Thursday, February 1, 2018

A Game of Law Reviews

The candidates review their chances of being published in Braavos Law Review - what will the Essos News & World Report rankings show?  Stay tuned...!

I was not on law review - I didn't even try to write-on. 

"Why of course, that is why you are a scamblogging los3r rather than a models-and-bottles LawProf, yo," I hear some say. 

In some respects I'm guilty as charged, though that is not the point.  I agree that research and scholarly writing is the bread-and-butter of academia, and is the work product that hopefully drives other changes and advances in society. 
I did have to do a legal writing class in lieu of being on law review - I don't recall what it was about that much, but I remember thinking "hey, I did a decent job."  We also had to do a presentation based on our work, not unlike a seminar.  At the end, my legal writing professor complemented me on my work product, and said those oh-so-fateful words with twinkles in her eyes while looking off to the far horizon, as if a golden opportunity had just materialized:
"You should try to get this published!!!" 
Really?  I mean, thanks, I appreciate what you are trying to say and all, but come on.  This is not a barn-burner, nor is it introducing some supremely novel idea.  I was a law STUDENT, after all, at the time.  And this is not some sense of false-humility...the legal world will roll on, with or without my grand contribution.  I mean, really.
But then I recalled - what else do the majority of LawProfs do besides "teach?"  Publish.  Riiight...that is what it is all about.  Raises, promotions, preftige - all of it - based on how much you write, who blesses it, and how widely read it is, who invites you to speak about it, etc. etc. etc.
Yep, not my kind of game.  Major advances in a field do not come with production-line regularity on a semi-yearly basis, at least in my book.  But then again, my prior experience was in the engineering world, where you may only publish something after years and years of research, experimentation, and analysis. 
The real-world counterpart to LawProfs would be folks like Michael Cicchini, who is a full-time practicing attorney who also enjoys academic writing on the side.  His interest in law reviews comes down to the nuts-and-bolts of practice, and I find his view illuminating:

I’m convinced that law professor misbehavior is driven by the group’s rather unhealthy obsession with rank and prestige.  More specifically, many law profs have never practiced law, and most of those who have practiced have done so for very short periods of time...[w]ithout any law practice experience to draw upon, this leaves the law profs to judge each other by the U.S. News ranking of their law schools and of the law journals in which they publish.

And then there’s the profs’ law review publishing ploys.  I recently wrote this essay explaining several tactics that law profs use to maximize the prestige of their article placements.  These tricks include fabricating offers out of whole cloth in order to request expedited reviews from journals, fudging the terms of their otherwise legitimate offers when expediting to “better” journals, and submitting articles to low-ranked journals (where the profs would never, under any circumstances, actually agree to publish) just to get that first offer and jump into the expedite game.  

But since publishing that essay, I have become aware of an additional law prof trick.  As Ryan Scoville writes, when submitting their articles to law journals, some profs will “insert exaggerated claims of novelty or significance into their submission to student editors and then, after securing a satisfactory offer of publication, moderate those claims in drafts made available to colleagues and the public. By doing so, the authors manage to improve their chances at a desirable placement and avoid unscholarly claims before peers.”

While this, sadly, surprises no one, it is still further evidence of the game that Law School is, and it's important to know what it is all actually about, instead of the "defending liberty, pursuing justice" propaganda most in the Cartel promulgate.  When all that matters is money and preftige, student outcomes take a far, far back seat.  Those open road narratives don't come cheaply, and somebody's got to pay for it - although, it's interesting that practicing attorneys like Cicchini manage to do that without requiring young people to sign student loans over in order to do so.

Take a look at Cicchini's offerings - it's an example of what legal scholarship could actually be, once the power and politics of legal education are stripped away.



  1. OK. . .speaking as a practicing lawyer with decades of experience. . .Law Reviews are the law-school equivalent of a high school newspaper. It is deeply sad to me, as an attorney, that so much stock is given to student publications, and that lawyers and judges sometimes research and rely upon things written by 2nd year law students. Law Reviews are not peer-reviewed journals (like the Journal of the American Medical Association, JAMA). They are student-reviewed journals, just like a high-school newspapers. I avoid them and would feel like an idiot arguing before a judge based on something written or edited by a student, not an actual lawyer.

