April 20, 2005

Anonymous: If You're Going to Join Law Review, Know What You're Getting Into (Part III of V)

by Guest Contributor

Accreditation and Employment
First and foremost, the journals are accreditation tools. For professors, they serve to accredit scholarly work, the idea being that "better" articles are accepted by "better" reviews. Prof. Gordon Smith gives a good explanation of both the system and its ethical consequences at The Conglomerate. Meanwhile, his Conglomerate co-author Christine Hurt summarizes nicely the various forms of student accreditation in an early piece in this Symposium. Having law review on your resume is a proxy for good legal writing (or at least a means to write a Note), academic achievement, and showing potential employers that you "do not view all projects through a cost-benefit lens." Professor Hurt has much more experience in such things than I do, and I'm wary of disagreeing with her as to how important such things are to employers, judges, and legal academia.

Nevertheless, while I'm not as dubious about the practical merit of this qualification as my fellow Anonymous contributor ("I concede that getting onto law review is a great way to show future employers a willingness to bring your skull repeatedly against the loo if they demand it"), I remain skeptical of the credential as a practical matter. Let's put it this way: if you do view all employment opportunities through a cost-benefit lense, then your law review credential is essentially lying for you, a lie you're not going to be able to maintain. If you don't, then within the first two years of your first job, you're going to be able to demonstrate that you'll go the extra mile for your firm even without law review. If you play your cards right, you're not going to need to fall back on the credential in later jobs: you'll be able to fall back on achievement. I truly hope that when I come to my second firm interview, I've got a better story to tell than law review.

But importantly, accepting Professor Hurt's thesis, look at what it says about the job: for the credential to work, it must fail--significantly fail--any rational cost-benefit analysis. Otherwise it's not sending the needed message: in Professor Hurt's terms, it doesn't show law reviewers to be "Type A." Along with the zero-cost nature of staff time, this conception of accreditation is not merely the compensation for frustration, but the source of much of it.

A law review could benefit from having -- rather than undifferentiated staff members -- a few people with some very specific skills: resource and project management skills, prior editorial experience, or whatever technical requirements the review has. But most reviews won't hire with those skills in mind: deviate from the write-on, and you're admitting to employers that you don't choose based upon the Elite.

For instance, I remember a committee discussion regarding implementing a standard technology platform across the review. Transferring half a decade of hodge-podged systems to a common platform would not only have saved time, but had the potential to save everyone hundreds of hours. (Did you know that many library databases will provide XML and web services useful on law review intranets?) Even if we hadn't worked miracles, at least we wouldn't be supporting half a dozen platforms that no one really understood anymore.

During this conversation, someone said, "Of course, the problem is that if we don't have a staff member with these skills next year, we can't do anything." To someone who'd hired staff in businesses, this question seemed nonsensical. "The odds of a 1L class not having a single PHP programmer seems remote," I said. To which he replied, "Yes, but what if he doesn't make it past the write-on?"

Hold your breath: here I started talking crazy-talk. "Well, we can just ask for resumes. We know we need someone who can keep the system running, and we just make sure we pick him or her up." From the reaction I received, you'd have thought that a cardinal just recommended elevating Dr. Ruth to the papacy.

The diminution of credential value, from letting it be known that someone was accepted for a skill beyond grades and write-on, was not worth any possible gain. Spending less time on administrivia, spending more time on adding substantial editorial value to our articles -- these needs could not stand up to the importance of making sure that the law review remained the domain of an "elite." There's some sense to this. If the credential is the driving force that allows major reviews to get students to donate time, then diluting it may not pay off. But when you're considering whether to apply, make sure this consideration is enough. In my experience, it trumps higher ideals.

Contribution to Legal Scholarship
Before you accuse me of being too cynical (I'll leave that to the other Anonymous), though a law review's pre-eminent purpose may be accreditation, that's certainly not the only one. While some are skeptical of the role of student-run journals in legal academia, don't despair of your work contributing to legal knowledge. Whatever else I'd say about my time this year, I know I was working with fellow students, and across a community extending across law schools and even academia generally, to expand scholarship in a meaningful way. That counts for something.

