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A Tiny Heart Beating: Student-Edited Legal Periodicals in Good Ol' Europe

Published online by Cambridge University Press:  06 March 2019

Luigi Russi  and
Federico Longobardi

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From the perspective of a non-American jurist, student-edited law reviews seem to be one of the most distinctive features of the United States legal education system. The development of law reviews in the United States has been particularly sustained in more recent years, with a literal proliferation of law (schools and law) reviews, both of general focus and subject-specific. With student-edited law journals making up the largest share of the legal periodical “market,” publication in highly ranked student-edited law reviews has come to acquire great significance also in relation to the law faculty selection and tenure-granting mechanism.

Type
Section 5: ‘Is More More?’ Thinking about Student Organization, Government and Community
Information
German Law Journal , Volume 10 , Issue 6-7: Following the Call of the Wild: The Promises and Perils of Transnationalizing Legal Education , July 2009 , pp. 1127 - 1148
Copyright
Copyright © 2009 by German Law Journal GbR 

References

1 See Zimmermann, Reinhard, Law Reviews: A Foray Through a Strange World, 47 Emory Law Journal(Emory L.J) 659, 660 (1998) (“[T]hey [i.e. law reviews] are one of the most remarkable institutions of American legal culture.”). The only other place displaying a tradition of student-edited law reviews is Australia, where, however, one had to wait until the mid-fifties for the first attempt by the University of Tasmania. For further background on the history of law reviews, see Michael L. Closen & Robert J. Dzielak, The History and Influence of the Law Review Institution, 30 Akron Law Review (Akron L.R.) 15, 41–43 (1996).Google Scholar

2 See posting by Matt Bodie on PrawfsBlawg, http://prawfsblawg.blogs.com/prawfsblawg/2006/01/project_on_peer.html (2 January 2006).Google Scholar

3 Gordley, James, Mere Brilliance: The Recruitment of Law Professors in the United States, 40 American Journal of Comparative Law (Am. J. Comp. L.) 367, 377 (1993) (“[I]n making a tenure decision, the faculty's entire capacity for sustained critical evaluation descends on the candidate's written work like a sort of laser directed landslide.”). See also, Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 Duke Law Journal (Duke L.J.) 705, 752 (1990)(“Many law faculties adopt in practice (though not in theory) a rule that if you publish some number of articles on clearly legal topics in well regarded law reviews, you will get tenure. Period.”).Google Scholar

4 See Posner, Richard A., Law Reviews, 46 Washburn Law Journal (Wasburn L.J.) 155, 155 (2006).Google Scholar

5 See Christensen, Leah M. & Oseid, Julie A., Navigating the Law Review Article Selection Process: An Empirical Study of Those With All the Power – Student Editors, 59 South Carolina Law Review (South Carolina L. Rev.) 175 (2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1002640 (last visited 15 April 2008); Nance, Jason P. & Steinberg, Dylan J., The Law Review Article Selection Process: Results From a National Study, 71 Albany Law Review (Alb. L. Rev.) (forthcoming 2008), available at http://ssrn.com/abstract=988847 (last visited 15 April 2008).Google Scholar

6 For a list of the existing European student-edited legal publications, useful for appraising the size of this new phenomenon, see, infra, Appendix.Google Scholar

7 See, e.g., Dybis, Karen, 100 Best Law Reviews, The National Jurist 22 (February 2008) (contending that the number of law reviews has become such as to enable publication of works of poorer quality, to the point that papers actually relevant to the legal debate could theoretically be found only in the best, e.g. top-100, law reviews).Google Scholar

8 Swygert, Michael I. & Bruce, Jon W., The Historical Origins, Founding, and Early Development of Student-Edited Law Reviews, 36 Hastings Law Journal (Hastings L. J.) 739, 741 (1985).Google Scholar

9 Id., 778–79.Google Scholar

10 See, supra, note 1, 662.Google Scholar

11 Available at http://lawlib.wlu.edu/LJ/index.aspx (Select “All subjects” and “US” in the scroll-down menus, tick the “Student-edited” box and press “Search” button).Google Scholar

