The state of legal academic writing is pathetic. The articles stretch the meaning of the word “irrelevant,” while simultaneously having a tremendous negative impact on the lives of a great many people.
Law professors like to discuss how important their research and writing is. But, it’s merely a game of smoke and mirrors. They will take a generally heavy topic, let’s call it “law,” and then discuss it in a very detailed, nuanced, and (we will concede) intelligent manner. Intelligent discourse about the law, the glue that holds our Republic together, that must be terribly important!
Except, it’s not. When you get down to it, legal writing influences, at best, a handful of fellow academics. Lawmakers and other political types do not spend their days reading law review articles. They hardly even read laws. At the end of the day, law review articles would have the exact same impact if they were about the theoretical effects of blood doping by Jedi knights.
If midichlorians live in your blood, and the concentration of these microorganisms determines one’s potential to use the Force, wouldn’t blood doping easily make a Jedi two or maybe ten times more powerful?
While many law review articles are about as relevant as an article on Jedi blood doping would be, there are of course a few that really do speak to issues that are presently of public interest. But, even these are relegated to obscurity.
The reason is primarily the terrible writing style that is demanded of professors. There is no brilliant insight that you’ve had which cannot be fully explained in 6 pages or less. You will of course need evidence to back it up, and to more fully address the finer points of your argument and your responses to possible objections. But that gets us to where? 12 pages? 15 maybe? Your garden variety law review article runs in the neighborhood of 40-60 pages.
To get to that size, articles become verbose, explaining concepts in the least understandable way, peppering in anecdotes that do not advance the argument, and dropping in block quotes like the article is a game of Tetris.
Consider a recent article by Benjamin Sachs, published in the Harvard Law Review, Despite Preemption: Making Labor Law in Cities and States. The article is a discussion about federal preemption, the National Labor Relations Act, and state and local employment laws. It is a whopping 72 pages in length.
The Structural Safeguards of Federal Jurisdiction by Tara Leigh Grove, also recently published in the Harvard Law Review, discusses Congress’s power to limit federal appellate jurisdiction, and likewise comes in at 72 pages.
By comparison, John Nash’s doctoral thesis, which laid out the theory now known as the Nash Equilibrium, was only 28 pages in length.
James Rachels’s Elements of Moral Philosophy, one of the top selling books on ethics, and a perennial favorite for ethics classes, covers numerous issues including abortion, racism, euthanasia, vegetarianism, egoism, poverty, and the death penalty in a slim 193 pages.
Federalist No. 10, the famous discussion about factions and political parties, weighs in at only 10 pages.
The problem with the cumbersome size of law review articles is not just that it discourages the population at large from ever reading them. It also makes them less accessible to even interested parties. People who are genuinely interested in what the professor has to say on this particular topic may still find the article absolutely useless.
This is not to argue that professors ought to dumb down their ideas. Instead, we assert only that the current writing style does not make the discourse any more intelligent than shorter, plain language, easily digestible articles. Writing in a scholarly manner is not the same as writing in an intelligent manner, or an effective one.
The style of legal writing might be overlooked if law reviews were reliably publishing brilliant ideas. Every year, there are probably a handful of articles that would be worthwhile for the average person, or at least the average lawyer, to read. You will never hear about them though. They are lost among the thousands of other articles published each year.
Yes, thousands. Harvard alone has 17 different journals. Yale has 9. Stanford has 10. That’s 36 journals just from HYS. The Top 10 schools have a combined 101 journals.
Consider that there are 200 law schools, each with not just its own law review, but other specialized journals as well (and sometimes a secondary general journal) and the number of articles published every year is on its face indefensible. If you are one of the few professors who wrote something really important, good luck having anyone pick it out from the 10,000+ other articles that were also published that year.
Or, to put it more succinctly: CHECK YOU SIGNAL TO NOISE RATIO!
The articles to be published in legal journals are typically selected by a committee of third year law students, though there are a few faculty reviewed journals. The students might be completely brilliant, but they are still just students. Their substantive knowledge is lacking. Remember, professors are only attempting to teach them how to think like a lawyer during law school, substantive legal education is years down the line.
The students’ lack of knowledge and experience is compounded by the cumbersome style of legal writing. Your typical journal may publish 10-12 articles per year. Multiply that by 50 pages per article, and you’ve just given the 3L staff members a pretty hefty reading load.
Then consider that for each article that is published, there may be 10 or more that are rejected, and what you have is an unmanageable sea of paper. Not all articles will be read by every staff member, and many will be rejected outright due to an exceedingly bad topic choice, or very poor writing style. But, even narrowing it down to 3 choices for each spot creates a huge workload. 30 articles, 50 pages long, and you’re going to have to read them two or three times to really give them a fair shake.
Also, you’re a student with reading for classes and your own writing to work on.
