At Least One Cheer for Law Reviews

Law reviews as venue for scholarship come under a lot of justified criticism, but at least the editors check the footnotes

|The Volokh Conspiracy |

Any well-published law professor can recite a litany of complaints about law reviews, the generally student-edited journals where most legal scholarship is published. For example, the students require citations for opinions, or for well-known facts; students get to select the articles they publish, but don't have the expertise to do so; and the bluebook citation system most law reviews follow is much too cumbersome, and requires way too many explantory parentheticals.

One advantage law reviews do have, however, is that the editors are meticulous about checking footnotes to ensure that citations actually support the authors' contentions, and that quotations are accurate. This has its limitations; a Holocaust denier citing to books by Holocaust deniers would pass such screening. But it does at least prevent authors from either just making things up or being incredibly sloppy, and then sticking in footnotes to make the invention or sloppiness look scholarly.

I've been involved off and on over the past year and a half in the ongoing debate over Nancy MacLean's book Democracy in Chains. My interest in the book was piqued when some of my Facebook friends were criticizing it for a variety of scholarly sins. I got hold of the book, and immediately turned to MacLean's brief discussion of my law school and its former dean, Henry Manne. I found that what MacLean wrote did not mesh with the facts. I thought perhaps that she was led astray by sources she thought to be reliable, so I checked her footnotes. Nope. She just made things up. For example, she asserted that Manne only hired white male faculty, which was not remotely true. Not only did the source she cited in the relevant footnote not assert this, it specifically mentioned my colleague Bruce Kobayashi, who has a very common Japanese surname and is in fact of Japanese descent.

MacLean is not the only recent perpetrator. Quinn Slobodian has emerged as leading historian and critic of the free-market oriented "neoliberal" (whatever that means) economists who emerged as leading critics of economic statism after World War II. Here's what economist Richard Ebeling found after reviewing a recent article by Slobodian on economist Ludwig von Mises:

Professor Slobodian has 93 footnotes in his article. Over 50 of them reference Mises's writings or correspondence. Looking them up, I found many instances in which the page reference to a paraphrase of a passage or a quote in one of Mises's works was not to be found where Professor Slobodian indicated it to be.

In some instances, this was not simply being off a page or two; the page referenced turned out to be in a portion of one of Mises's works that had nothing to do with the theme or idea that Professor Slobodian was referring to in the text of his own article. Hence, the paraphrase or quote literally had to be taken on good faith as being accurate or even there in one of Mises's writings.

In addition, there are instances in which Professor Slobodian asserts or implies views or states of mind held by Mises at some point in time. But the footnoted reference sometimes refers to some other scholar's work that when looked up did not refer to or imply anything about Ludwig von Mises.

One might be inclined to be more generous about these errors if they always didn't point in the same direction, to make historical figures that the authors object to on ideological grounds look bad. As in the case with MacLean, one suspects that some historians first construct their narrative, then look for citations to support it. If citations don't support the preconceived narrative, they abandon sound scholarly citation practices rather than abandoning the narrative.

Again, law reviews are far from perfect. But if you read a law review article, at least one published in a reasonably respectable journal, you can at least be pretty confident that the assertions made by the author are supported by the sources the author cites. One might think that we could trust professional historians to be meticulous about their sources without having third parties review them. Unfortunately, we cannot.

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  1. Since your praise is with law review editors, shouldn’t your criticism be with MacLean’s and Slobodian’s book editors?

    1. Why can’t it be both? The authors committed the original sin of commission; the editors committed the sin of omission.

      1. Sure, it can be both.

        However, Prof. Bernstein never addresses the book editors’ actions.

        He simply gets into his criticisms of MacLean and Slobodian.

        His blurb about law review editors was just smoke to hide his true intentions.

        1. So your comment was also just smoke to hide your true intention of sniping for no reason other than to snipe?

    2. There are many reasons that this doesn’t make any sense. For one thing, the Slobodian piece he’s talking about isn’t a book, so it didn’t have a book editor. For another, book editors generally don’t act as fact checkers, so they didn’t fail at their jobs by not catching these things. For a third, there’s no parallelism between the two sides. If A and B are shot by assailants, and we praise a doctor for saving person A’s life, that doesn’t mean that we ought to criticize the second doctor for failing to save person B.

