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A Parable:

I used to think that I (like everyone else) basically understood the story of the Emperor's New Clothes. It wasn't until I re-read the original story a couple of months ago, though, that I actually got it. [I've been slowly making my way through a volume of collected Hans Christian Anderson stories in Italian - to keep my Italian in good shape for my next visit to Italy, and because I thought (probably mistakenly, as it turns out) that fables and children's stories would be the right level for me to work on]. Everyone knows the story -- the king is naked, but nobody acknowledges it until finally some small boy speaks up in the crowd, at which point everyone realizes how stupid they've been . . . But what I hadn't understood was: why did the King walk around naked in the first place? Why did he think he had clothes on?

The answer is that two tailors had come to town and convinced everyone that they made clothing with special magic attached to it; the magic was that the clothing was invisible to stupid people. The King ordered some, and sent his courtiers to check on its progress in the tailors' shop. The courtiers, of course, were terrified of being labeled stupid, so they reported back to the king that it was coming along beautifully. Positive feedback then took over, and did the rest, until everyone is falling over themselves commenting on how beautiful the new clothes are.

I was thinking about this recently, not, as you might suspect, in connection with Sarah Palin's nomination, but in connection with the systemic problems of legal scholarship. My law school -- like many others, I suspect -- is undertaking a review of the whole law journal system, with an eye, possibly, to making some substantial changes. It's a discussion that sometimes reminds me of the King's -- staring us in the face is a system that is profoundly, and even laughably, dysfunctional, but we all just stand around and grumble to ourselves about it and nobody stands up to pronounce it so. [I use "laughably" advisedly; I've actually had people laugh when I tell them that the direction of legal scholarship is set, in substantial measure, by 2d and 3d year law students.] It's not just the Internet, of course, that is pushing this along, though that has made the cracks all the more obvious -- if the designation "published in the XYZ Law Review" has any utility at all anymore, it is not as a distribution vehicle but as a signaling device: read this because it's been selected as a particularly good one to read. But really -- what value could that signaling possibly have when we're talking about selections made by 2d and 3d year law students? None whatsoever. The system will, I hope, have entirely disappeared in 20 years or so -- but it's going to take some institution to stand up and say that it is ridiculous and that they're not going to support it any more for that to happen.

Pseudoanonymous Ron Paul:
Welcome to my world.
9.10.2008 11:51am
A.C.:
I believe the king himself looked at the "clothes" and couldn't see them, but was was afraid of looking stupid in front of the courtiers who lied and said they could.

The kid had nothing at stake, so he's the only one who could call everyone else on their efforts to maintain the fiction.
9.10.2008 11:56am
Anony:
But they're second and third year law students at the best schools!!

Oh, never mind.
9.10.2008 12:02pm
PLR:
I seem to recall that our Law Quarterly, of which I was one of three articles editors, had a faculty advisor who steered the editor-in-chief toward issues and pieces of particular interest. In no sense do I think the final product was entirely put out by some unguided students in their early 20s who had never held any professional job, let alone one as a practicing lawyer.

It is quite possible that certain professors with creative/unorthodox views did not see any articles published that would have given support to their theses. So be it. Nowadays they can have their own blog.
9.10.2008 12:04pm
Cornellian (mail):
It's sort of like a network effect for a lie. The more people who profess to believe it, the more reluctant an individual adult becomes to question it openly.
9.10.2008 12:04pm
Steve:
But why would the king want to appear naked in front of stupid people? Even if he felt obligated to pretend that he saw the clothing, shouldn't he have said, "Yes, yes, those garments are lovely, but we're really not interested"?
9.10.2008 12:05pm
Modus Ponens:

[W]e all just stand around and grumble to ourselves about ["the whole law journal system"] and nobody stands up to pronounce it so (emphasis added).

Really? No one's griping about this or pointing up its shortcomings?

Perhaps the larger problem is that legal academics fail to listen to one another.
9.10.2008 12:06pm
Sk (mail):
"I was thinking about this recently, not, as you might suspect, in connection with Sarah Palin's nomination"

Nope. I thought you were going for Obama's nomination.

Sk
9.10.2008 12:07pm
DonBoy (mail) (www):
Steve's point is actually valid. Although the condition shouldn't be "stupid people", but something more like "evil" or even "corrupted" -- it has to be a quality that everyone realized a small child couldn't have, which is why his announcement reveals the scam.

