[T]he strait-jacket of law review style has killed what might have been lively literature. It has maimed even those few pieces of legal writing that actually have something to say.
If it wasn’t true when Professor Rodell wrote this passage in 1936, it’s surely true today: The influence of law reviews on the legal profession long ago reached its zenith, and has declined into practical insignificance.
But there are better reasons why practicing attorneys shouldn’t waste their time writing law-review articles. Let me explain.
Law Reviews Are Nearing Their Nadir
The decline in the influence of law reviews on the legal profession can be measured quantitatively and qualitatively.
The number of hard-copy subscribers to the best U.S. law reviews is down sharply since 1980. Even the flagship Harvard Law Review has lost almost 80% of its print subscribers, and can now only boast about 2,000 paid subscriptions. But law reviews have also suffered from a qualitative decline. Simply put, judges and the practicing bar no longer consider law-review articles useful secondary resources.
In 2004, 7th Circuit Judge Richard Posner examined this qualitative decline in Against the Law Reviews. Student-edited law reviews, Posner said, had strayed from their original purpose, which was “to serve judges and practicing lawyers, rather than other professors, by offering careful doctrinal analysis, noting, for example, divergent lines of authority and trying to reconcile them.”
According to Judge Posner, the “modern” law-review article—with its focus on flavor-of-the-day constitutional theories and adjunctive interdisciplinary issues—now magnifies
the bad effects of the inexperience of student editors and their failure to use peer review to separate the wheat from the chaff. . . [T]oo many articles are too long, too dull, and too heavily annotated, and . . . many interdisciplinary articles are published that have no merit at all. Worse is the effect of these characteristics of law reviews in marginalizing the kind of legal scholarship that student editors can handle well—articles that criticize judicial decisions or, more constructively, discern new directions in law by careful analysis of decisions. Such articles are of great value to the profession, including its judicial branch, but they are becoming rare. . . .
The Trend in Legal Scholarship is Short, Focused Columns and Blog Posts
Since Judge Posner’s 2004 critique, periodic legal newspapers and legal websites and blogs have begun to supplant the law reviews as primary sources for critical legal scholarship. As Walter Olson recognized in Abolish the Law Reviews!, this trend has resulted in more law professors and practicing attorneys submitting their scholarship to shorter-form online publications like the Law Professor Blogs Network, which the legal academy now considers a legitimate alternative to the law reviews.
As an example of this trend towards shorter, mostly online legal scholarship, consider the recent tit for tat between Supreme Court Justice Antonin Scalia and Bryan Garner on the one hand, and Judge Posner on the other, regarding Judge Posner’s review of Justice Scalia’s and Garner’s new book on statutory interpretation: Reading Law: The Interpretation of Legal Texts.
On August 24, 2012, Judge Posner fired the first volley by publishing a highly critical review of Reading Law in The New Republic. About two-weeks later, Bryan Garner took to his LawProse Blog to respond to Judge Posner’s criticisms. And interested third parties also joined the fray. Ed Whelan of the National Review, for example, defended Justice Scalia and Garner in multiple National Review Online Bench Memos posts.
This heady debate among legal giants would have taken at least a year to play out in the pages of a law review. Instead, readers interested in this high-level spat were able to follow the debate in almost real time, without paying for a law-review subscription or access to an electronic legal database.
Practicing Attorneys Shouldn’t Write Law-Review Articles
In addition to the fact that law reviews are declining in both influence and quality, if you’re a practicing attorney and don’t want to be a professor someday, there’s little reason to write a full-length law-review article.
It’s a Long, Tedious, Exhausting Process to Publish a Law-Review Article
It takes at least one year—from the beginning of writing to publication—to publish a full-length law-review article. During this period, you generally cannot pursue other writing projects unless you want to prolong the process. Researching an article can also be tedious given the amount of support required by the law reviews, and can become expensive if you need to consult electronic databases like Westlaw or Lexis.
And unlike a full-time law professor who has relatively flexible teaching hours during which he can devote time and a research assistant to the project, if you’re practicing law full time you will need to spend many nights and weekends alone in the library or at the computer slaving away at your draft.
Forget About Writing Plain, Conversational Prose
As Professor Rodell also observed in Goodbye to Law Reviews, “it seems to be a cardinal principle of law review writing and editing that nothing may be said forcefully and nothing may be said amusingly.”
Let’s assume that you convince a law review to publish your article (which is rare if you’re a mere practitioner). Now, the frustrating part of the publication process begins.
The student-editors will begin to edit the article, striking quick coordinating conjunctions like And at the beginning of sentences and replacing them with moribund Moreovers or Furthermores. They will delete serial commas, claiming that it costs extra to print them, and that including them wastes space.
After addressing this low-hanging fruit, the student-editors will delete your strong, active voice, and replace it with, as Professor Rodell says, “fuzzy-wuzzy words that seem to apologize for [you] daring to venture an opinion.” They might even insert a few nominalizations for good measure. After all, don’t all sophisticated lawyers adhere to Jeremy Bentham’s noun-preferring principle?
The student-editors will then focus their attention on adding innumerable redundant footnotes to support the text, since, as Professor Rodell quips, “[e]very legal writer is presumed to be a liar until he proves himself otherwise with a flock of footnotes.”
And don’t dare attempt to slip humor by them; such frivolity, of course, has no place in the law, much less in the tony pages of a law review.
Overall, the student-editors will deaden your prose style, claiming that their revisions will make your article read more like a “real” law-review article. So good for you if you submitted your article in Plain English, with a warm, conversational, inviting tone; rest assured, the final product will be anything but.
Law-Review Articles Don’t Equal New Business
If you think that writing a law-review article will get you new clients, stop deluding yourself. Writing a law-review article rarely generates new business.
None of my law-review articles generated a client lead, much less an actual client. Of course, your law-review article might be the exception that disproves the general rule. But I wouldn’t hold your breath.
To Improve Your Legal Writing and Market Your Practice, Write Shorter, Narrowly Focused Articles
After practicing commercial litigation for 11 years and publishing several full-length law-review articles during that time, I’ve soured on the usefulness of practicing attorneys writing law-review articles to improve their legal writing or generate new business.
Unless you want to be law professor, don’t waste your time writing law-review articles. There are better things to do than committing your time and sanity to a long, tedious, and exhausting writing project that might not even be accepted for publication; that will require you to deaden your prose style; and that won’t generate any new business for your practice.
Instead of writing law-review articles, follow the trend above and focus on writing short, narrowly focused articles for legal newspapers and online legal publications. These writing opportunities will allow you to tackle timely, discrete legal issues that have at least a chance of influencing judges and the practicing bar. And, if you’re smart about your topics and a bit lucky, these articles might even result in a new client.