Once articles are selected, then enters the army of 2L staff members for cite checking. Many students will focus solely on the citation format, making sure it is BlueBook compliant, in an attempt to blow through their assignment in time for happy hour.
Few students will be meticulous in checking the substance of the citation. That is, whether the cited text is on point and supports the claim for which it is offered. If you get bored one day, try checking the citations to an article yourself (only recommended if you’re a student with free West and Lexis access). See how long it takes you to find a citation that is either unsupported by the cited text (that is, the text isn’t quite on point), or actually contradicted. We estimate it should take you no more than an hour to find a bad footnote. Even less time to find a claim that’s questionable yet unsubstantiated (it took us about 3 minutes, on the second page of the first article we looked at).
Few students will speak up if they find a problem, weighing the cost (possibly a lot of time and hassle) and benefits (nothing). If a concern is raised, it must then be lucky enough to fall on the ears of a 3L who has enough time to look into it, and if necessary, contact the professor who wrote the article.
At the beginning of this piece, we claimed that the system wide failure of legal academic writing has had a significant negative impact on a lot of people, a claim that obviously needs a little backing up. It’s easy to see how the journals might be worthless, but harmful?
Consider how much time professors spend writing these articles. A single professor earning $240,000 a year, and who spends a third of his time on research and writing, is essentially paid $80,000 a year to write. Divided up over a school of 1000 students, and that’s $80 per student per year. A drop in the bucket when compared to the total $100,000 in tuition the student pays. But, when you look at the number of professors earning large pay checks and spending a great deal of time writing, the cost to the student really adds up.
Consider the University of Michigan. The school has 12 faculty members earning over $500,000, another 37 earning between $250,000 and $500,000, 49 earning between $150,000 and $250,000, and more still below that mark. If a third of their time is spent on writing, combined they cost each student about $10,000 a year. Combining all the students, the school is spending over $10,000,000 per year on legal writing. Granted, Michigan is one of the bigger spenders when it comes to faculty compensation, but there’s another 200 law schools out there.
Law professors will point to some of the grants and other sources of revenue their articles bring in, but the fact of the matter is they’re not bringing in $10 million a year in grants. Not just Michigan; it would be shocking if the entire legal academic universe pulled in $10 million grants for research and writing. The vast majority of the school’s revenue is from tuition dollars, paid for by non-dischargeable loans taken out by students.
Students are not only left to bear these giant debt loads which can send them into a quality of life far worse than what they enjoyed before law school, but they also greatly limit a graduate’s ability to pursue the sort of job they want. Graduates are criticized for complaining about a lack of top paying jobs, but when you owe $1,500 a month to your lender, $60,000 a year just won’t cut it.
Why is so much money being poured down the legal writing drain? The answer is quite simply prestige. Professors are allowed to dedicate a large amount of their time to writing because it advances not only their own careers, but also the prestige of the professor’s school.
That explains the supply side of the equation, why professors are so eager to be published, but not the demand side, why so many articles are published each year. We think there two explanations.
First, having more journals can increase the prestige of the school. Expanding a school’s law review to publish 10 times as many articles would undoubtedly hurt the journal’s reputation, as it would be seen as not selective enough. But, creating 10 new journals, each which only publishes 1-3 articles per issue does not have the same effect.
In fact, it should have the opposite effect. A specialized journal in technology, or feminism, or environmental law, will increase a school’s reputation among professors in that field. A professor writing an article on environmental law might be hesitant to submit to a journal that will publish 15 other articles alongside his in the same issue. But, with the journals separated, he will be happy seeing that he shares space with only one other article in the Whoever University Environmental Law Journal, and will ignore the fact that 15 other articles were published that month in other journals from the same school.
The second way having a multitude of journals helps a school is by pumping up the resumes of its students. If each of Harvard’s journals accepts 20 second year students onto its staff, over half of the students will find a place on a journal, and get that shiny line on their resume.
When a potential employer looks at a resume, they will feel impressed to a certain degree by seeing “Editor in Chief, Harvard Journal of Law and Technology.” It is unlikely they will ask the student how many other students at the school held the title of Editor in Chief (16). Little things like that can make a big difference when it comes to applying for jobs, judicial clerkships, or academic positions.
Consider that the single most important factor in law school rankings is the opinions of law professors (25% of the total score), and it’s easy to see why schools are willing to engage in a sort of journalistic arms race. Get your professors published more, and publish more other professors to win their votes.
The aid to the students is slightly more defensible. The benefit of having one extra student named Editor may more than offset the harm to others by diluting the title. But, the students would be even better served by graduating with significantly reduced debt burdens, or with the same debt load, but with professors who spent less time trying to get published, and more time educating their students. Perhaps start with substantive written feedback to every student in every class. It’s a lot of work, but so is putting together a journal article. And, at least with feedback on an exam, you know that someone is going to read it.