I was highly amused to read Adam Liptak's "
The Lackluster Reviews That Lawyers Love to Hate", criticizing law reviews as essentially amateurish and close to worthless when it comes to actually trying to persuade a judge.
I was pointed to it by
a posting by Betsy Munnell on LinkedIn, pointing out that as a practical matter of practice development, serious work with social media had measurable results. I'm not surprised.
Few other than myself will remember that I was invited onto law review and, after trying it for two weeks, concluded that my career would be better served doing something else.
This was a decision made by few, and never with such speed, but it became obvious to me that I had nothing of value to learn from the enterprise. My law school studies were at the dawn of the transition to word processing, but the tools employed by the Western New England College School of Law Law Review were absurd. For example, the tools were not even able to italicize properly; we were told that to underline material that was to appear in italics, and presumably, not to underline at all. In an enterprise a prominent feature of which was italicized case names (e.g.
Goodbody vs. Dogged) one would think that there would be some priority to getting that little detail right. Another, less esoteric problem was the media on which we were to submit our works. The system used 3.5" disks, but the law review lacked boxes for them; we were issued 3.5" disks in boxes for 5.25" disks. This was a level of technological idiocy I haven't even seen in Dilbert.
Even more discouraging was the use of dead trees to do research, instead of computers. 20 years ago, much case law was still not available even to proprietary systems, which chiefly relied for income on selling books, not subscriptions to electronic search services. I understood the economics but it seemed corrupt; these private companies had a license to publish court opinions and were pretty much to only way to get at them. Later when I worked with the Washington State Bar on efforts to make more of this public, the argument was made that the courts relied on these private parties to proofread the opinions. I just rolled my eyes ... but I digress. I could see we were learning the obsolete skill of looking things up in books, and I was not interested.
Finally, I was assigned a couple of cases on obscrue points of labor law and no interest in it. I realized that my career would be entirely in the hands of people other than myself; I would have no freedom. If this was going to be the case, why was I working so hard? I just couldn't see it.
Still, Law Review was supposed to be an elite enterprise and an important step on the path toward becoming the top rank of lawyers, so I persisted. There was a training of one or two days, which started with what appeared to be a mandatory attempt to frighten the proles. "This will be the hardest work you have ever done," we were solemnly told. I looked to my left and saw a classmate who had given birth during first year. I looked to my right and saw another classmate who was a city cop. I thought,
"Is this really worse than being shot at? Is this going to be harder than giving birth?
My first assignment was to write a fairly stupid article comparing two court decisions on a bit of labor law. Understand that I was a part-time student; I worked full time as a systems analyst for a major insurance corporation. What I did during the day was make sense of complicated requirements and put them into provably rational forms - provable, in the sense that the results had a monetary impact, were checked carefully by those who depended on them, and I caught hell when I was wrong. I'm not saying I was never wrong ... to the contrary, I made my share of mistakes ... but I was pretty darn good at making sense of complicated things, presenting them so others could understand them and subjecting the result to objective standards of review.
In contrast, this "Law Review" process consisted of analyzing to differing sets of rules emanating from similar, but factually distinct situations, and then inventing one or more rational forms that could accommodate both even if that form had not been on the mind of the other of either text. The evaluation of the work product was based first and foremost on the intricacies of form (see note on italicization above), secondarily upon the completeness with which I had explored all of the other cases (if any) that referred to the target cases, and only tertiarily (if at all) on the actual utility of the result.
This was boring. It was stupid. It may well have been what junior associates did at BigLaw Firms, but I could tell right away that I wasn't going to do it. It was also vaguely disturbing to me that I wasn't really being given the time to do an excellent job; I was supposed to get the work done as fast as possible, if necessary at the cost of whatever else I was doing. Again, this may be what junior staff do at Big Law - I don't know - but in the real world, it's a stupid way to do things. As a programmer, I have occasionally had to work in crisis mode because, well that happens, but to make that the planned and normal way of doing business makes no sense at all.
So one day I went to the law review office and told the very nice lady in charge of law review that I had decided my education would be better done elsewhere. She seemed puzzled - she was a very nice person as well as very, very smart, and I have no doubt that she is doing very successful work somewhere in Big Law or where ever she wants - but said ok.
My "mentor" for law review was less polite, saying grumpily that he always figured that I wouldn't be able to do the work. I didn't try to explain.
I was
Goodbye to Law Reviews, 23 VA. L. REV. 38 (1936)
Fred Rodell, Yale Law School
Abstract
It is doubtless of no concern to anyone that this is probably my last law review article. As a matter of fact, this makes one more article than I had originally planned to write. It was something in the nature of a New Year's resolution. Yet the request to do a piece about law reviews seemed a golden opportunity to make my future absence from the "Leading Articles, Authors" lists a bit more pointed than would the business of merely sitting in a comer, sucking my thumb, and muttering Boo. Keeping well in line with two traditions—a course which lawyers will readily understand—I decided to break the resolution and not wait for opportunity's second knock. This, then, is by way of explaining why I do not care to contribute further to the qualitatively moribund while quantitatively mushroom-like literature of the law.
There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground. And though it is in the law reviews that the most highly regarded legal literature—and I by no means except those fancy rationalizations of legal action called judicial opinions—is regularly embalmed, it is in the law reviews that a pennyworth of content is most frequently concealed beneath a pound of so-called style. The average law review writer is peculiarly able to say nothing with an air of great importance. When I Used to read law reviews, I used constantly to be reminded of an elephant trying to swat a fly."
... That was worth reading!