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13 Godsey, Mark A., Educational Inequalities, the Myth of Meritocracy and the Silencing of Minority Voices: The Need for Diversity on America's Law Reviews, 12 Harvard BlackLetter Journal (Harv. BlackLetter J.) 59, 65 (1995); See supra note 1, 20: A Note generally “analyzes a recent case that has either solved or created a legal problem.”; See supra note 1, 19: A Comment, instead, “seeks to reveal a legal problem and then attempts to propose a solution to that problem by the end of the comment.”Google Scholar

14 Max Stier et al., Law Review Usage and Suggestions for Improvement: A Survey of Attorneys, Professors, and Judges, 44 Stanford Law Review (Stan. L. Rev.) 1467, 1491 (1992).Google Scholar

15 Id. Google Scholar

16 See, supra, note 13, 59.Google Scholar

17 See, supra, note 3. Id., 384: The author's critical attitude towards faculty recruitment methods in the U.S. is evident in his closing evaluation: “Perhaps the best way for any of us to promote a flourishing of legal scholarship at our schools is to spend less time recruiting and more time thinking about law.”Google Scholar

18 Considering the referenced work was written more than a decade ago.Google Scholar

19 See, supra, note 3, 370–71.Google Scholar

20 See, supra, note 13.Google Scholar

21 See, supra note 3, 380 (emphasis added).Google Scholar

22 See, supra note 1, 19. For a supporting statement, underlining how the lack of student-edited law reviews in the United Kingdom affected the faculty's publication experience, see Tony Weir, Recruitment of Law Faculty in England, 41 Am. J. Comp. L. 355, 359 (1993) (“First appointments being made at such a young age, it is unrealistic to expect applicants to have done much in the way of publication, perhaps a case-note or a book review. Editorial experience cannot be looked for, since the major law reviews are not run by students.”).Google Scholar

23 The authors’ personal experience and research has been limited to Germany and Italy. Therefore, whenever the term “Continental European” is used to refer to a particular system of legal education or faculty recruitment, a reference should be read to Germany and Italy only. While, of course, this does not exclude that similar situations may arise in other contexts, the research and experience in our possession do not allow us to draw any broader conclusions.Google Scholar

24 Kohler, Jürgen, Selecting Minds: The Recruitment of Law Professors in Germany, 41 Am. J. Comp. L. 413, 419–20 (1993).Google Scholar

25 Mattei, Ugo & Monateri, Pier Giuseppe, Faculty Recruitment in Italy: Two Sides of the Moon, 41 Am. J. Comp. L. 427, passim (1993).Google Scholar

26 See, supra, note 24.Google Scholar

27 See, supra, note 25, 435 (“New professors are coopted by maestri on the basis of gentleman's agreements. So one needs, first of all, to be the disciple of a maestro. A maestro teaches one how to write the graduation thesis or the doctoral dissertation, and how and where to publish the first papers. He suggests what to study and the topic of a book. He introduces the young scholar to editors and publishers. He entrusts the young scholar to deliver a paper at conferences where he was invited but cannot attend. The maestro is supposed to know the value of his disciple and the content of his writing, and he is supposed to defend him. In fact, it is the maestro who asks a faculty for a post for his disciple; he will vote and influence others to vote for committee members on the basis of their willingness to appoint his disciple.”).Google Scholar

28 See Unger, Oliver, ERAS-MUSS-NICHT, Iss. 2/Art. 9, Freiburg Law Students Journal (Freiburg L. Students J.) 7 (2008) (remarking the higher level of interaction that a German law student on exchange at Oxford enjoys because of the lack of the Lehrstuhlhierarchien (German professorial hierarchy)).Google Scholar

29 See, e.g., Garrett, Elizabeth, The Socratic Method, http://www.law.uchicago.edu/socrates/soc_article.html (stating how the purpose underlying the use of the Socratic method is “to learn how to analyze legal problems, to reason by analogy, to think critically about one's own arguments and those put forth by others, and to understand the effect of the law on those subject to it.”).Google Scholar

