Richard Posner (and Brian Leiter, commenting on Posner) weighs in with an up-to-date version of the argument against student-edited law reviews — that they reinforce intellectual laziness among the nation’s legal academy, bccause student editors aren’t sufficiently well-trained to discriminate meaningfully among genuine scholarly contributions and dreck, or to provide meaningful editorial support even for the good stuff.
Does the academy fail when it relies so uncritically on the existing system, or does it also fail to train students to approach the law more critically, i.e., as young scholars? Relatively few graduating law students are likely to become law professors, but wouldn’t it be a wise investment for us, on behalf of the profession, to spend more time teaching students basic techniques of scholarship? Not just the primitive research and writing skills that are dumped on first-year students, and not just the single long (and usually not particularly scholarly) paper that most students produce, reluctantly, as a condition of graduating. Perhaps we should require more papers, or more short scholarly exercises; more inclusion of students in the scholarly side of the law school environment. Will students stand for it? They will if we can show that they’ll be better and more valuable lawyers as a result. The ability to discriminate between good scholarship and fad scholarship carries over into law practice. Judge Posner, I suspect, would prefer to hear arguments informed by good scholarship than uninformed arguments or worse — arguments that can’t tell the difference.
The trend in the law schools runs precisely in the opposite direction; we follow the recommendations of the large law firms, I mean the ABA, with the result that virtually every reform in legal education over the last 15 years has been prompted by calls for more clinical teaching. I can’t say that pushing back in the other direction would cure the “scandal” of the law reviews, but I do think that the system of student-edited law reviews can be made to work better than it does today. There is more at work than faculty abandonment of their intellectual responsibilities.