accessible and timely accounts or critiques of legal developments is much better off turning to the many excellent law blogs.

The general debate on how to improve law reviews is an old one, and there is little prospect of change. Law reviews will continue to publish long, obscure and dated articles, and their readership and influence will continue to drop.

Of course there is some truth to these charges (and who am I to criticize “the many excellent law blogs”?). But it seems to me that they are mostly wrong and overblown. (Lengthy thoughts continue below the fold:)

First, the emphasis on judicial citations is misleading. Not all law review articles are trying to be cited, let alone be cited by courts. I can say from personal experience that there are a lot of articles that get read and used by law clerks and law firm associates but aren’t cited in the final opinion or brief.

Then there are articles that simply address other audiences. Some address legislatures — think of Vic Fleischer’s work on carried [...]

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Shameless Plug: Law Review Edition

Pepperdine’s Derek Muller considers the purpose of law reviews and asks: “Why aren’t more journals like the Case Western Reserve Law Review?”  Among other things, Professor Muller notes the law review’s e-reader friendly formatting and typeface, podcast series, and substantive Twitter feed.  I’d also note that articles are promptly published online in PDF and that the law review tends to host interesting symposia (including last year’s on hydraulic fracturing and one next month on the Supreme Court’s decisions in the gay marriage cases).  
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Thanks in Authors’ Footnotes

Law review article authors routinely thank lots of people in their thank-you notes (generally the introductory footnote that also mentions the author’s affiliation, e-mail address, and the like). I’ve often heard the argument that authors try to use these thank-you’s to impress readers, and especially law review editors: Citing lots of Big Guns in the thank you note, the theory goes, allows the author to shine in the Big Guns’ reflected glory, on the theory that if the author thanks Akhil Amar, Charles Fried, and so on, he must be at least a Medium-Sized Gun himself.

As I mentioned in a post back in 2007, I’ve always been skeptical of that theory, which strikes me as unduly cynical. I have nothing against cynicism if it’s justified, but here I don’t see much of a justification.

A thank-you note doesn’t show that the thanked people read the article, or even that they know the author well. If you go up to Amar or Fried or nearly any other scholar at a conference and ask them a brief question related to your research interests, they’re likely to answer it: It’s the polite thing to do, plus most scholars are genuinely interested in answering listeners’ questions, and flattered to be asked for advice. And if the answer is helpful, then the author could (and even should) thank the answerer for the help.

So I suspect that the thank-you note generally reflects nothing other than that the author has gotten some small help from the person being thanked. Readers — including law review articles editors who are selecting articles — know that, and authors know that readers know that, so there is little reason to think that authors are including the thank-you’s to impress readers. Instead, the main reasons for the long thank-you’s are [...]

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What Should You Do When Someone Incorrectly Cites Your Academic Work?

At CoOp, Lawrence Cunningham ponders how academics should respond when someone else incorrectly cites their work.

Wonderful as it is to be cited, being cited incorrectly poses a dilemma. If your article is referenced for a proposition it does not support, what should you do? Should you alert the author of the piece or the editor of the journal? Should you ignore it? Should you correct the reference the next time you publish on the topic?

It’s a good question, and something I’ve wondered about myself. [...]

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Harvard Human Rights Journal Editor “a Little Concerned” About a Prospective Author’s Having Clerked for a Conservative Supreme Court Justice

David Lat (Above the Law) reports on an interesting e-mail exchange among the editors of the Harvard Human Rights Journal (which, like the great majority of law reviews, is edited by law students); I quote a long excerpt below.

Here’s my take: It’s almost inevitable that an editor’s judgment of the quality of a law review article — especially an article that makes arguments about what the law should be, rather than just describing what it is — will turn in part on the editor’s ideology. Even if the editor tries very hard to just evaluate the quality of the reasoning, and set his own views aside, it’s human nature to evaluate reasoning more favorably if you agree with its bottom-line results.

Moreover, some journals see themselves — and are seen by the world — as trying to propagate a particular set of views. That’s most clear outside the academy, with magazines such as The Nation or The National Review. But it’s also true for some law journals, such as Unbound: Harvard Journal of the Legal Left and The Texas Review of Law & Politics, which carries on its site the slogan “The Unfettered Pursuit of Conservative Legal Scholarship.” I think it’s generally better for most law reviews to not limit themselves this way. But there’s certainly room among the many hundreds of law reviews for a few that have an overtly ideological approach, if they are indeed being overt about it.

What troubles me about the e-mail is that its focus is not on the ideology of the article, but the ideology of the author. That, I think, is much more troublesome in an academic publication, because it contradicts what should be a basic academic principle — evaluate the qualities of the argument (even if your [...]

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Reminder to Law Review Editors About Rearranging Citations and Parentheticals

I’ve seen people err on this so often that I thought it was worth noting: If you’re rearranging citations in a footnote (usually to follow the Bluebook citation order recommendations), make sure you look closely at the parentheticals.

