by Margaret Jane Ambrose
Bear with me; I know it’s an old wound. It was back in 2011 that Chief Justice Roberts lobbed a bomb at the academic community by deriding law reviews for being esoteric to the point of having little to no value for judges and practicing lawyers. Since 2011 there have been a variety of responses, ranging from strident defenses put forth by law professors, to agreement from other judges, to critiques that Justice Roberts does in fact cite law review articles despite his criticism. The Chief Justice’s use of law review articles aside, one study shows that only 43% of law reviews have ever been cited. Another indicates a drop in Supreme Court opinions that cite law review articles from 50% in the 1970s and 80s to 37% since 2000. Even more studies indicate that law professors themselves are dissatisfied with the current process, and that this problem was identified by others including Fred Rodell in 1936 and Harry T. Edwards in 1992, long before Justice Roberts stirred the pot in 2011.
Given this history of grievances with law reviews, it is important to focus on solutions moving forward—specifically, the solutions that law librarians are uniquely situated to offer.
Take, for example, the recommendation by Deborah L. Rhode in The Trouble with Lawyers. Although Rhode spends most of her time on other issues, she does recommend better training for student editors in the area of article selection and editing. Her main bone to pick with law reviews is that student editors are often overly enamored with “erudition in excess” and tedious footnotes that make for “ostentatious displays” but are no guarantee that the author has “actually read the sources cited or that they represent the best thinking in the field.”
Many law librarians currently work with law reviews to teach new journal members about access to materials and research skills to help them with their source citations. But perhaps more can be done. Law librarians could work with the editors themselves, to give them pointers on how to spot good research from bad, and even cue them into the current problems with the law review editorial process. This could open doors to other changes such as blind peer review and open access.
Yet another recommendation for law librarians is to encourage a focus on issues that would help lawyers and judges. Of course, there is probably no circumstance in which a law librarian would tell a law faculty member what they should be researching and writing about, but the fact remains that law librarians have a very real connection with the “real world” of lawyers and judges through colleagues working in law firms and court libraries. Academic law librarians have two avenues through which they can use this knowledge to exercise influence. The first is through collection development and communication with the faculty about resources that can help them conduct research into topics that lawyers and judges would find useful. The second avenue is to lead by example. I am sure I am not the only librarian who has a new life-long goal to publish an article that is cited by the SCOTUS, as did John Cannan, whose article was cited by the court in King v. Burwell.
Of course, like all the recommendations about improving the utility and relevance of law reviews, my suggestions are easier said than done and, most likely, have already been tried to a certain degree. I am sure there are other recommendations out there that are even more worthy. Please comment below and add any ideas or experiences in working with law review editors and faculty on improving law reviews.