  2. I am a fan of Mr. Cicchini's work as well. The childish status-seeking article-placement games that he describes so well are unworthy of true scholars. Of course, most law professors are hardly that-- rather, just massively over-compensated dilettantes whose non-peer-reviewed articles are roundly ignored by bench and bar and scorned by non-law scholars.

    While I do not support adjunctification in higher education generally, I think it could only improve the scam-like institution known as law school. The need for practical legal scholarship can be satisfied by offering grants and fellowships to practitioners of a scholarly bent. Theoretical and interdisciplinary stuff can be done by true experts in the liberal arts and social sciences.

  3. Well, Old Guy was on the flagship law review at his élite school. He does not regard that as a great achievement or a meaningful contribution to the field of law.

  4. One of my favorite bits from the article:

    "For a more relevant example, consider this: some law journals often
    receive more than one thousand submissions to fill only a few publication slots. Many journal editors, understandably, don’t take the time to respond with a rejection email to each and every professor who submits an article. But professors know full well that when they don’t receive the nice thank-you-for submitting email, a journal’s failure to respond means it is not interested in
    publishing the article. (Once again, the prom analogy is helpful: when your first choice for the dance won’t respond to you, the answer is “no.”)

    Nonetheless, although some professors complain about receiving the
    impersonal, standard rejection email, others complain when they don’t receive one. Some even contend, rather ironically, that the failure to send a rejection email is evidence of the students’ “solipsistic narcissism” and constitutes unethical behavior. One professor even hinted at potentially blackballing the
    student editors down the road.

    The discussion began with a complaint that “Harvard used to be a prompt and reliable reject, but has been a non-responder in the last couple of seasons.” One professor suggested they could obtain the much desired rejection emails from Harvard and other schools “by simply sending e-mails to any journal that has not responded to us. That way, they will desire to send rejections simply to avoid being swamped by e-mails. Just my 2-cents.” That advice certainly isn’t worth “2-cents,” but it likely wouldn’t cause
    the student editors any serious harm, either. So another professor ramped it up a level: “if enough submitters make it known that editors who don’t act professionally enough may have it held against them in the future (e.g., VAP
    hiring decisions), that might scare them into doing their job.”"

    Ah, lawprofs: narcissism, idle threats, butthurt. Certainly the professional standards everyone should desire to emulate.

    1. The same profe$$ors who are bitching about not receiving a personal notice of rejection submit their scholarshit through a completely impersonal junk-mail service called ExpressO that sends it out en masse to scores, if not hundreds, of law reviews.

      What they really want is not a notice of rejection but a notice of acceptance of their hackademic bullshit about neo-Rawlsian narratives on the million-dollar intersectionality of hip-hop and the Open Road™.

      And they're projecting their own "solipsistic narcissism" onto others. (Someone identified herself to Bertrand Russell as a solipsist and expressed her surprise that few other people shared her view…)

  5. Let me speak up in favor of Law Journals. I never cite a Law Review article itself in a Brief or in Court, but I do occassionally use them as a basic research tool... because they all provide the source documents to support their opinions, and so they can be a good resource. Also, I am a trial lawyer...not an appellate lawyer, but I have handled at least ten appeals on my own, including arguing in Court (usually I retain appellate counsel for worthwhile cases), and I am usually impressed by the writing of most appellate attorneys. They obviously learned their craft in Law School. In the end, I am hopeful it is the cogent argument and not the writing style and blue book style citations that wins the day... but you never know what an appellate judge is going to hang their hat on.

    1. Exactly...that's why the work product of folks like Cicchini is useful. And some lawprofs' work as well, I'm sure.

      The problem is the narcissistic puff-pieces being written on the back of student debtors, and the way the academy games publishing like a murder of crows circling in...all hail prestige.

