Many student law review articles, as I've noted before, do get cited by courts — but most never do, and many get cited only once or twice. Occasionally, though, one sees a student article that is cited a lot, even a lot more than most articles by tenured academics, and seemingly has a significant influence. Of the student articles I've seen that are published since 1990, the two most-cited-by-courts are Janet Hoeffel's The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant (Stan. L. Rev. 1990), which has been cited by over 90 academic works and over 25 cases; and Victor J. Cosentino's Strategic Lawsuit Against Public Participation: An Analysis of the Solutions (Cal. Western L. Rev. 1990), which has been cited by 10 academic works but 19 cases.
I hope to have some words by Prof. Hoeffel (who now teaches at Tulane) soon. But for now, I thought I'd post an interview with Victor Cosentino, who's now at lawyer at Larson & Gaston in Pasadena.
What particularly interests me — and, I would hope, many law students — about Mr. Cosentino's article is precisely that it wasn't published in a Top 10 law review or by a student at a Top 10 law school. The Washington & Lee Law Library law journal ranking ranks Cal Western at #150 in combined rating of law review citations, and not far from there in court citations. Setting aside Mr. Cosentino's article, all the other articles in the journal from 1990 to now have gotten only 45 court cites put together. Also, most of the other most-cited pieces were written by students who are now professors; and becoming a professor can help get your piece cited more (though of course there are also other interactions between the two), since people who stumble across the piece might recognize your name and be more inclined to read the piece. Yet Mr. Cosentino's piece has had a readership and an impact that most professor would envy. I know I certainly do.
In any case, here's the interview; many thanks to Mr. Cosentino for taking the time to respond (some paragraph breaks added):
Thanks for giving me a call today. As you can imagine, it is not the kind of call I get everyday.
I took a stab at answering your questions, below. Please let me know if you need any clarification.
1. Why did you decide to write — and publish — your article?
2. How did you get the idea for the article?
Our law review required all second year student law review members to write an article. Like many students, I had to cast around through a number of topics to find something that interested me and had room for another article.
The issue of SLAPPs caught my eye, because it had only recently be labeled as an actual type of litigation, and then only by non-legal academics. The subject appealed to me because SLAPPs were typically the reverse of the David versus Goliath story, because while the Davids where often sympathetic, the Goliaths won devastating victories by using the legal system. There were very few articles on the topic and most of the writing was still in newspapers and magazines.
From a practical standpoint, the fact that the subject was new territory appealed to me more than the standard approach of writing an article on an important new case which would be covered in a dozen articles within the year.
The article was selected for publication by the editorial staff of the law review and I was honored to spend another full semester preparing it for publication.
3. Did you find you learned useful things — whether about writing, about legal reasoning generally, or just about the area you were discussing — while writing the article?
In writing the article, I realized there were no obvious solutions to SLAPPS using existing legal processes. While I was writing, the California legislature also took up the issue and proposed new legislation which has been modified several times since then. My approach forced me to look through a wide variety of legal tools which I probably would not have thought about otherwise. The lasting impression I came away with though is that the legal system itself could be punitive for participants. Sadly, sixteen years later, I think that continues to be the case.
As a writer, the process of writing the article and editing it through publication was very important. Before entering law school, I had been a computer programmer, and so other than technical documentation, writing this article was the first time I had ever written anything this long and detailed.
At the time I was writing the article, the "plain-English" movement was still young so most of the legal writing I encountered was older and fairly dense. I learned through this process that complicated subjects could be discussed effectively with relatively simple sentences. To this day, whether in a pleading, letter or a contract, I strive for accuracy and clarity in my writing. I think the law and facts (even when both are very complicated) are most compelling when stripped to the essentials.
4. Have you found that having published the article has helped you in your career ...?
I never attempted to market or publicize this article; that never occurred to me as a law student. Several years later though, this article helped me get another article published in a magazine (BYTE), which lead to several more paid writing assignments and a speaking engagement. The subsequent work was not in the same area as the law review article, but I think the publication of the article helped persuade the editor for the next project that I could do the job.
My mistake was not to continue nurturing those publishing contacts and to not keep writing. But, life got very busy and something had to give. So, I do think writing can help a legal career if you keep doing it. I do not think the subject of a law school journal article needs to define a career path.
5. Is there anything else you'd like to say about all this?
Sometimes things take on a life of their own. This was one of those times. I wrote this article in 1991 and was happy with it and pleased that it was published. After law school, I left California for a number of years and started practicing in a different area of law. I rarely thought of the article again except when I was updating my resume. So, I was quite surprised by the frequency with which the article was cited.
I suppose it helps that article came out just as the area of law was taking off. As a result of that lucky timing (and I'd like to think the quality of analysis) this article has been part of the development of SLAPP law in California.
Frankly, I think that's one of the advantages of a student note over most other legal writing. Law students can play with ideas in the abstract without the constraints of worrying about the actual effects on the litigants. In their day-to-day work, neither lawyers nor judges have that freedom because the positions they take affect actual people. I think my article has shown that it's very important for law reviews to leave room for students to explore new and emerging topics.
Related Posts (on one page):
- Thoughts from Janet Hoeffel, Author of a Very Successful Student Note:
- Interview with Victor Cosentino, Author of a Very Successful Student Note: