Thanks to a Joint Statement by Top Law Journals, Law Review Articles Will Get Shorter, But Will They Get Better?
By MICHAEL C. DORF
|Monday, Feb. 28, 2005|
Eleven of the most selective American law journals recently issued a joint statement proclaiming that, in response to a Harvard Law Review survey of nearly 800 professors, the editors of the respective journals would henceforth give preference to shorter articles. "The length of articles has become excessive," the professors said. "Shorter articles," they opined, "would enhance the quality of legal scholarship, shorten and improve the editing process, and render articles more effective and easier to read."
The new policy may be a step in the right direction, but there is reason to think that it will not produce all of the benefits its proponents seek. That is because the growth in article length in the first place was not driven primarily by the demands of the law reviews. Rather, it was mainly a supply-side phenomenon--driven by the efforts of the professors writing the articles to make their work comprehensible both to the novice student editors who select which articles to publish and the undifferentiated mass of their colleagues who make tenure decisions.
Restricting article length without addressing the factors that caused articles to grow longer may thus have unwanted consequences. Professors won't stop catering to law student journal editors, but now they will feel compelled to do so in briefer pieces. And as I explain below, that part of the law review article that will, as a result, get short shrift, may be the most valuable part of all.
The State of Law Review Scholarship
Readers of FindLaw's Writ and other general-interest publications about the law should not be misled by the law journals' statement. Even after the policy change, it will not be possible to read the average law review article during your coffee break. The new policy will shorten articles to an average of 40-70 book-style printed pages. They will remain very long by the standards of popular publications, and even those of other academic disciplines.
But 40-70 pages is still a dramatic reduction from 70-100 pages or longer, the range that marks the current state of law review publishing. (Confession: I once published an article in the Columbia Law Review that was over 200 pages long. Mea culpa.)
Because the eleven signatories to the new policy include the very top law reviews, the "demand-side" solution is likely to have its primary intended effect. Professors who hope to publish their work in the top journals will write shorter pieces. As a result, even those journals that have not signed onto the policy will be faced with a supply of shorter articles from which to select.
But will shorter articles necessarily be better? That depends on what happens with respect to the trends that caused the lengthening of articles in the first place.
Why Did Articles Grow Longer? The First Culprit: The "Tenure Piece"
As recently as the late 1980s, when I was a law student, a law faculty member was commonly granted tenure based on the writing of a "tenure piece," a single work of legal scholarship that was expected to demonstrate the author's command of the relevant literature and make an important contribution to our collective understanding of the law. Because so much was riding on the tenure piece, its author took few chances--larding it up with innumerable footnotes and tangential discussions of prior work in the field in order to demonstrate his or her erudition.
Even in the old days, tenure pieces were excessively long, but they accounted for a small fraction of what appeared in the law reviews. That's because more senior scholars, having been granted tenure, felt liberated to write shorter works that got to the point more expeditiously. Meanwhile, some law professors--this group hardly deserves the name scholars--were so exhausted by the experience of producing the tenure piece that they effectively gave up on legal scholarship entirely, concentrating on their teaching and other endeavors.
The Second Culprit: Stricter Quantitative Standards for Tenure
At some point in the last two decades, however, university administrators discovered that the legal professoriate was a racket. Law professors earned higher salaries than their colleagues in most other departments (ostensibly to compensate for the fact that law professors, as lawyers, had lucrative private sector alternatives, while faculty in the arts and sciences typically did not); meanwhile, they produced less scholarship. To stave off battles with the universities to which they belonged--or in some instances, as a result of such battles--the law schools ratcheted up their tenure standards.
Thus, when I entered the legal academy in 1992, I was told by my senior colleagues that I would need to produce at least three substantial articles for tenure. What counted as a "substantial" article? No one quite knew, but because untenured faculty members are risk-averse, they tended to produce three or more versions of the old tenure piece. The net result was that tenure pieces went from being the exception to being the rule.
Partly through force of habit, faculty of my generation and younger continued to produce long articles even after we received tenure. No longer seeing the "tenure piece" as an anomalous hazing ritual, we came to understand it as the norm for legal scholarship. Thus, over the last generation, long articles crowded out short ones.
Indeed, by now the phenomenon has a life of its own. Today's entry-level legal academics are the law review editors of a few years ago, who learned while serving in their earlier capacity that a law review article should be at least 80 to 100 printed pages.
The Third Culprit: Student Selection of Articles
Against this backdrop, the new policy of the law journals looks like a brilliant intervention. The basic idea is a good one: If the top journals won't accept long articles, then young and old scholars alike--eager to publish their work in those top journals--will write shorter articles.
That assumption will likely prove accurate, but it won't necessarily lead to all the other results that the journals and the professoriate alike seek. The reason is that long articles are also the product of another phenomenon: In law, unlike in nearly every other field of scholarly endeavor, the top American journals are student-run, rather than peer-reviewed.
Each of the journals that issued the joint statement receives hundreds of manuscripts each year, and each uses a committee of student editors to decide which ones to publish. Occasionally, some of these journals will ask a faculty member of their own or another school for advice on whether to accept an article, but frequently they do not, and even when they do, they are under no obligation to accept the professor's advice. Moreover, they only seek such advice after the article in question has made the first or second cut in the selection process.