30 Not all teacher-student interaction is excluded in the Continental education system. In Italy, for instance, all students are required to produce a written dissertation – that may even amount to the length of a small book – and to later defend it in the degree-awarding ceremony. However, it is our opinion that a single big instance in which students are to complete a substantial written assignment (particularly if compared to the time students spend in conference-like lectures over the course of their education) still translates in lower writing abilities for fresh law graduates, in comparison to American ones. This, for the same reason that running a marathon once in a lifetime (and without previous training) still makes one a worse runner than someone who trains regularly, albeit on shorter distances. It is only practice that “makes perfect.”Google Scholar

31 See, id., 435 (mentioning that the publication of a – so to say – disciple's first papers takes place under the supervision of a maestro.).Google Scholar

32 Mattei, Ugo & Monateri, Pier Giuseppe, Foreword: The Faces of Academia, 41 Am. J. Comp. L. 351, 352 (1993) (A possible criticism “to the apprenticeship system based on the relationship between professor and pupil [is that it] could inhibit the development of new ideas.”).Google Scholar

33 Rudden, Bernard, Selecting Minds: An Afterword, 41 Am. J. Comp. L. 481, 483–84 (1993) (“Not only does the bar play a small role in selecting academic professors, but there seems to be little recruitment of full-time professors from the ranks of the profession. This may be because … the scholars feel a certain disdain for the pragmatici.“).Google Scholar

34 See, supra, note 1, 660, 693 (Highlighting the international uniqueness of the American law review system, implying that peer-reviewed journals generally prevail elsewhere).Google Scholar

35 See, supra, note 33, 486–87 (“[I]t would seem very likely that the number of able law students eager to become a law professor must be proportionately much smaller [in countries other than the U.S.] than the numbers ready to spend their lives as professors of some other field of learning. Since so many good students do not apply for law posts, one suspects that the average of the ability available in the pool of talent is lower than in those of other subjects. It seems to follow that, by comparison with their colleagues in other faculties (and on the whole, and by and large, and present readers always excepted) law professors are stupid.”).Google Scholar

36 This is the spirit which animated the creation of the first law reviews in the United States; see, supra, note 8, 741.Google Scholar

37 Havighurst, Harold C., Law Reviews and Legal Education, 51 Northwestern University Law Review (Nw. U. L. Rev.) 22, 24 (1956) (“Whereas most periodicals are published primarily in order that they may be read, the law reviews are published primarily in order that they may be written.”) (Google Scholar

38 See, supra, note 7, 26 (quoting professor Robert Jaris, Nova Southeastern University Law Center) (“‘Nowadays, you could get anything published,’ he said. ‘I could publish my grocery list some law reviews are so desperate. The reality is [law school] deans should come out against so many law reviews and the number of times they publish.”).Google Scholar

39 See, supra, note 5, 5. For some sample figures, see Eugene Volokh, Questions for Law Review Articles Editors, 12 September 2005, available at http://volokh.com/posts/1126582538.shtml (last visited Apr. 15, 2008) (respondents to Professor Volokh's blog post speak of 80–100 submissions per week in the “high submission season”).Google Scholar

40 See Caron, Paul L., What Are Law Review Articles Editors Looking For?, 24 March 2006, available at http://taxprof.typepad.com/taxprof_blog/2006/03/what_are_law_re.html (last visited 15 April 2008) (mentioning the “prestige” of an author's employer as a possible influencing factor for law review editors).Google Scholar

41 See Hibbits, Bernard J., Last Writes? Reassessing the Law Review on the Age of Cyberspace, 71 New York University Law Review (N.Y.U.L.Rev.) 615, 645 (1996) (“[T]hey [i.e. student editors] have increasingly refused to provide rejected law review authors with substantive written or even oral reasons for their rejection. There is little documentary evidence as to when editors began to abandon the practice of providing reasons, but anecdotes suggest that by the late 1970s it had died out at all but a few institutions, accelerated perhaps by the … professorial strategy of multiple submissions. Students were too pressed and too stressed to provide reasons or feedback. This deprived faculty of potential useful input and unfortunately helped to create an atmosphere in which it was easy to impute improper selection motives to student editors who no longer made even a pretense of offering evidence to the contrary.”)Google Scholar