    2. Why do you think that someone who writes good appellate submissions necessarily learned the craft in law school? My own legal and non-legal writing enjoys the praise of bench and bar, but law school didn't teach me anything about writing.

  6. I was on a worthless toilet law school law review. The scholarship I edited was very poor and was of no practical value to practitioners, the courts, or policymakers. The professor mentioned in the last post, who bragged about spending a year writing about one sentence from a SCOTUS dissent pretty much sums up legal scholarship: “I will write an amusing article of no particular consequence [in order to improve my rank and prestige].” The professors wasted my time and they ignored the plight of real lawyers, such as the public defender discussed in the last post.

    Scholarship has taken on a new meaning for me since entering medicine. Research is conducted to help patients. The results speak for themselves. Thanks to research advances in pediatric oncology, about 80% of children diagnosed with cancer will go into remission and have long lives. Unfortunately, some childhood cancers have a much worse prognosis. But researchers and doctors are putting in the work to improve cancer remission rates. And they are working to reduce the awful side effects of radiation and chemo. Chemo is a pretty blunt tool to kill cancer cells. The mechanism of action of most chemo drugs is to kill rapidly dividing cells, like cancer cells. But then these drugs harm other cells that divide rapidly, like the cells involved in hair growth which leads to hair loss. Or the drugs harm the cells in the bone marrow that eventually become immune cells, so the patient is vulnerable to infection. So now researchers are developing more targeted therapies, like immunotherapy. Researchers have taken a cancer patient’s immune cells, and reprogrammed them to kill the cancer cells. Medical research goes beyond discovering cures. Researchers also investigate better ways to diagnose disease and preventative strategies.

    Legal scholarship could follow the path of medical research and produce something useful for practitioners and society. But the goals of medical schools and law schools are much different. Medical school professors with MDs still practice medicine. They treat patients, teach students, and research. The goal of medical schools is to train future doctors and benefit society through teaching hospitals and research. Along the lines of what Michael Cicchini wrote, contrast medical schools with law schools. For years, law schools were operated to kick back student loan dollars to the main university. To increase revenue, schools became obsessed with prestige. The schools sought professors with “elite” credentials, not for the benefit of teaching students, but to improve rankings. These professors were hired so they could use their Harvard JD to get published in worthless law reviews. Nobody cared what the professor wrote, all they cared about was getting published. From what we have seen in recent years, law schools are unlikely to reform. The schools care more about student loan dollars than they do about benefiting society.

  7. Allow me to explain the process of submitting articles to law reviews. Let's assume that Professor Wrong (Wreong in the old country) has just excreted a piece of scholarshit about racial oppression allegedly arising from self-prostitution at Web sites along the Open Road™.

    Wrong goes to ExpressO on the Internet and sends her farticle to a hundred law reviews, maybe more. (ExpressO charges a fee for each law review selected, but Wrong's law school will pay it.) Of course she wants Harvard, like everyone else. And of course she's not going to get it. But she schemes for the most "prestigious" law review that she can wangle.

    A toilet law review, desperate for anything to publish, quickly accepts Wrong's scholarshit. Does she send them a polite letter gratefully accepting the kind offer? Hell, no: she ignores them but rushes back to ExpressO in order to dangle the offer in front of more "prestigious" law reviews and demand "express" consideration on account of it. Some of them yield to the petulant demand and drop everything to evaluate her article, only to see her ignore them when they accept it and use their offer of publication to secure "express" consideration from a journal farther up the "prestige" hierarchy.

    Thus perhaps a few dozen students working unpaid for various law reviews will have their time wasted on reviewing Wrong's scholarshit. Does she care? Of course not! She doesn't even think of them; she's far too busy counting her money and planning her next costly package tour to Kenya or Palau. Yet she happily bitches about their "solipsistic narcissism" and threatens them with "blackballing". How dare they not bow and scrape before her august personage?

    Prestige, of course, cuts both ways. The handful of coveted law reviews—Harvard's, Yale's, a couple of others—are so swamped with submissions that they fall back on the "prestige" of the author. Rather than assessing the submission itself, they assess the author's CV.