By the way, I recommend the ENC song from the 1950s film "Hans Christian Andersen" -- the songs in that movie are by Frank Loesser, of Guys and Dolls, etc. fame.
9.10.2008 12:15pm
SeaDrive:

"I was thinking about this recently, not, as you might suspect, in connection with Sarah Palin's nomination"


Nope, thought it was going to be the mortgage crisis.
9.10.2008 12:21pm
Al Maviva (mail):
It's not going to change because if you demand scholarship that is both trenchante and relevant in the real world, few professors will have a damn thing to say. It takes a serious first rate mind to say something unique and worthwhile about so many of the settled areas of the law about which there must be so much instruction, such as contracts - see e.g. the notion of efficient breach - but any fool can prattle on about current contract law being racist, or sexist, or against Laplanders or offensive to the King of Siam, and get it published. Not having anything to say that is both useful and original means that it's going to get a lot tougher to get those 'publish-or-perish' tenure-track positions. Demanding actual merit from law reviews is probably hopeless, given the world view of most of those that I have met in legal academia. To accept that you can't really improve a whole lot on something that somebody else said, is to accept a canon. That's a profoundly conservative thing to do and I don't think there's a law school out there, Regent and maybe a Catholic start-up excepted, staffed with a preponderance of instructors willing to let that happen.
9.10.2008 12:22pm
Bama 1L:
Without conceding any of Al Maviva's points about scholarship generally, I observe that, since Regent and that Catholic start-up have explicitly revolutionary purposes, one wouldn't expect them to accept canon.
9.10.2008 12:28pm
Bill Poser (mail) (www):
Out of curiosity, how did this system get started? There is no other academic field in which, to my knowledge, the journals are edited by grad students.
9.10.2008 12:34pm
Norman Bates (mail):
One other point: (I think I remember this correctly but I'm not positive.) English translations of Andersen are often Bowdlerized to remove some of the sting in the tales and make them more suitable for children. I believe that in the Danish original, the boy who points out that the emperor is naked winds up in a world of hurt.
9.10.2008 12:43pm
Reader (mail):
David (or others): I'd like to keep up my beginner Spanish for an upcoming visit. Do you think this is a good approach (children's stories), and if not do you have a better suggestion (I'd like to avoid a textbook because they're tedious)?
I found real children's stories to be terrific for learning Italian -- the problem with the Anderson (or Brothers Grimm) tales is that they're not, really, children's stories, and the vocabulary is often pretty complicated. But if you can find books for 1st or 2d or 3d graders, those are terrific, imho./DavidP
9.10.2008 12:45pm
Javert:

some small boy speaks up
I thought it was a girl. From Wiki: ". . . the emperor's pretension is exposed by a girl . . ."
9.10.2008 12:49pm
Determinative Network Effects:
"I was thinking about this recently, not, as you might suspect, in connection with Sarah Palin's nomination..."
Then fuggadaboudit, Professor Post. If it isn't connected to Sarah Palin, it can't be on VC nowadays. Just ask Professor Lindgren.

Although anyone who can concisely rewrite the parable as "Sarah Palin and the VP's New Clothes" may have wonderful career prospects in celebrity porn.
9.10.2008 12:52pm
Simon P:
David, I note that you also neglect to point out what it is about the law review system that is deficient. You suggest that the emperor may not have any clothes, but you don't state that he is naked. So what are the problems with the current law review system? I can think of at least four possibilities:

(1) The quality of academic work published in law reviews has declined or proven unreliable. The over-reliance on student editors results in an inordinate reliance on the cachet of a name or an institution in deciding what to publish, rather than, say, the quality of the idea or of the writing. Combined with the reliance on the cachet of a journal's title as a proxy for the quality of the ideas within, the result is that quality academic work by lesser-known professors at less-prestigious institutions is shunted to the side. Such professors must play inter-journal politics if they want to get their work published in a notable journal.

(2) The law review system has resulted in sending problematically narrowly-qualified candidates into academia and clerkships. Law-review membership is a primary credential for getting clerkships, which is, in turn, a primary credential for landing academic jobs. Over-reliance on these credentials has resulted in a massive self-selection effect, limiting the diversity of ideas heard in legal academia and in judicial opinions, creating a kind of echo chamber. Also, this degree of reliance has allowed professors to land positions at law schools without ever having developed a practice or dealt with clients on a regular basis.