The students who edit the nation's top journals are smart and hardworking, but having had less than three years of exposure to the law, they lack the depth of knowledge necessary to discern which of the apparently well-crafted articles submitted for publication contain important original insights and which merely repackage old ideas. Consequently, faculty members who are hoping that the student editors will like what they submit must devote some considerable portion of each article to spelling out background matters that someone already familiar with the field would find unnecessary.
This is especially true in highly technical fields like bankruptcy and tax law. Many of the student editors will not even have taken the introductory elective course in the field. Unless the author includes extensive background material covering basic points, he or she runs the risk that the student editors will not even understand what the article says, much less be able to tell whether it says something insightful and original.
Accordingly, some substantial portion of the current excessive length of law review articles owes to the need to write them in a way that non-specialists can appreciate. So long as relatively ignorant students select articles for publication, cutting the articles roughly in half will not result in the elimination of the background sections of the articles. More likely, it will result in each article retaining such sections, but making fewer original analytical points. Cutting length will frequently result in cutting quality as well.
The Fourth Culprit: Lack of Specialization on Law Faculties
Law review articles now contain extensive background material for another reason: Again, unlike in most other academic fields, in law schools, tenure decisions are made by non-specialists. Scholars who concentrate on criminal law make tenure decisions about scholars writing about patents, and vice-versa. Thus, the junior patent scholar must write an article that explains its relevance to the larger field not only to the student editors of the law review, but also to those among her colleagues who never studied or practiced patent law.
To be sure, most law schools now make tenure decisions assisted by outside evaluative letters from scholars in the tenure candidate's field. That process slightly relieves the pressure to go over the basics, but it also exacerbates the length problem in a different way. Knowing that her work will eventually be evaluated by an unknown sample of senior scholars in the field, the untenured professor will try hard to include in her own articles a respectful discussion and citation of all those senior scholars, lest she inadvertently slight someone who controls her fate at tenure time.
Here, too, the new policy of the law reviews does nothing to alleviate the young scholar's need to devote much of her pre-tenure articles to demonstrating her scholarly bona fides at the expense of making original arguments.
The likely result of a shorter length limit will thus, once again, simply be to cut down on the space available in each paper for original analysis. The baby will shrink without even a commensurate reduction in the quantity of bath water.
Law Professor, Heal Thyself: A Complement to the Law Journals' Statement
In sum, the law journals alone cannot improve the quality of legal scholarship by making it shorter. But that does not mean their statement is unwise or futile. Indeed, their step in that direction would work wonders if complemented by greater reliance on outside experts in the selection of articles for publication and by the law schools' own rethinking of tenure standards and procedures.
Just as physicists do not make unaided judgments about the merits of the work of botanists, so perhaps the time has come for law professors to give in to specialization--at least for making tenure decisions.
What will be lost is considerable, for part of what makes the study of law so attractive is that it intersects with so many other areas of human endeavor. But the undifferentiated law faculty is already a relic of a bygone era in which law was understood as nothing but an autonomous discipline. Over time, we have come to recognize the law as, instead, a site in which knowledge from a variety of fields--economics, history, moral philosophy, linguistics, and so on--is brought to bear on complex social and organizational problems. Our tenure process ought to reflect that reality.
One thing that will not be lost by a tenure process that recognizes the role of specialization is contact with the legal profession. Already, judges and practicing lawyers rarely turn to law journal articles anymore for insights into the problems they face, and not because the law review articles are too long.
The disconnect between academics and practitioners arises from their increasingly divergent missions. Not all that long ago, nearly all legal academics saw their role as that of a kind of shadow judiciary. Freed from the burden of deciding numerous concrete cases, legal academics could engage with questions of legal doctrine on a larger scale than judges, but, in their view, the questions they addressed were not qualitatively distinct. Judges and professors alike asked: How best should cases be decided?
There is still a place for such "doctrinal" scholarship, especially if done well, but increasingly, legal academics now see their role differently. As we have moved closer to the rest of the university and farther away from the world of legal practice, legal academics have come to ask different questions. For many, the academic study of law is now (in the words of the late legal philosopher H.L.A. Hart) "external" to the practice of law. Thus, the new kind of legal academic is no more interested in telling judges how to decide cases than the entomologist thinks she should tell ants how to build an anthill.
That is not to say that modern legal scholarship has no implications for how legal actors--judges, legislators, lawyers, and others--should behave, for human beings are not pismires. Legal scholarship showing that a statute or judicially crafted rule is inefficient, or that it is the product of a sexist past, or that is has perverse consequences in practice, can serve as a goad to changes in the law.
Moreover, in a democracy, the law should be comprehensible to the great mass of the public, and so law professors perform a vital public service by translating the intricacies of legal scholarship into terms that make sense to those without advanced training. But just as we shouldn't expect climatologists studying global warming to publish all of their most important findings in journals accessible to everyone, so we should not expect law professors to reinvent the wheel with every article they publish.
Until the legal professoriate accepts in its tenure practices that ours is a field of specialized and sub-specialized expertise, making law review articles shorter probably will not make them much better.