Monday, June 04, 2012

The Practices of Law Reviews

Mark Tushnet

Recent posts on the articles most cited in law reviews, coupled with a long plane trip, lead me to some comments on other aspects of law review practice. One is about classification, the other about citation.

(1) I had a recent issue of the Yale Law Journal with me on the plane. The first item in the issue was an "Article" that ran to more than 85 pages. I suppose that the Journal's policy of "strongly encouraging" submissions that run to roughly 50 pages is subject to some flexibility, but the incentive structure created by the disparity between actual practice and articulated standards seems odd. Even more, the next item in the issue was an "Essay" running more than 130 pages in length. Again, the Journal's guidelines suggest that "Essays" are categorically shorter than "Articles," but apparently not always.

If not length, what distinguishes an Article from an Essay (in the Yale Law Journal)? The Journal's guidelines are too long to quote here, so I suppose you'll have to take my word for it that the long Article and the longer Essay are indistinguishable -- at least to me -- with respect to having "fully developed arguments," "style, tone, and voice," and the like. (The cynic in me thinks that the explanation of the labels is bureaucracy: The editors in the Essays department didn't have enough "real" Essays to work on -- or those in the Articles department had too many Articles -- so the managing editor assigned the submissions to even out the work.)

(2) The Essay has a discussion of Justice Samuel Chase's opinion in Calder v. Bull. It quotes what the authors call the "key sentence": "To maintain that our Federal, or State, Legislatures possesses such powers ... would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments." The authors continue, "Modern interpreters read this to say that these constitutional limitations would exist even if there were no express restraints. ..." But, they say, this is mistaken because another sentence in the opinion indicates that Chase's "point was different: that the legislature should not be 'presumed' to act contrary to these principles."

I apologize for the detail, but it's necessary to make a point about law review citation practices. I had thought that "sub-citing" meant not merely checking to see that the words quoted were actually on the pages cited, but meant "substantive" checking -- that is, checking to see that the words quoted actually supported the proposition asserted in the text. Here, though, the "presumed" citation refers to something five pages after the "key sentence," and the material is not naturally read as the authors suggest, to refer back to that sentence. Now, I'm not a prude about how one can use cases and the words in them, but I would have thought that a decent sub-citer would have asked the authors to lay out the reasoning connecting the citation to page 394 to the key sentence on pages 388-89. (My guess is that we're dealing here with authorial power and perhaps sunk costs: "Publish this as is, or I'll withdraw it.")

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