(3) There are too many law journals. Largely because of (2), law schools have pushed up the number of legal periodicals in order to channel the nervous energy of their students. This has resulted in an immense number of "academic journals," a real embarrassment when compared to the number of journals associated with other academic professions. It is not feasible to follow most of these journals, so a lot of quality academic work, even if it manages to get published in the first place, routinely falls through the cracks. This slows the pace of intellectual exchange and innovation and pretty well ensures that judges aren't going to read much of what professors write.

(4) Much of what is written is of little use to practitioners. Because legal academics can land jobs without ever having practiced seriously, they don't intuitively understand what is useful to practitioners or judges -- or at least, they don't until well after judges start coming up with solutions to hard problems themselves.

I am not sure how many of these problems are likely to be addressed by your school, David. I don't mean to demean the effort, but tenured professors have a bit invested into the system and are likely to be useless for bringing a really critical eye to the process or to be capable of thinking of a radically new process -- which I think is probably necessary.
9.10.2008 12:53pm
Hoosier:
Re: Fables recognized but not remembered--The Fox and The Grapes is the most frequent victim. "That's sour grapes" is taken to mean simply "you're just resentful."
9.10.2008 12:56pm
Reinhold (mail):
Your point could be applied to legal education generally. I expect many more law schools will move towards a more practical education, as W&L Law is doing.
9.10.2008 12:56pm
Lior:
Bill Poser: I would not compare law students to grad students in other fields, since they are not research students. They are more comparable to students in a non-thesis master's programme. In many fields professors who are asked to review papers for a journal have their students do it instead. Depending on the strength of the students this can be good or bad. But the editors of the journal are always faculty.

The real question is why no law professors don't found new journals edited by faculty. New journals are being founded every day, and web-based distribution makes journals extremely cheap to run. You need to pay one secretary and one webmaster, and a bit for bandwidth, which are easy to recover with modest publication fees.
9.10.2008 12:57pm
Sarcastro (www):
I like the scorpion "it's my nature" one the best.
9.10.2008 1:14pm
Mark Field (mail):

Re: Fables recognized but not remembered--The Fox and The Grapes is the most frequent victim. "That's sour grapes" is taken to mean simply "you're just resentful."


I'm sensing a bit of resentment here.
9.10.2008 1:22pm
Bruce:
David, the phenomenon you're describing is true of graduate studies as well -- indeed, possibly all of academia. Professors and grad students tend to be mortified to admit that they don't know or understand something, which means that they are hesitant to question claims that turn out to be ludicrous or unsupported.
9.10.2008 1:24pm
Bama 1L:
I think faculty are reluctant to found new peer-reviewed journals because doing so constitutes a shot across the bow of legal scholarship as it now exists and an explicit devaluation of the work of scholars who publish in student-edited law journals.

Plus it's a lot of work! Wasn't editing legal journals originally pawned off on law students to relieve professors of the bother?

On the other hand--and maybe this is good and maybe it isn't--peer-reviewed journal articles in other fields simply aren't edited, source-checked, etc. to the extent that law review are. To the extent that judges and practioners rely on law review articles, some one does need to be doing this. Faculty won't take the time, and hiring professional editors would be too costly.
9.10.2008 1:25pm
Bruce:
The real question is why no law professors don't found new journals edited by faculty.

Lior, I think the answer is (a) because it's a lot of work, and (b) it would be a long hard slog before any new journal gained the cachet of the existing top-ranked student journals.
9.10.2008 1:26pm
Duffy Pratt (mail):
You are missing a major point about the current system. Without the 2d and 3d year students you complain about, there would be no-one reading legal scholarship at all. Of course, that might be a preferable result.

Maybe if Law Journals were left to market forces...
9.10.2008 1:29pm
Bruce:
Oh yeah, and Bama 1L reminds me of another answer: (c) faculty-run journals have their own problems, e.g. extreme delay, cliquishness, conflicts of interest, and lack of double-checking of the sources.
9.10.2008 1:30pm
Oren:
I prefer the parable of the Wolf and the Lamb (Aesop, IIRC). The capacity for rationalization is limited only by what one has to gain by it.
9.10.2008 1:30pm
Hoosier:
<i>Bruce:
David, the phenomenon you're describing is true of graduate studies as well — indeed, possibly all of academia. Professors and grad students tend to be mortified to admit that they don't know or understand something, which means that they are hesitant to question claims that turn out to be ludicrous or unsupported.</i>

Absolutely, totally right.

