Whitewash

BY MITCH WEBBER

1. Some people think of working on a law journal the way children think about eating their vegetables – unpleasant, but good for them. The difference is, vegetables really are nutritious, while journal work won’t make you a bit stronger, healthier, or better at lawyering. More aptly, working on a journal is like getting duped by Tom Sawyer into whitewashing his Aunt Polly’s fence. It’s an abysmal chore that doesn’t do you any good, but you do it because someone told you it’s the thing to do.

2. We’ve been told countless times – as if this is a good thing – that law is the only academic discipline in which the scholarly journals are entirely student-run. It sure sounds like a lot of responsibility we’ve been entrusted with, right?

But leaving journals entirely in students’ hands could mean one of two things. On the one hand, maybe law students are a more capable bunch than our medical and grad school peers. It makes intuitive sense. After all, most doctors I know went to med school because they weren’t smart enough to get into law school. But this explanation is a bit unsatisfying. For example, I wonder, if law students by our second year have mastered the field, to the extent that we’re selecting and perfecting our professor’s work, what are we still doing in school at all? In that case, shouldn’t our professors be paying us to teach them?

The second, less self-congratulatory explanation is that students run the Harvard Journal of Law and Technology, and not the New England Journal of Medicine, because legal scholarship is a lot less consequential than the research conducted in other fields. Law journal work is of such little import that the profession is perfectly willing to look past what Judge Posner calls the “poor judgment and thoughtless impositions” of student editors.

(To be fair, some judges are more sanguine about the value of legal scholarship to actually legal decision-making. As Judge Kozinski said in his lecture entitled “Who Gives a Hoot About Legal Scholarship”, “Years ago I gave standing orders to my clerks that, whenever possible, they should cite academic materials in my opinions, because that way the opinions would surely be read by the authors who would then cite me back.”

3. We’ll start from the beginning of the process. Journal work in the first year consists almost entirely of citation formatting. Journals call this task “subciting,” which is short for “substantive citing,” which in turn is short for “our treatment of Guantanamo detainees doesn’t sound that bad in comparison.”

Just how silly is it for law students to spend their time subciting? If a lawyer got caught Bluebooking, he’d be accused of defrauding his client; lawyers can’t ethically bill out at $200 per hour for a task ordinarily delegated to secretaries.

Law professors have secretaries, too, but they don’t use their secretaries for Bluebooking. Law professors have a much more cost-effective system. They send their articles to law students, who do the formatting for free!

This raises the obvious question: Why are law students so eager to (1) do secretarial work, (2) without the pay? It’s because the profession has determined that journal experience is a valuable resume credential. It’s funny how that so neatly absolves the profession of all responsibility for its scholarship review.

4. Of course students don’t subcite forever. By the second year, we get to write our own case comments and notes.

Last week, George Washington Law Professor Orin Kerr expressed skepticism over student writing. He suggested that blogs have made the law journal case comment obsolete. Kerr noted that within days after a court issues an opinion, lawyers and law professors from around the country have already thoroughly analyzed the court’s reasoning and the case’s likely impact.

Kerr writes, “In general, the quality of legal analysis generated by the [legal blogs] is notably higher than that of case comments; practitioners and law professors have more expertise and experience than 2Ls, and the back-and-forth debate online generally tightens loose thinking pretty quickly. In contrast, student case comments are usually short on perspective and long on political agendas; the majority seem to fall into the ‘I’m liberal and want to bash the Rehnquist Court’ mold, or the ‘I’m conservative and this Reinhardt decision is nuts’ mold.”

The trouble with Professor Kerr’s indictment of the case comment is that he fundamentally misunderstands the rationale behind writing a student case comment.

Case comments were never meant to influence or aid the legal community. To be of any consequence, someone first would have to read case comments. Of course, aside from the author herself and her journal editors, no one reads comments and notes. There’s just no reason for a lawyer, judge, or professor to wonder what a 2L with no legal experience has to say in five pages or less about the Supreme Court’s reasoning.

Again, then, why do we do it? If student writers have no audience, what possible purpose does student writing serve?

The benefit of student writing, as with subciting, is wholly for the student herself. Put another way, case comments and notes give students the opportunity to publish, which is valuable only to the extent that it gives us the opportunity to say that we’re published. Student journal writing is like a solipsistic tree falling in the forest: no one may be around to hear it, but the tree doesn’t care.

5. So, no, case comments are no more obsolete than they ever were. Harvard will continue to publish thirty-seven journals on Law and [demographic group / tenuous interdisciplinary connection]. First-years will continue to flock to the Journals Fair to be exploited by a profession that doesn’t care enough to expend time and resources on its own scholarship. Second- and third-years will continue to author articles that are of no use to anyone but the author.

As long as students pad resumes, law journals will thrive.

Mitch Webber is a 2L who loves journal work.

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