    Toilet schools' law reviews, by contrast, have to take what they can get, because anyone who can get into a publication above the likes of the WMU-Cooley Law Review will do so.

    And articles are selected for publication by people with little more than one year of law school to recommend them. Admittedly the students on law review tend to be among the best that their school has attracted. But that isn't saying much even at a Notre Dame, never mind a Cooley.

    Does that sound like a great process for the scholarly advancement of the legal profession?

  8. While the law review system might not be perfect -- I say "might not" because I really like most things about law reviews -- I think it's the best system out there. (It's important to distinguish, I think, between law review operations, on the one hand, and the types of articles professors often publish, on the other.)

    First, here's a nice defense of student edited law review as opposed to peer review, for anyone who wants to read it. It's short and worth the read:

    Second, law isn't medicine or science. Rather, it typically involves argument. In most cases, 3Ls are capable of reviewing a law article just as effectively as a professor would be. (Many profs haven't practiced law anyway, so they're essentially a 3L + a clerkship.)

    Third, with regard to empirical-type articles, peer review is often overrated. Peer review doesn't replicate the study. (This is true whether it's a psych journal, for example, or a law review -- some law reviews ARE peer reviewed, by the by.) Rather, it's just a solicitation of comments before the article is accepted for publication. Some peer comments are useful; however, in my experience with peer-reviewed journals, many are nonsensical and some are just wrong. (There's no reason to assume that a peer reviewer knows more than the author, and often it's obvious that they don't.)

    Finally, getting back to law reviews, I often find student written articles are more useful than law prof written articles. Students tend to be more interested in useful topics, and they are far more likely to consult with practicing lawyers (when writing articles) than are law profs. It's true there's a lot of junk in the law reviews, but given that we are able to search for articles via search engines rather than by combing through hard copies of journals, it's easy to ignore what we don't want. So I've never viewed the huge number of "useless" articles as a reason to ignore law reviews as a source of information or argument.

    In short, I don't think the problem is law reviews. I think the problem is that many profs get paid a lot of money to write things that don't benefit anyone but themselves. And sometimes their articles don't even do that. Check out OTLSS's recent post about the Kentucky prof. If that twitter post is accurate, he actually admitted that he will write an "amusing article of no particular consequence" based on his year-long study of one sentence in a dissent. I don't like that one bit.

  9. To be honest, the law review stuff is all a waste of time. Real lawyers practice law, not write law scholarship

    I wasn't on law review. I wasn't even eligible to grade on as my GPA after my 1st illustrious year of my great legal academic career was below the threshold.

    Nonetheless, I passed the bar exam. I also did something all the other law review kids didn't do.

    I went to the strip club the first day of the state portion of the test. I fell asleep after I returned home from the strip club and I turned in my exam late. It did not matter.

    The second day I took the MBE. My cumulative score in my respective score was good enough to pass and now I am a certified lawyer in good standing. No one at law review at my school turned in their thing late and passed the Bar Exam. I did.

    I'm thinking about selling the rights of this story to have a book/published.

    1. Did you just get back from a strip club when you wrote this incoherent post at 2:55 AM?

    2. Yes lol. My real dream in life (other than being a journalist like Paul Campos) is to own 10 strip clubs.

  10. Number of papers published provides an easily metric to assess the productivity of academics. It seems to be the primary metric for law professors. This is dumb. The market for useful legal articles is probably quite small. Most law professors should ideally rarely publish, and focus almost exclusively on teaching and administration. But then that would mean having to acknowledge they are primarily teachers of a trade rather than prestigious academics.

  11. Duped:

    Your experience in law school was exactly the same as mine.
    I had to write a paper on the best mode requirement of patent law. So I vomited up a bunch of rehashed ideas, tried to make it semi-coherent, and sent it in to the professor. She said that I should try to get it published.

    Now let me be clear. There was not a single original idea in my paper, and I think that's the case with about 99% of law review articles. Thankfully I dismissed the good professor and went about my business.