I had a colleague in grad school who nodded knowingly whenever any book, even, whatever, was mentioned. ('Yes, yes. Mm-hmm.') I tested it out one time, completely inventing an "important monograph"—with which, as it turned out, he was familiar.

I never said: "Aha! Caught you!" I just wanted to see if I was reading things correctly. It was a "developmental experience." I resolved not to pretend to know things that I didn't know from that point on.

And then, guess what, I did pretend.

About ten years ago, I became afflicted with almost unshakeable self-confidence. Not arrogance. I just realized over the course of one spring semester that my senior colleagues were not smarter that I was. Nor less smart. We were (are) all confined to a pretty narrow band of "bright" people.

With one exception, I have never had a colleague whom I would call a "genius," in the strict Oppenheimer/Wittgenstein/Whatever sense of the term.

Now, entering middle age, I no longer pretend to know something I don't know, even if the conversation begins with: "I can't believe some people have never heard of . . ."

My second revelation: Faculty at research universities are immensely insecure, on average. And many are almost ridiculously easy to intimidate.

Don't ever let your students know this last bit of information. And use it only for good yourselves.

Hoosier
Voice of Reason, Experience, and Indolence
9.10.2008 1:45pm
Paulj (mail):
Thank you for hopping into the lengthening que of ninnies complaining that the legal profession should simply stop being itself and become like everyone else in the world. If I wanted to be a historian (or insert other field of your choice), and work in the institutional context of that field, along with its history and culture, I would have gone to grad school for history. As it is, I (and I assume most other people in my position) want to be an attorney. I want to join the legal profession largely because of, not in spite of, its professional idiosyncrasies. So scholars in other fields don't understand the legal profession--- this is not a surprise. This is why you hire an attorney, and not a biologist, to handle your legal work. I utterly fail to see why we should be ashamed of our traditions simply because people who have no relationship to them do not appreciate them.
9.10.2008 1:47pm
Hoosier:
Oren

When my eldest was 7 or 8, I found a copy of Aesop in a used book store, and we started reading it. He was almost obsessed by the stories; we read them over and over for a couple months. I had never read more than a couple, and that was in school, long ago.

They really are fun for kids, and useful for adults. Especially those of us who work with late adolescent kids, and need a "narrative" to help them understand a point.

Having said that, the Wolf and the Lamb still perplexes me a bit. We know the Wolf well. Why is he even seeking to justify his actions? Perhaps he's less like Hitler ("Here is the threat posed to our civilization by the Jew!") and more like Stalin ("There must be many people in the USSR who oppose me. Kill a whole bunch of Ukrainians.")?
9.10.2008 1:51pm
Wallace:

The real question is why no law professors don't found new journals edited by faculty.


Apparently, Whizzer White was offered a position on the law review when he was in law school and declined, saying "Why would I want to edit a magazine for free?"
9.10.2008 2:13pm
zmaffeo (mail):
I'm coming from the sciences so please forgive my ignorance concerning practices in other fields. I don't understand Bama 1L's assertion that peer reviewed journals are not source checked.

In the sciences almost all relevant journals practice double blind peer review. This helps mitigate the ability of established labs to simply use their name to publish substandard science. While reviewers don't normally rerun the experiments they are reviewing, it is not unusual for a reviewer to do some supplementary data analysis on a paper's results and request additional experiments be run to rule out possible flaws or inconsistencies.

Frankly, I agree with David's assertion that having students one or two years removed from undergrad serving as the arbiters of any type of scholarship is a bit disturbing.
9.10.2008 2:18pm
Sua Tremendita (mail):
Unbelievable. The idea of young minds given a chance to review fresh, new ideas, is simply revolting to the old guys, isn't it? Peer review is nothing more than censorship by the old elite. New ideas are crushed; old ideas are forever re-declared beautiful because if you don't see the glory, then you are stupid.
Wow, I didn't think readers were perceptive enough to uncover my hidden agenda -- but Sua Tremedita (great name) has penetrated through to the core. I'm afraid of fresh, new ideas!! That's it!!
Actually, that's not it. I don't care a whit about the old elite. I think legal scholarship should be in the hands of people who understand legal scholarship and the law. Law students do not -- they should not be expected to, because they are just learning. And I never said a word about peer review, either - which can, as you say, have counter-productive results. DavidP
9.10.2008 2:19pm
Bama 1L:
Zmaffeo, I'm coming from history and the humanities more broadly. I think research in these fields is more similar to legal scholarship than scientific scholarship is. When a historian (political scientist, English professor, etc.) does significant original archival research, there is just no practical way to double-check assertions. The peer reviewers have broad familiarity with the field but haven't actually looked at the sources the author uses.

