By Isabella Pickett | Staff Editor

April 10, 2024

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The first successful student-edited law review was founded in 1886 at Harvard Law School by future Supreme Court Justice Louis D. Brandeis.[1] In the beginning, the Harvard Law Review was called the Langdell Society, christened after the man who popularized the case method for legal education.[2] From there on, dozens of student-edited law reviews have followed in the Harvard Law Review’s footsteps, editing and publishing legal scholarship.[3]

Student-edited law reviews have contributed significantly to the profession.[4] True to their mission, student-edited law reviews advance legal thought and discussion through student initiative, responsibility, and autonomy.[5] The enterprise of student-edited law reviews pervades through one vital crux: they are student-controlled.[6] From selecting articles, daily operating, editing, and more, student-edited law reviews present an unparalleled learning experience for law students.[7]

Following their heyday, the gradual shift in legal scholarship in the 1970s to 1990s caused student-edited law reviews to fall out of favor with jurists.[8] Law review articles simultaneously began disappearing from judicial citations.[9] The profession scrambled, searching for what caused this scholarly snag and what solutions could redress it.[10] Naturally, the “student-edited” part of the student-edited law review was targeted with polemic critiques.[11]

Well-intentioned faculty have often tried to seize the reigns from students. However, attempts to replace student-run law reviews with faculty-run ones have been rebuffed with routine success.[12] Noticeably, no faculty journal is ranked higher than 65th in terms of impact on the Washington and Lee Journal Rankings.[13] Out of the top 100 law reviews for impact, only 2 faculty journals even place.[14] Beyond student rebukes and rankings, faculty-run law reviews fail to address the problem facing law reviews generally, and in fact threaten to exacerbate it.

The problem is the decreasing persuasive weight of citing law review articles.[15] Law review articles mean less and less to practitioners because legal scholarship has become increasingly niche.[16] However, faculty-run law reviews tend to give prestige undue weight and tend to twist law reviews into esoteric echo chambers of niche legal academia.[17] The natural result is a feedback loop: faculty law reviews publishing more enigmatic articles, the said articles are cited less, leading legal academia further away from its practicing counterparts.

Faculty-run law reviews fail to replace student-run ones in two major ways. First, they are plainly contrary to the purpose of student-run law reviews—for students to learn.[18] The article selection process alone exposes student editors to topics they would not otherwise learn about. On a practical basis, the ingenuity of a student-edited law review is it requires hands-on learning, peer-to-peer instruction, and more responsibility than any seminar-style class.[19] Put simply, faculty-run law reviews remove the “sink or swim” motivation student-edited law reviews provide.[20] If this motivation is not present in a student editor’s law review (for example, if it is faculty-run) potential employers are deprived of a reliable way to distinguish candidates that have cut their teeth in these kinds of environments.[21]

Second, faculty-run law reviews are incapable of performing the gatekeeping function that students do. Student editors act as gatekeepers, often aggravating academics.[22] Their unfamiliarity with the topics makes student editors powerful filters for stuffy arcane legal writing. If the article is not clear enough for them to understand, as people with some legal exposure and experience, it is too complex to publish. The law is already a complex beast, and student editors ensure ordinary people do not need formal legal education to make head or tail of it.[23] If faculty were able to select, edit, and unilaterally publish articles, it would only further entrench the institution of legal thought in the trappings of academic elitism.

There are alternative answers to the problem facing law reviews generally today.[24] While it is clear faculty-run law reviews are one answer, it is not the correct one. To be clear, faculty involvement is still beneficial in the student-run law review. Because the legal profession is self-regulated, faculty have an ethical obligation to help maintain the minimum standards by guiding and mentoring fledgling lawyers who may be moonlighting as student editors.[25] In fact, faculty may go beyond and encourage student editors to strive for excellence. However, these benefits, and many more, may be bestowed without eroding the autonomy and purposes of the student-run law review.

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[1] Erwin N. Griswold, The Harvard Law Review—Glimpses of Its History as Seen by an Aficionado, Harv. L. Rev.: Centennial Album (1987), available at https://harvardlawreview.org/print/no-volume/glimpses-of-its-history-as-seen-by-an-aficionado/.

[2] Lindsay Rogers, The Centennial History of the Harvard Law School 1817–1917, 6 Va. L. Rev. 70 (1919).

[3] See Thomas W. Merrill, The Digital Revolution and the Future of Law Reviews, 99 Marq. L. Rev. 1101 (2016) (“As you may know, Harvard established the first student-edited law review in 1887. Once the Harvard experiment was seen to be a success, other schools followed suit.”).