42 Volokh, Eugene, Test Suites: A Tool for Improving Student Articles, 440, available at http://www.law.ucla.edu/volokh/testsuites.pdf (last visited 15 April 2008).Google Scholar

43 See, supra, note 41, 667–88.Google Scholar

44 Id., 675.Google Scholar

45 As Hibbits himself recognizes; see, id., 671–72.Google Scholar

46 Id. Google Scholar

47 In Hibbits, Bernard J., Yesterday Once More: Skeptics, Scribes and the Demise of Law Reviews, 30 Akron L. Rev. 267 (1996), professor Hibbits attempts to provide a counter-argument to the lack-of-quality-control criticism that has been made above in the text. In particular, he seems to argue that: 1) “quality in an electronic self-publishing system could be maintained via a system of post hoc reader comments. … Good articles would presumably receive good comments; bad articles would receive bad comments or no comments.” (Id., 295) (in a manner that, therefore, would not so much differ from the evaluation systems currently adopted by websites such as www.youtube.com, although with reference to different types of content); 2) “[i]n a self-publishing system, quality control would also be enforced by self-policing. …. [S]elf-interest would suggest that law professors post quality material lest they publicly embarrass themselves and do serious damage to their own academic reputation.” (Id., 297) It is respectfully submitted that such an argument might however display some criticalities. In fact, on the one hand, Hibbits correctly perceives how “[i]nstant dissemination of legal scholarship … has the potential of provoking instant reader responses which can reach a legal author directly, can reach her while her mind is still on her subject, and can reach her while she can still react and/or make revisions in light of comments received.” (Id., 280). In this respect, it is a known fact that the type of feedback that usually calls for an improvement or however a reassessment of a work's conclusions is generally a critical and – from the author's point of view – “negative” one. Yet, in a world without law reviews, authors’ scholarly caliber would – inter alia - be derived from the relative success “in eliciting positive comments from many scholarly readers (or from a few high-profile ones).” (Id., 300). Now imagine an author, particularly a relatively young one (e.g. a student -postgraduate or doctoral -, a young associate, a newly-hired professor), who was confronted with the option of publishing a work in progress in order to obtain feedback, but to do so with the risk of exposing himself/herself to the academic community's possibly negative judgment, which could chill her/his incentive to publish altogether (an interesting hint to the problem is done by Dan Markel, Whither SSRN?, 19 January 2006, available at http://prawfsblawg.blogs.com/prawfsblawg/2006/01/whither_ssrn.html (last visited 15 April 2008)). The intermediate solution consisting in the partial substitution of law reviews with student-edited working paper series (see, infra, p. 1140) could provide a viable intermediate ground, accommodating the needs of that (more or less conspicuous) segment of legal authorship that may demand some pre-emptive feedback, before actually “going public.”Google Scholar

48 See Posting by an anonymous Editor-in-Chief on The Volokh Conspiracy, http://volokh.com/posts/1126582538.shtml#19143 (13 September 2005).Google Scholar

49 See, supra, note 41, 640.Google Scholar

50 Available at www.bocconilegalpapers.org (last visited 23 June 2009). There actually exists another similar experiment, although outside the legal field: the concerned publication is Working Papers (est. 1996), available at http://www.pennworkingpapers.org/index.html. It is a journal published by graduate students in Romance Languages at the University of Pennsylvania, showcasing original works-in-progress by graduate students, giving them the opportunity to present their research in its preliminary stages and to receive feedback from colleaguesGoogle Scholar

51 All in all, we feel that direct provision of constructive feedback by the series’ editors and the adoption of open submission policies - i.e. not restricting submission to specific groups of individuals - could become the distinguishing features of student-edited working paper series, in comparison to existing working paper series available at most law schools.Google Scholar