There are voices--very prominent ones--who would disagree. I've already mentioned Judge Posner's famous complaint regarding student-edited reviews. His criticism was picked up by others, including Professor Brian Leiter of the University of Texas Law School, who was even more strident in his attack. ("In fact, as everyone knows, the majority of the articles that the Yale Law Journal and Harvard Law Review publish in a given year are intellectually worthless.") According to this school of thought, law reviews aren't staffed by seasoned professional editors or those with "pertinent disciplinary expertise," a lack that results in weak scholarship faddish or trend-oriented subjects, published in (to again quote Prof. Althouse) "[u]npublishable, unreadable books."

These criticisms overstate the case by quite a bit. First of all, the archetypal inexperienced student editor in her mid-20's is no longer a valid stereotype. Not all, or even most, editors of student-run law reviews are academically naive, and often bring to the table skills and experience that improve a piece in the way that few traditionally academic editors can. Just because student editors aren't hired with these skills in mind doesn't mean they don't end up on staff.

One can also say that the inexperience of law students help reviews cater for a dual audience: academics and practitioners. In my research work before law school, I was often stunned by how much a scholarly journal would play "inside baseball": if you were not already an academic expert in the field, articles might very well be impenetrable. Legal scholarship in student reviews, by contrast, tends to be accessible to those who might need a quick introduction to an area outside their field, a key argument for an issue before them, and maybe an attempt to counter the most immediate objections. At least in theory, that's useful to practitioners who don't have time to access an entire library.

But let's assume that you are the stereotype of the early-twenties editor with no experience but an undergraduate degree: your effort isn't for nothing. By participating in this system, you help the 'let a thousand flowers bloom' nature of our discipline that ensures that a large number of scholars can get their work before an audience. Professor Leiter complains that "student-edited law reviews have been crucial for many of the most intellectually insubstantial developments in 'legal scholarship' over the past thirty years," but in contrast, legal scholarship hasn't been stifled by entrenched cliques of established professors. Even assuming that much of the Yale Law Journal is worthless--and I certainly wouldn't say that, having relied on that source among others in my Note--we are in no danger of silence nor lack of argument.

Finally, let me assure you that even the lowest-level staff work, the truly annoying stuff has some purpose. While footnotes grow like weeds in a law review, with some becoming long enough to be mini-essays in themselves, any blogger feels an immediate twinge of recognition when she first starts researching on Lexis or Westlaw. These digressions filled with redundant citations? Footnote after footnote of "see also" and "but see"? These are hyperlinks. And just as hyperlinks are the lifeblood of a blog, they're an important part of scholarship, showing how this flower fits into the rest of the bouquet of related work.

Checking references like this (illustrating how links can seem irrelevant until you add a contextual parenthetical)* may be tedious drudgework. So is checking hyperlinks on a website. Nevertheless, it's a valuable editorial function ensuring that your readers--who may be using this article years down the line--can rely upon the work as a research tool. That may not be much, but it's nothing to scoff at either.

Before applying for a law review, I'd recommend that you read Posner and Leiter's points, but read them critically. There's a lot to be said for the scholarly experience you'll receive and what you'll learn, even if the price is hours in the library. Of course, if this were the main purpose of a law review, life would be better: the Bluebook would be set up to deal with the reality of electronic sources**, law reviews would choose staff on the basis of skills that could reduce the workload for everyone, and some of Posner and Leiter's concerns could be addressed more directly. But so long as you can tolerate the fact that credentials come first--and especially if you enjoy the idea of being able to say you grabbed that brass ring--the contribution to academia might be enough to drive you forward.

Next: Tallying Up the Costs and Benefits

*That's bluebooking humor for you. One dubious benefit of the experience is that you'll understand a whole new realm of tedious in-jokes.

**For instance, why not have a Bluebook standard for electronically-publishing your article and providing metadata that could be used to by others to create aggregate indexes? Or allow third-party software to use such index to create (and automatically check) citations? We could save ourselves a lot of time in the coming years.

April 20, 2005 12:25 PM | TrackBack