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Law Reviews and Cartelization

Michael Froomkin is right to question the wisdom of the recently announced policy change by “flagship” law reviews in favor of shorter law review articles. (I put “flagship” in quotation marks because I borrow the term from the ACSBlog posting.) And like Michael, I don’t say that merely out of self-interest — having published my own share of behemoth pieces.

The problem is not merely that some really, really good scholarship takes more than some arbitrary number of pages to set out. It’s not merely that tenure-related incentives encourage junior faculty to write more foundational material to demonstrate depth, breadth, and scholarly discipline to reviewers and colleagues. And it’s not merely that the second-year law students who are often in charge of selecting articles rarely know enough about a discipline (let alone some combination of disciplines) to make an informed decision about publication-worthiness without some extended defense of the article’s importance in the context of the piece itself. And even then, their knowledge base is typically pretty low.

No, the problem with the law review edict is that writing is what lawyers do. It’s what we’re trained to do, and it’s what we’re paid to do. The written word is the coin of all of our realms. Law review editors telling law faculty that they write too much is like Emperor Joseph II telling Mozart that he used “too many notes.” It’s no defense that law faculty themselves told law reviews that articles are too long. If someone else’s piece is too long, then don’t read the whole thing. If your piece is too long, then hopefully a constructive colleague will tell you so, and if you’re wise, and especially if a promotion is in the cards, you’ll listen. (If you think that the extra length is really all that important, then publish somewhere other than in a “flagship.”) But don’t blame the editors for your own lack of self-discipline.

A true story: When I was in private practice, I assembled a killer summary judgment motion for a client that was defending a lender liability lawsuit. Unfortunately, my brief was a couple of pages longer than the local court rules allowed. By phone, I arranged with opposing counsel to stipulate to filing an “oversized” brief, and I drove down to the courthouse to secure the judge’s permission to file. Piece of cake, I thought. Wrong. I sat down in front of the judge and explained the situation. Too many issues to fit in a conventional brief, and the other side was amenable to the extra length. The judge said: Let me see the brief. I gave it to him. He quickly read through it, then he said: You don’t need this argument. So you don’t need the extra length. Request denied. Chastened (who loses an unopposed request to file a couple of extra pages in a brief?), I returned to the office, deleted the offending argument, and filed a compliant brief. Result? Not only did the judge — the same judge — grant the motion, but we won without oral argument. On the papers.

UPDATE: Scrivener’s Error comments. I replied privately, mostly along the following lines: I spent a long, long time writing briefs and memos and other things where being concise meant winning and/or getting paid. That’s the point of the anecdote. I know how and why to go short. Moreover, I’ve published enough, both short and long, to know when you need the extra words, and when you don’t.

it’s one thing to be told by a senior lawyer, or a judge, or a professor that your writing is verbose. It’s something else again to get it from law students who, on the whole, don’t have equivalent experience or authority and who, on the whole, don’t really care about your being a better writer. They’re trying to polish a product.

Concise writing is a good lesson to learn. I teach it to my students, and I try to work on it in my own writing. But Joseph II wasn’t in any position to lecture Mozart (he wasn’t even in a position to lecture Salieri). In the same sense, law review editors aren’t in a position institutionally to teach faculty. One to one, all of us have things to learn, and all of them have things to teach. If a law review board decides not to publish a piece because all things considered, including length, it’s not worth publishing, fine. But should a cartel make these judgments in advance?