      For a fourth, huh? Your response has literally nothing to do with anything he wrote, which was, quite simply: while there are legitimate critiques of the law review process, here’s a good thing: it catches mistakes that the non-law review process does not.

  2. one suspects that some historians first construct their narrative, then look for citations to support it.

    A lawyer would never do that, of course, either in arguing a case or writing an article.

    1. Perhaps David is just trying to illustrate his point: if the footnotes are accurate, then whatever faults in the argument remain are simply the author’s own.

    2. A lawyer would never do that, of course, either in arguing a case or writing an article.

      Like apedad, you completely miss the point. A lawyer writing an article might do that but the law review process would catch it.

      A lawyer arguing a case is not an academic, and it’s weird that you would try to defend a bad historian by making such an analogy.

  3. The economist who found the citation issues (which do look pretty lame) has the telling aside ‘See my article, “Quinn Slobodian and the Academic Attack on Mises and Hayek”.’

    One wonders what his citations are like. Or if he’s perhaps into a particular narrative himself.

    Though it is notable that the vast majority of your linked article goes into substantive debate; only a small prefatory four paragraphs discusses the citation issues you make central.

    Prof. Bernstein just as guilty of advocacy dressed up as scholarship as anyone you’re pointing at. Doesn’t mean they shouldn’t shape up, but it does put a certain pall over your high dudgeon and accusations of bad faith (or pointedly damming complements).

    1. I recommend the linked article, BTW. It’s a pretty interesting substantive scholarly debate, and seems to fairly quote Slobodian’s part of the argument.

    2. “One wonders what his citations are like. Or if he’s perhaps into a particular narrative himself.”

      One doesn’t wonder that, unless one is a partisan douchebag so desperate to excuse bad behavior by one’s fellow travelers that one is willing to engage in baseless personal attacks and charges of bad faith. One isn’t surprised that you are willing to do that.

      1. Hey.

        Not sure how productive responding to you is, but where do you see me accusing Prof. Bernstein of bad faith? Do you think he’d deny being an advocate?

        1. Seriously, learn to read.

            1. So I take it that’s a no on the learning to read thing. You prefer to keep totally misrepresenting the comments you are allegedly responding to. I guess that does make it easier for you.

          1. Criticizing “advocacy” in general and criticisms “advocacy supported by factually incorrect statements unsupported or even contradicted by the sources cited to support those statements are separate issues. Perhaps someday I’ll write a post on advocacy and scholarship. This post is about failure to meet basic scholarly standards, which is not inherent in advocacy scholarship.

            1. Shoddy scholarship is a problem, and it is not tied to advocacy; on this we concur. But the article you linked doesn’t tie the shoddiness to advocacy – it ties being wrong to the advocacy, and then goes into substantive debate.

              I guess that clarifies my main issue to me – you’re advocating (which is fine) by attacking an important issue that seems largely collateral to Slobodian’s main thesis.

              It’s low hanging fruit, but I think you’re barking up the wrong tree.

              Certainly someone should audit this guy’s other work.

              1. The food stinks in this restaurant!

                Yeah and the portions are too small!

    3. Sarcastr0: “Prof. Bernstein just as guilty of advocacy dressed up as scholarship as anyone you’re pointing at.”

      Anyone who haunts this site should know that. But still, are the citations truly bad, such that his argument is correct? And … is /he/ guilty of fabricated or iffy citations? If the answers are “yes” and “no,” then he should win. People who fake stuff should pay the price, but it seldom happens.

      (the response to historian Michael Bellesiles’ fabricated data in “Arming America” is a rare
      counterexample)

      1. Is noted in my second post, the issue I have is the unsupported causal link between the shoddy work and the imputation of bad faith.

        Certainly I didn’t see that in the linked article.

  4. I won’t claim that mistakes have never crept into my work. I will claim that they are neither systematic nor intentional, and, moreover, that in most cases any mistakes remained even after third parties checked my citations for accuracy, given that that over 90 percent or so of what I’ve written in my scholarly career has been cite checked by law review editors

  5. Quinn Slobodian has emerged as leading historian and critic of the free-market oriented “neoliberal” (whatever that means) economists

    That’s nice. Did it occur to you to look at Slobodian’s work to see what he means by the term?

