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.