52 Cf. Perry, Ronen, De Jure [sic] Park, 39 Conneticut Law Review CONNtemplations (Conn. L. Rev. CONNtemplations) 54, 58 (2007) (discussing the similar role of students in some Israeli law reviews, co-edited by students and professors), available at www.conntemplations.org/pdf/perry.pdf (last visited 8 May 2009).Google Scholar

53 See, supra, note 1, 675 (“The Bluebook, with its pedantic obsession with detail and zeal for regulation, has driven generations of reviewers to scorn and sarcasm, and generations of authors and (presumably) editors of law reviews to despair.”); Paul Gowder, Blog Post, 12 February 2008, available at http://prawfsblawg.blogs.com/prawfsblawg/2008/02/too-many-law-re.html (last visited 15 April 2008) (“[I]t ought not to be called a worthwhile skill, for several reasons: - It's not something you need a lawyer to do. A paralegal can check to see if citations conform to the rules. …. - It's not objectively worthwhile … society does worse with the existence of a bunch of lawyers who are trained to check whether the comma is italicized than it would do if that training were not present. …. - It's overall bad for the poor fool who gets the training. I can't prove that, but I intuit that spending a couple years of one's life scrivening over a bunch of citations and being conditioned to enforce … little rules about things like citation signals will produce a person with a notable narrowness of spirit and sensibility.)” This policy is already followed by the law journal, based at Harvard Law School, Unbound (est. 2005), available at http://www.legalleft.org/ (last visited 31 July 2008).Google Scholar

54 Perritt, Henry H. Jr., Reassessing Professor Hibbitts's Requiem for Law Reviews, 30 Akron L. Rev. 255, 256–57 (1996) (“Respectable arguments can be made that some contributions to the literature could be appreciated better by experienced faculty members as opposed to law students, although one can make an equally persuasive argument that good writing can be appreciated by those without unusual levels of specialized education and experience.”).Google Scholar

55 See, supra, note 5, 4.Google Scholar

56 Id.; see also, supra, note 1, 24 (“Another primary purpose of American law reviews is their function as reference material.”).Google Scholar

57 All the more so, if - over time -working paper series managed to differentiate from one another based on their “prestige” which would, in this case, come to depend on the relative importance of the law reviews where accepted working papers subsequently achieved publication.Google Scholar

58 This fantasy name has been used in a humoristic recollection of the frustration authors often endure in the course of lengthy reviews by law journal editors; see, Brandon P. Denning & Miriam A. Cherry, The Five Stages of Law Review Submission, 1 September 2005, 5, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=796264#PaperDownload (last visited 15 April 2008).Google Scholar

59 Unbound – Submit at, http://www.legalleft.org/?page_id=6.Google Scholar

60 Which, for a widespread and – probably – unjustified bias, may often be regarded as less influential.Google Scholar

61 See, supra, note 41, 653.Google Scholar

62 See, supra, note 1, 693 (In the U.S., instead, “[f]rom time to time there are suggestions to create a greater number of journals that are published by university professors rather than students, and contributions to which are thus approved by peers. Although such journals exist, they have not been able thus far to shake the traditional, and internationally unique, law review system.”).Google Scholar

63 See, Law Journals: Submission and Ranking, http://lawlib.wlu.edu/LJ/index.aspx (select “European Law” from the first scroll-down menu and “Non-US” from the one below it; tick “2008” in the IF and “Comb” columns on the right-hand side and press the “Submit” button) (displaying the ranking of journals publishing on European law topics: the first student-edited journal, the Hanse Law Review, is at place 17).Google Scholar

64 See, McCormack, Nancy, Peer Review and Legal Publishing: What Law Librarians Need to Know about Open, Single-Blind and Double-Blind Reviewing, 101 Law Library Journal (L. Lib. J.) 12–13, (2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1339227 (last visited 8 April 2009).Google Scholar

65 A hint in this direction stems from the fact that many legal academics tend to clearly highlight, in the respective publication records, whether a particular article appeared in a peer-reviewed or a student-edited journal.Google Scholar

66 See, supra p. 1140.Google Scholar

67 Despite the possible increase in scholarly production that may follow the onset of student-edited publications.Google Scholar