Say a historian goes to some foreign government archive, takes notes on the correspondence of some obscure minister, and later publishes something based on it. The peer reviewers are certainly not going to have copies of that correspondence themselves, nor are they going to demand to see it unless the author is saying something totally insane. The author has to get it right. The peer reviewers should be pretty good, however, at discerning whether the author's conclusions make sense given that the sources are accurately reported.

The law review process relies on student editors who don't really know anything about the field but can look at exactly what the author was looking at, because any authority you'd cite in legal scholarship has been published and is widely available. They actually do double-check everything that the author says or cites. But they may not be as well-equipped to see if the argument makes sense as true peer reviewers would be.
9.10.2008 2:42pm
Bama 1L:
Sua, in my limited experience the people who have problems with the law review system tend to be younger faculty and law students, often with some experience of scholarship in other disciplines.

"The old guys" are fine with the law review system because it benefits them. Look, arguably the law review system results in greater elitism (in the bad sense of conventional ideas and credentials having greater weight than innovation and creativity) because all student editors really have to go on is the author's c.v. Peer reviewers may be better suited to see the particular genius of a piece written by a non-pedigreed scholar.

Paulj makes very good points. If law reviews serve the needs of judges and practitioners, then it should be tailored along those lines and not ape the practices of other disciplines. But who seriously makes that claim? Furthermore, what need? Law firms and professional societies (ABA, DRI, whatever ATLA is calling itself now, etc.) do a fine job of publishing newsletters and other reviews of recent legal developments of interest to practioners.

It seems, instead, like law reviews really do serve the academy's internal needs, just as journals in other fields do. (No one thinks the American Historical Review or PMLA should speak to an audience outside the scholarly community.) If that is the case, then we should accept the ramifications of that fact.
9.10.2008 2:50pm
Oren:
Bama, what seems incredible to me is that there are any important historical documents still condemned to live only on dead trees. Bulk scanning technology is such a mature technology that you'd think any archive would be keen to save money by putting the whole thing online and slashing his hours (not to mention the obvious benefits of wider accessibility and timeless preservation). Old habits die hard, I suppose.
9.10.2008 2:51pm
Fat Man (mail) (www):
I have long said that the law journals are worthless.

It was not an original idea when I went to law school some 35 years ago, because Fred Rodell* had said it more than 40 years before that.

There are useful journals for practitioners such as Business Lawyer and Tax Lawyer (both published by the ABA), but the academic journals have devolved into forums for preening and baffling the straights.

That said, such functions are valuable to their writers and editors and will continue until some outside event makes them economically nonviable.

*Rodell was eulogized by Charles Alan Wright as the "bad boy of American legal academia". If you are interested in the legal profession and you have not read Rodell, you are missing a treat. The link has a number of his writings, including "Woe Unto You, Lawyers".
9.10.2008 3:00pm
Al Maviva (mail):
Much of what is written is of little use to practitioners.

We have a winner, Johnny!

The phrase "tits on a bull" springs to mind but that's insulting to bulls and small birds. Some scholarship is really useful. Some of the stuff that coalesced around the Second Amendment issue, for example, really helped crystalize the arguments about originalism, history, and public policy. Most of the ink gets spilled, however, on scholarship that is speculative at best. As a practitioner who often is casting about trying to get up to speed in new practice areas or to understand the subtleties of common subjects, it's very hard to accomplish this via law reviews. All that spilt ink, most of it doing so little to advance our understanding of the laws as they actually exist... As long as law reviews are by and for the academy it would be okay, but we're told that law review membership is impressive and a sign to practitioners saying "hire this brilliant person." If it is supposed to be a credential that means something in the real world it would help if law revue membership meant something beyond "wrote things that impressed a bunch of people who generally don't practice law."
9.10.2008 3:04pm
eyesay:
The “tailors” in “The Emperor’s new clothes” said that the clothes would be invisible to anyone who is stupid or unfit for his post.
9.10.2008 3:15pm
Hoosier:
Oren:
Bama, what seems incredible to me is that there are any important historical documents still condemned to live only on dead trees