    1. Neoliberal – “neoliberalism is one of academia’s new buzzwords, typically employed to refer to people or businesses who appear left-wing but instead are evil capitalists.”

      1. Most liberals accept the unmatched power of capitalism to generate wealth that may, in turn, be used to buff its rough edges. Indeed they rely on it.

        I’m not sure how big the full blown socialist/communist wing actually is.

        1. There’s high 4 figures of actual socialist-communists in the U.S.

          And somehow, they’re under every bed, and in every closet in the opinion of some.

        2. Most liberals accept the unmatched power of capitalism to generate wealth that may, in turn, be used to buff its rough edges. Indeed they rely on it.

          I’m not sure how big the full blown socialist/communist wing actually is.

          Not very big.

          Your first paragraph is certainly true, though there are obviously differences of opinion as to how much buffing is appropriate.

          Really, though, my criticism was of Bernstein for his dismissive parenthetical, which suggests he hasn’t bothered to try to to find out what Slobodian means by the term. He’s under no obligation to try of course, but if he’s not interested then I think he should refrain from issuing random sneers.

  6. I am not much interested in law review debates.

    I quit law review. Twice. To play cards.

    (Mostly. Also to work to support a wife. But I like the sound of ‘quit law review to play cards with my friends’ better.)

    1. Law review is a scam. For the vast majority of people who do it, the only appreciable benefit they derive is a bit of resume varnish recognized only by people who recognize it because they feel like they’re supposed to.

      Bluebook skills are useless in the real world. Virtually no one will read your Note or find it useful. It’s just another in a series of arbitrary tags that we use to ensure absolute conformity of thought in our law school faculties and courts.

      1. Bluebook skills are useless in the real world.

        I gather you never worked for a strong law firm. Or handled anything more than nuisance-value-settlement cases at any law firm.

    2. Shut up and deal (with apologies to Shirley Maclaine).

  7. To the extent the articles and cites are the mess described in this post, it points out editors at the law reviews who didn’t do their jobs. They didn’t take the results of spading back to the authors and get them to clarify or rewrite their pieces. It also points out that the spading was done horribly or not at all. Whatever one says about it, spading is the work that finds the bullshit in articles and exposes it to the light. Taking statements on faith is not acceptable, if you want to have your review respected. Overall, the reviews that published this drivel have shown their low standards by letting the articles go to print.

    1. Thank you for completely missing the point of the post – that these appeared in books, not law review articles.

      1. But if you just want to badmouth the law reviews, for not checking sources properly, what BETTER way than commenting on an article that praises law review editors for being extremely thorough in checking sources?

      2. Try it this way:

        To the extent the [books] are the mess described in this post, it points out editors at the [publishers] who didn’t do their jobs. They didn’t take the results of [fact and/or source checking] back to the authors and get them to clarify or rewrite their pieces. It also points out that the [fact and/or source checking] was done horribly or not at all. Whatever one says about it, [fact checking and source checking] is the work that finds the bullshit in articles and exposes it to the light. Taking statements on faith is not acceptable, if you want to have your [publishing house product] respected. Overall, the [publishers] that published this drivel have shown their low standards by letting the [books] go to print.

        Better?

  8. Prof. Bernstein included in his list of complaints against student-run law reviews that “students get to select the articles they publish, but don’t have the expertise to do so.”

    This is without doubt an overstatement. The students in question are typically in their early 20s and are uniformly college graduates. They’ve typically completed at least a year and a half of law school, including all or almost all of the curriculum required for graduation from their respective law schools. The best of them go immediately to work for state and federal judges, not only to do research and editing, but to actually draft legal opinions which, when accepted by their judges, go directly into the law books.

    Prof. Bernstein was himself one such, as was I.

    The rest of his post ? with which I agree, and for which I applaud him ? is that academics who have the expertise needed to evaluate and choose among submitted articles can’t be trusted to do that, at least when it comes to academic historians.

    Student law review editors, I respectfully submit, are the least worst deciders available.

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