Legally Speaking: Love at first cite

There are many problems with legal education, ranging from its costs to its lack of emphasis on the practical skills a school’s graduates will need in the real world to the comparative lack of transparency of many law schools’ placement efforts.

One of the most persistent complaints has to do with legal scholarship, and whether law professors (and the schools themselves) place an inordinate emphasis on publishing scholarly articles in law reviews compared with actual teaching.

No less a figure than the Chief Justice of the U.S. Supreme Court, John G. Roberts, took a potshot at legal scholarship when he said “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18^th-century Bulgaria, or something which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

And the Chief Justice is far from alone in his critiques.  Another member of our highest court, Justice Stephen Breyer, once observed that “There is evidence that law review articles have left terra firma to soar into outer space.”

Law reviews ostensibly exist for two main reasons: to provide academic articles that can guide and influence judges, lawmakers and practitioners and to give student editors valuable editing, research and writing experience (not to mention a credential to add to their resumes).

Yet most law review articles are rarely if ever cited.  In fact, one study demonstrated that 43 percent of the law review articles in the Lexis-Nexis database had never been cited anywhere—not in appellate opinions, not by trial courts, not even in other law review articles.

Despite this, law reviews are proliferating.  According to the Current Index to Legal Periodicals, in 1960, there were 118 law reviews in the United States.  Today, there are over 600.

Georgetown alone has 11 scholarly law journals, while my alma mater, the University of Texas School of Law, has nine.

Each year, over 10,000 articles are published by the nation’s law reviews, the overwhelming majority of which are rarely if ever cited.  Only a tiny fraction will be of practical value to lawyers or influence a court or legislature.  Most will simply pad the resumes of the law professors authoring them. This is nothing new.

Fifty years ago, legal educator Harold Havighurst keenly observed that “Whereas most periodicals are published primarily in order that they may be read, the law reviews are published primarily in order that they may be written.”

For most law professors, publishing is less a tool for influencing judges or lawmakers than a means to professional advancement along the academic ladder in the “publish or perish” world of those seeking tenure.

While appellate courts do cite to law review articles (particularly if they address a growing trend in the law or a split in authority among courts confronting an issue in common), the infrequency of this has led professors to adopt other benchmarks of their own influence.

A kind of pecking order has evolved, with law professors measuring themselves by the prestige of the institution publishing them (a top-ranked law school counts for more than, say, the Western Podunk State Law Review); by whether their work appears in the school’s “flagship” law review as opposed to a “specialty” law journal; and even by the number of pages and citations featured in their articles.  Whether or not the work is well-written and has something timely or meaningful to say seems to be mere afterthoughts.

In addition, most law professors look down upon publishing in “practitioner-oriented” publications like bar journals—despite the fact that such journals almost invariably reach a wider audience (the Texas Bar Journal, for example, has a readership of over 90,000, while the venerated Harvard Law Review had 1,896 subscribers during the 2010–2011 academic year) and therefore have a much better chance of actually being read by lawyers and judges.

Even as a part-time law professor, I have to confess to feeling that little thrill at seeing my work being mentioned.  To date, my writings have been cited in more than three dozen law review articles, from flagship law reviews at top tier schools like the Duke Law Journal to specialty journals like the Rutgers Computer and Technology Law Journal.  Although most of the time I’m cited in the field for which I’m best known (social media and the law, and other Internet-related legal issues), there have been a few surprising recognitions of my work.

A “Legally Speaking” column I wrote about a controversial court decision banning inmate use of the “Dungeons and Dragons” roleplaying game was cited in an article on censorship in prisons appearing in a 2012 issue of the Northwestern Journal of Law & Social Policy.

Another “Legally Speaking” column on compensation for exonerated prisoners was cited in a Western New England Law Review article examining how best to compensate the wrongfully imprisoned.

A story I did on restaurant critics getting sued for bad reviews wound up being cited as authority in the University of Missouri (Kansas City) Law Review article “The Good, the Bad, and the Gross: A Critical Review of Food Review Defamation Law.”

A column I did on governmental response to Arizona’s “show us your papers” law was cited in a Duke Law Journal article on federal preemption and state regulation of immigration, while pieces on lawyer misconduct have found their way into articles on legal ethics in the New Mexico Law Review, the Maryland Law Review and the American University Journal of Gender, Social Policy and the Law.

Perhaps the biggest surprise for me was when I saw a magazine article I wrote on traditional Irish law being cited in an article on Ireland’s blasphemy law in the Case Western Reserve Journal of International Law.

Since I’m not a full-time law professor, I’m not constrained by the looming shadow of tenure, and I don’t feel compelled to engage in an academic version of “counting coup” by only publishing in the most prestigious law reviews.

I like my work to be read, and to matter by adding to a body of thought about a particular subject, such that other lawyers, judges, and even lawmakers can benefit.  After all, isn’t that what really counts?