I can vouch for Bama's example, which was particularly well-chosen. For those of us who work in the history of international relations, foreign research travel is unavoidable. Some countries have a relatively small percentage of documents you'd want to look at on a web-accessible database (Germany). Others (Russia) have next to nothing. Still others (France) don't even have online guides to help you figure out what they actually hold in the archive. You don't know until you show up. Yet others (Italy) don't seem to have heard of those internets tubes.

We North Americans are spoiled.
9.10.2008 3:19pm
darelf:
Reinhold:
Your point could be applied to legal education generally.

There, fixed that for ya.
9.10.2008 3:24pm
zmaffeo (mail):
Bama 1L,

Thanks for clarifying. It's an interesting distinction. I don't doubt rigorous source checking would be of some value, just as replicating an experiment to confirm the results adds undoubted value. But I feel the sanity check provided by peer review is an invaluable tool to scholarship. Collecting data is a relatively trivial task. The devil is in the analysis of that data.

I'll grant that your defense that the needs of a certain field of academia are important when judging its scholarship is somewhat valid. But you can understand the sniping from other fields if legal academics point to publishing in what is essentially a student newspaper as proof of their scholarship.
9.10.2008 3:31pm
zmaffeo (mail):
I appologise if my previous comments offend anyone especially my legal department. I still think your brilliant and would appreciate all your help on patent applications. :-P

z
9.10.2008 3:33pm
lonetown (mail):
Add global warming hysteria to the list of things that only "stupid" people can't see.
9.10.2008 3:40pm
Barbara Skolaut (mail):

I was thinking about this recently, not, as you might suspect, in connection with Sarah Palin's nomination

Silly me - I suspected you were thinking about it because of Obama's nomination, and all the sychophants sho refuse to admit there's no there there.
9.10.2008 3:43pm
one of many:
The problem with comparing law reviews to most other fields scholarly publications is that they have different purposes. In other fields the journals provide a clearinghouse for the results of experiments and inform on what other practitioners are doing in the fields, in law there are clearinghouses of this information other than scholarly journals (Westlaw &c). Law review articles (when done right) are properly viewed as speculative essays on new experiments which can be conducted, something which might be best performed by minds which have not spent 20 years in the field. If you want to know what the results of the latest gout treatments is you refer to a medical journal, if you want to know the results of the latest cases defining when probable cause is necessary you do not reach for a law review.
9.10.2008 3:58pm
Hoosier:
But you can understand the sniping from other fields if legal academics point to publishing in what is essentially a student newspaper as proof of their scholarship.

I learned here on VC that law reviews were not peer reviewed. I was rather stunned by this information. But it does explain why my dean says that law review articles "don't count" for us.
9.10.2008 4:17pm
Jay Myers:
Bill Poser:

Out of curiosity, how did this system get started? There is no other academic field in which, to my knowledge, the journals are edited by grad students.

A professional school is not a grad school. Miss Tawanda's College of Beauty wouldn't become a grad school simply because she insisted all of her students have completed a baccalaureate.
9.10.2008 4:17pm
one of many:
Maybe, M. Myers but Cosmetology journals are not edited by advanced students from the Beautician's Schools. It really comes down to the purpose, until the advent of the internet a physician or a physicist might very well have as a main resource for the field a 30 year old text and whatever information had been published in professional journals while a lawyer who could afford to keep up the library (or a law firm) has had access to yearly books on new law with monthly updates outside of law review.
9.10.2008 4:33pm
Suzy (mail):

Plus it's a lot of work! Wasn't editing legal journals originally pawned off on law students to relieve professors of the bother?

I think you're onto something here. The work that goes into editing and cite-checking law review articles takes a lot of time, and professors might argue that there is some educational value in having students learn and practice these skills.
9.10.2008 4:46pm
wm13:
"what seems incredible to me is that there are any important historical documents still condemned to live only on dead trees"

It depends on what you are reading, but if you are reading documents handwritten 400 years ago with fading ink in, say, law french, and with no index, it is actually a lot easier to have the actual pieces of paper. Even the best scanned material is sometimes hard to read, and an actual book offers much better random access than even the best digital archive. And there are no text recognition programs that can read law clerks' cursive writing from 1600.