Some parentheticals in a long citation refer back to earlier parentheticals, using phrases such as “(same)” or “(similar except for …).” Such references make sense, because they make string citations shorter and, often, easier to grasp. But if you just rearrange the order of the citations without updating the parentheticals, the parentheticals will now no longer be correct.

More broadly, some citations in a citation string are not in the same order as the Bluebook recommends, precisely because they break down sources by subject matter — for instance, they might cite some statutes that use one phrasing, with “same” or “similar” in all the parentheticals but the first, and then some other statutes that use another phrasing, with “same” or “similar” in all the parentheticals but the first. Watch for that; and if you see that, then either don’t reorder the citations in a way that will break this useful separation, or at least talk to the author about whether he wants to keep his original citation order. [...]

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Richard Posner on the Bluebook

Almost five years ago, I wrote a post arguing for the abolition of the Bluebook, the standard system of legal citation used by most law journals. As I argued there and in several subsequent posts (e.g. here), I think the Bluebook is vastly more complicated than it should be, and creates an enormous waste of time and effort. But I’m a Bluebook cheerleader compared to Judge Richard Posner, whose recent Yale Law Journal article criticizing the Bluebook was recently linked by Senior Conspirator Eugene Volokh:

Nowadays the word “hypertrophy” is used mainly to denote a class of diseases in which an organ grows to an abnormal size because of the uncontrolled growth of the cells that constitute it. But the word is still used occasionally to denote a structure or activity that has grown far beyond any apparent functional need. An example is the Egyptian pyramids. The pharaohs needed a secure burial place because they were buried with valuable possessions that they believed they would need in the afterlife. But security didn’t require an immense pyramid of stones above the burial place….

The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the anthropological sense. It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture.

Judge Posner is one of the founding fathers of Bluebook abolitionism, having advocated it for almost twenty-five years, ever since his 1986 University of Chicago Legal Forum [correction: U of Chicago Law Review] article on the subject. I am pleased to to follow in the footsteps of the world’s most distinguished legal scholar on this issue. I do worry, however, that his Egyptian pyramid analogy is a bit too generous to the Bluebook. While the pyramids [...]

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Because We Thought The Errors In Your Article Were Cass Sunstein’s Fault

It is common in the author footnote of law review articles — you know, the footnote that follows the author’s name that tells you who the author is — to thank people who have read drafts of the articles and offered comments to help improve it. It is also common to follow that expression of gratitude with a remark that any errors in the article are responsibility of the author rather than the people who helped with it. Here are a few examples of the latter from recent articles, found by running a search for “thank! /p error! /s mine & da(2009)” in Westlaw’s popular journals and law reviews database:

All errors are mine and mine alone.
Any errors contained herein are mine.
All errors are mine.
All errors, of course, remain mine.
All errors contained herein are mine and mine alone.
All errors and conclusions are mine.
As always, any errors or oversights are mine alone.
Any errors that remain in the paper are mine.

The sentiment of the “all errors are mine” comment is supposed to be a generous one. You wouldn’t want anyone who just read the paper and offered some comments — or perhaps who helped do some research for it, such as a research assistant — to be blamed for errors in the paper.

At the same time, am I right that the “all errors are mine” comment is pretty useless? If a paper has an error in it, I put the responsibility for that on the author. If it’s a Bluebooking error, I might put the responsibility on the editors of the journal who were in charge of Bluebooking. But it would never occur to me to blame a person who read an article and offered comments for any errors found in the paper. [...]

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Measuring the Accuracy of Law Review Placements

Law professor blogs love to debate the law review submission process, and in particular the pros and cons of student-edited journals. The most common complaints about the current system are that placements reflect author/school prestige and students just aren’t informed enough to separate better articles from worse ones. Over at Prawfs, Fabio Arcila comments: “There seems widespread dissatisfaction with [the existing] state of affairs, yet inertia continues to reign.”

Here’s a way to get over the inertia, or at least to get real empirical evidence of how serious the problem might be. I propose a study comparing placements to peer assessments that would work like this:

(1) Pick 10-15 articles in a particular area of law accepted for publication in a wide range of journals in the last year.
(2) Ask 10-15 accomplished scholars in that field to rank the quality of the articles (with author names and journal placements removed).
(3) Compare the explicit scholarly ranking with the prestige (and thus implicit ranking) of the law review placements.

If the assessments of the accomplished scholars closely or roughly match the assessments of the journals as measured by journal prestige, then the complaints about student selections and their overreliance on schools and authors probably don’t mean very much. On the other hand, if the journal placements and the assessments of top scholars show little or no correlation, then I think the study would provide a very real boost to the complaints about the law review placement system.

Oh, and I acknowledge that asking for the evaluations of top scholars has its own serious methodological problems. Those scholars have their own biases, and they may be influenced by author identity even if not provided (as most fields are pretty small — an expert can often figure out the author). But [...]

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