[4] For example, The Bluebook: A Uniform System of Citation is a descendant of the “Instructions for Editorial Work” booklet created by Harvard Law Review student editors for its new members. Griswold, supra note 1. Now the Bluebook is used pervasively throughout the legal profession beyond law reviews. Id.

[5] See Griswold, supra note 1 (“The fact that the [Harvard Law]Review has been operated with student initiative and responsibility has contributed greatly to the education it provides its members.”).

[6] Id.; see also James W. Harper, Why Student-Run Law Reviews, 82 Mich. L. Rev. 1261, 1262–71 (1998) (defending student-run law reviews not only for the learning opportunity they present, but for their ability to “restrain[] legal scholarship to something ordinary people can understand”).

[7] James W. Harper, Why Student-Run Law Reviews, 82 Mich. L. Rev. 1261, 1271 (1998).

[8] Most notably would be Chief Justice Roberts, who commented on the change, stating:

There is a great disconnect between the academy and the profession. Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.

John Roberts, A Conversation with Chief Justice Roberts, C-SPAN (June 25, 2011), https://www.c-span.org/video/?300203-1/conversation-chief-justice-roberts, at 30:42.

This attitude shift can be credited to the changes in legal scholarship from doctrinal to scholarship focused on “interdisciplinary, theoretical, nondoctrinal” as noted by Judge Posner, a common critic of the student-edited law review. Richard A. Posner, The Future of the Student-Edited Law Review, 47 Stan. L. Rev. 1131, at 1133.

[9] Brian T. Detweiler, May It Please the Court: A Longitudinal Study of Judicial Citation to Academic Legal Periodicals, 39 Legal Ref. Servs. Q. 87 (2020) (noting the downward trend of judicial citations decreasing 70% since the mid-1970s).

[10] Harper, supra note 7, at 1262 (“The literature on student-run law reviews is almost universally critical.”).

[11] Id.

[12] Harper, supra note 7, at 1271 (explaining one attempt by George Mason University Law School to replace its student-run law review in favor of two faculty-led ones failed after students announced they would simply “run their own, ‘underground’ law review”).

[13] 2022 W&L Law Journal Rankings, WASHINGTON and LEE SCHOOL OF LAW, https://managementtools4.wlu.edu/LawJournals/Default.aspx (last visited Mar. 31, 2024) (ranking the peer-edited (faculty-led) journal Tax Law Review as 65th overall in terms of impact).

[14] Those two journals being the Tax Law Review and the Cato Supreme Court Review. Id.

[15] Richard A. Posner, The Future of the Student-Edited Law Review, 47 Stan. L. Rev. 1131, at 1133.

[16] Roberts, supra note 8.

[17] Id.; Harper, supra note 7.

[18] See, e.g., Griswold, supra note 1 (noting the first issue of Harvard Law Review stated its primary purpose was “to set forth the work done in the school with which we are connected,” but the editors of course “hoped” the “Review would be serviceable to the profession at large”).

[19] Given the striking veracity of Harper’s words, I must cite them in full:

If a faculty advisor took an active interest in the operations of the law review, the articles it selects, and the editing it does to them, this would stamp out about half the learning students get from law review. . . . Conducting a class that addresses the practical problems of law review publishing, and holding the hands of post-graduate students through all the law review publishing stages, is a little too parental and a little too likely to strangle “real” learning.

Harper, supra note 7, at 1290. As someone who has undergone this learning firsthand without faculty handholding, I speculate that being entrusted wholly with the publication of our volume is the primary motivating factor for learning. See, e.g., Griswold, supra note 1 (noting the first issue of Harvard Law Review stated its purpose was “to set forth the work done in the school with which we are connected,” but the editors of course “hoped” the “Review would be serviceable to the profession at large”).

[20] Id.

[21] Id. On a pragmatic level, navigating real-world conflicts and practicing management develops a student editor’s practical skills substantially more than any lecture-style course ever could. Id.

[22] See Neil Hamilton, The Law Faculty’s Ethical Failures Regarding Student-Edited Law Reviews, 23 No. 4 Prof. L. 34 (2016) (pontificating on the topic of student-edited law reviews as a whole and why faculty must act to reign in their “apprentices”).

[23] Harper, supra note 7.

[24] For example, the article-selection process could be made “double blind,” ensuring that the reviewing editor nor the author know the other’s name or school affiliation. See Hamilton, supra note 22. Perhaps there could be a return to more doctrinal scholarship. Or perhaps there are not any solutions at all. Perhaps this is the result of judges and justices having access to precedential authority thanks to research engines like Westlaw and LexisNexis, and they no longer need to rely on secondary nonbinding authorities like law review articles. Thomas W. Merrill, The Digital Revolution and the Future of Law Reviews, 99 Marq. L. Rev. 1101 (2016).

[25] Hamilton, supra note 22, at 38.