Of course, if someone wants to read, transcribe and index the material first, then the digital archive enhances accessibility. But the British government, say, possesses almost a thousand years of handwritten material. It would cost a fortune to transcribe it all.
9.10.2008 4:53pm
Fat Man (mail) (www):
"Miss Tawanda's College of Beauty wouldn't become a grad school simply because she insisted all of her students have completed a baccalaureate."

My Grandfather went to law school and graduated in 1914 with an L.L.B., he had no other post high school education or degree. My father spent a couple of years as a liberal arts student, started law school, joined the Army in WWII, came home, finished law school and graduated with an L.L.B. Later on, the University upgraded him to a B.A. and a J.D.

I earned a B.A., and a M.A., then I went to law school. It is trade school and it is a waste of time and money to treat it as a graduate program.

I think that in England and Canada law is usually and undergraduate degree, and we should adopt the same system.
9.10.2008 5:06pm
Cornellian (mail):
I think that in England and Canada law is usually and undergraduate degree, and we should adopt the same system.

I think in Canada a law degree is de jure undergrad but de facto graduate. In other words, technically you need only 2 years of college to get admitted to law school, but virtually everyone gets a full B.A. (or B. something) anyway.
9.10.2008 5:32pm
Ak Mike (mail):
one of many and Jay Myers have it right. Key to this issue is that the whole idea of "legal scholarship" is inherently problematic. Law review articles present no new information, except in the very rare instances when they are really attempts at historical research (such as the 2d amendment articles), in which case they would be more appropriately in a history journal.

Almost all law review articles are mastications or ruminations about material that is already known to those practitioners to whom it is useful. There is no reason not to use kids to edit this stuff, since its substance is of little import. I think it can be quite useful to the staff of the law review to read closely, edit for style, follow up on references, and so forth.

New physics comes mostly from academic physicists and is published in physics journals. New history comes mostly from academic historians and is published in history journals. Even new engineering gets published in engineering journals, and much of it comes from academic engineers.

But new law comes from judges, legislatures, and regulatory agencies, and is published as decisions, statutes, and regulations. If all academic law reviews ceased publication tomorrow, it would make virtually no difference to the legal profession or to what the law is.

There simply is no reason for law professors to edit law reviews. Law reviews are not the equivalent of academic journals in other disciplines.
9.10.2008 5:59pm
Lior:
Wallace, quoting another: "Why would I want to edit a magazine for free?"

Well, it is part and parcel with being a leader in your profession and a member of the community. Perhaps one of the reasons all top law journals are titled "Harvard Law Review", "Michigan Law Review", while we see few references to journals titled "American Constitutional Law" or "International and Maritime Law" (I'm not a lawyer, so these titles probably don't quite make sense). You would expect the leaders in these fields to want to keep the field going, hence contribute by editing the journals. You'd also expect lesser-known people to edit second-tier journals. Perhaps legal academia is just too small for this model?

PS: I apologize for the double negative in my post above. I rephrased my sentence and missed the "no".
9.10.2008 6:04pm
Fat Man (mail) (www):
New history comes mostly from academic historians and is published in history journals.


New History? I thought it came from the newspapers.
9.10.2008 6:11pm
gnholb (mail):
Fat Man at 2: PM:

Many thanks for the link to Fred Rodell.

His essay, Goodbye to Law Review is a hoot.

Sample, [law review articles are] "An answer to a Reply to a Comment on a Criticism of the Restatement of the Law of Conflict of Law."

Kinda reminded me of the comments section of some blogs I frequent.
9.10.2008 6:11pm
Lior:
A question from a non-lawyer academic: it is said that students "edit" the law journals. It is finally dawning on me that you seem to use the word in the sense "amend and correct the text".

In that case, I must explain what I mean by faculty "editing" the journal. In the rest of academia, the editors of a journal run the journal. They don't make changes to papers -- they require the authors to fix the papers. Editors set the scope and quality thresholds for the journal. They receive submissions, find appropriate expert reviewers for them, and decide if papers are acceptable based on the reviews. If the reviewer recommends changes the editor will ask the author to do them, and mediate between the author and the reviewer.

Some journals offer linguistic editing (but of course this is not done by the editors of the journal!), and some fix typos during typesetting.
9.10.2008 6:16pm
Adam J:
Lior- The vast majority of a law reviews editing involves checking and correcting citations (which are basically looking up a source &seeing if it says what the professor says it says &fixing the cite). The citations are almost invariably wrong, because professors don't generally learn the absurdly convoluted bluebook rules. This is essentially the equivalent of fixing a typo, although vastly more time consuming.
9.10.2008 6:41pm
Randy R. (mail):
If you really want to reform legal education, make it two years instead of three. I've never met anyone who thought that the third was anything other than a complete waste of time. Two years is enough to break you and teach you to think 'like a lawyer', and if you haven't by then, you won't get it anyway.

Or better yet, make the third year an apprentice program where you have to do all sorts of stuff that real lawyers have to, like filing papers, counseling clients, and dealing with basic landlord/tenant stuff that everyone should know.

If you want a really good analysis of why fairy tales are so important to children, (and by extension to adults) read Bruno Betelheim's The Uses of Enchantment. A better analysis has never been written.

I can't believe that Hoosier isn't familiar with it....
9.10.2008 6:53pm
Lior:
Adam: That is quite astounding. Most journals I know either expect authors to use their preferred citation format (and other typesetting conventions) the few that do their own typesetting still expect the citation information. Regarding "bluebook citations", computers are pretty good at following convoluted rules, so I'm not sure why law authors and journals us humans for this purpose at all.

The idea that the journal is responsible for doing what the author (or his research assistant) should have done before submission is quite novel.

As to the citations saying what the author says they do, that is indeed something the reviewer should check. But this is an argument in favour of using experts in the field as reviewers -- they are already familiar with most references, and can easily tell whether the citation is right. Do editors of the journals really check papers? The editor of the New York Times doesn't check facts in articles.
9.10.2008 7:30pm
Hoosier:
Ak Mike--I have been thinking along somewhat similar lines regarding legal scholarship. All things considered, it may be unfortunate that our law schools are (mostly) located within universities. As a result of this, law faculty have to publish to advance. Yet the vast majority of law students are looking to become practitioners, and will have no use for the scholarship that their faculty sweat it out to produce.


If correct, this would make law similar to education. When normal schools and teachers colleges became universities, their faculties gradually came under the same publication pressures as the institutions' letters and sciences faculties. Now they publish huge amounts of "education research," most of which never affects anything that goes on
in a classroom. And a very large quality of it is of such low scholarly quality that deans and other faculty don't take the ed school faculty seriously anyway.

Randy R: What do you mean I haven't heard of it? I've read it. Twice.

It's just that it was, um, a long time ago, and I can't really remember it that well. Can you *remind* me what he says?

Lior: //Some journals offer linguistic editing (but of course this is not done by the editors of the journal!), and some fix typos during typesetting.//

And in the case of a certain Ancient Near Eastern langs and lits journal, that means it's done by MrsHoosier. For $15/hr. That's right! A PhD from one of the top programs in North America gets you almost TWICE as much as your 14 year old babysitter! (Now ask me how big my university's endowment is. Go ahead. Ask . . . )


"Fat Man :

New history comes mostly from academic historians and is published in history journals.

New History? I thought it came from the newspapers."

Look here, my good man. It isn't history until *we* say it's history.
9.10.2008 8:37pm
Fat Man (mail) (www):
"If you really want to reform legal education, make it two years instead of three."

Another one of Rodells ideas. My third year was devoted to drinking, playing cards, and girls.

"Look here, my good man. It isn't history until *we* say it's history."

Who do you think you are? Oliver Stone?
9.10.2008 9:19pm
one of many:
My 7 point plan for responding to law review scorn:

the next time someone disses law reviews in front of you that you should
1)agree completely
2) suggest it is because lawyers are so verbose
3) express admiration for the ability of others to be so concise
4) point out that all of the important work of law is done in the courts
5) ALL of the scholarly work published in any given field probably doesn't equals 1/2 of the amount of published by just one circuit court
6) this leaves law reviews for what would be speculative pieces, filler and editorials in other scholarly fields
7) re-express admiration for the other field's ability to summarize everything that is being done in their field so well that they don't need separate law reviews just for the law review type of articles.
9.11.2008 2:51am