Law Review in the United States

“Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions – which is to say the practice of law – is beneath them.”

– Adam Liptak (New York Times)

Articles

Law review or journal articles represent another valuable secondary source in legal research. Law reviews are a scholarly publication, which are usually edited by law students in conjunction with faculty members. The reviews may contain lengthy articles and shorter essays by professors and lawyers as well as comments, notes, or developments in the law written by students. Some law reviews are dedicated to a particular topic and publish the proceedings of a wide range of panels and symposia on timely legal issues. The particular value of law reviews is the depth in which they critique and analyze a specific topic and the extent of their references to other sources. Additionally, law review or journal articles often focus on new or emerging areas of law and they can offer more critical commentary than a legal encyclopedia or A.L.R. entry. See below to learn more about finding and citing law review articles.

What is a law review?

Strictly speaking, a law review is a student-edited publication which is produced under the auspices of a law school and which publishes both pieces written by legal scholars and student-written articles and notes. Law reviews may be general in scope or devoted to specialized subject areas. Law review articles which are written by noted scholars may be citable as persuasive authority under some circumstances. They are always heavily footnoted and thus can serve as a tremendous resource for the researcher.

A large proportion of scholarly legal literature is published in law school law reviews.

Finding Law Reviews

One way to locate law review or journal articles is to use a periodical index. While law review articles can be located in full text databases on Westlaw or Lexis, periodical indices cover hundreds more articles than the full text databases making indices searching a more comprehensive search. A periodical index compiles information about individual articles that appear in journals, newsletters, and magazines. That information is then alphabetically organized by title, author, and subject. Some indexes also provide tables listing articles by statute or case name. Popular online legal periodical indexes include: the Index to Legal Periodicals and Books (“ILP”), Legal Resource Index (“LRI”), and Current Index to Legal Periodicals. There are also periodical indexes for international and foreign legal periodicals such as the Index to Foreign Legal Periodicals (“IFLP”). Please see the table below to learn about the coverage of each index as well as its availability online.

The following Index Coverage shows you the Source, Coverage, Online availability and location with Library of Congress call numbers:

• Index to Legal Periodicals and Books (ILP). Coverage begins in 1981 for periodicals, and 1993 for books. Updated monthly. The print edition’s coverage begins in 1908. In print, call number K 33 .I54. Available on LEXIS in the Index to Legal Periodicals database and on WESTLAW in the ILP database.
• Legal Resource Index (LRI). Coverage begins in 1980 and is updated monthly. In print as Current Law Index at K 33 .C87. Available on LEXIS in the Legal Resources Index database and in WESTLAW in the LRI database.
• Index to Foreign Legal Periodicals (IFLP). Coverage begins in 1960 and the electronic version starts in 1985. Call number in print is K 33 .I525.

Law review articles can also be found in full text databases. Both Westlaw and LexisNexis have databases containing the text of several hundred law reviews, some dating back to the 1980’s, and other dating back to 1990’s. It is possible to search in one particular law review at a time or to search in all the available law review publications combined. As mentioned, periodical indices cover more titles than full text databases, however, full text searches allow researchers a means of access to the publications beyond subject or title searching.

Law Review Circulations

No major law review had more than 2,000 paying subscribers in 2011, according a George Mason law professor Ross E. Davies, who studied U.S. Postal Service data. Starting in 2011, the postal system required law reviews to track and report their circulation numbers.

The Harvard Law Review remains the top journal, but its paid circulation has dropped from 10,000 in the ’60s and the ’70s to just 1,896 last year. While the Stanford Law Review website claims 2,600 subscribers to the print edition, postal records showed only 974 paid subscribers and a total 1,206 copies printed, Davies reported.

Law Review Article about Law Review Journals

Gerald F. Uelmen is a professor of law and former dean at Santa Clara University School of Law (2010)

Law Review Citations

In 1980 the California Supreme Court reviewed a tort claim filed on behalf of women afflicted with cancer because their mothers had taken diethylstilbestrol (DES), a synthetic estrogen, during pregnancy. But, 20 or 30 years after the fact, the plaintiffs could not identify the manufacturer of the DES in question. How could the liability of any individual manufacturer be determined? Justice Stanley Mosk found the answer in a student note published in the Fordham Law Review, and so a law student’s advocacy of market-share liability became the law of California (Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980)). Likewise, when then-Associate Justice Roger Traynor wrote his seminal concurring opinion in Escola v. Coca Cola Bottling Co. (24 Cal. 2d 453 (1944)), he cited 15 law review articles that discussed various aspects of strict liability for manufacturers.

During California’s legal “golden era” of the Gibson and Traynor Courts in the 1950s and ’60s, law reviews were cited with increasing frequency. In a classic study of the authorities cited in California Supreme Court opinions, Stanford law professor John H. Merryman counted 164 law review citations in the court’s 1970 opinions, a “sharp increase” over previous years (Merryman, “Toward a Theory of Citations,” 50 S. CAL. L. REV. 381 (1977)).

I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six. This despite – or perhaps because of – the fact that law reviews have tripled in number since the 1970s. The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley’s alone publishes 14, while Stanford and UC Hastings each publish 9. Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes. But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.

Back in 2002, California Supreme Court Chief Justice Ronald M. George and Associate Justice Janice Rogers Brown got into a bit of a dustup over the citing of student-authored law review notes in the court’s opinions. (See People v. Mar (28 Cal. 4th 1201 (2002).) After the Chief cited a student law review note on whether courts can, as a precautionary measure, require defendants to wear electric stun belts, Brown wrote a dissent with a snotty comment: “Were this court to take [courtroom security] seriously, one would hope, with the resources available to us, we could find a better means of informing ourselves than by relying on such secondary sources as a student comment in a law journal and a Progressive magazine article that bares its heart in its subtitle-Stunning Technology: Corrections Cowboys Get a Charge Out of Their New Sci-Fi Weaponry. … A high school student who turned in a research paper with a bibliography like that would be unlikely to get high marks for either the distinction or balance of the authorities cited.” (28 Cal. 4th at 1232.)

Chief Justice George responded with a modification to his footnote citing the student note, which read in part: “The St. Mary’s Law Journal comment cited by the Court of Appeal is a lengthy and well-researched article that has been cited in a number of prior judicial decisions. (See, e.g., Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1234 (9th Cir. 2001); Wrinkles v. State, 749 N.E. 2d 1179, 1193 (Ind. 2001).) Its factual description of the REACT stun belt and its operation, of the manufacturer’s promotional materials, and of the instances in which the stun belt has been activated are consistent with descriptions reported in numerous other articles.”

“Of course,” George later added, “it is customary for the opinions of appellate courts to include citations to the published work of student authors.” He then cited an opinion in which Justice Brown herself had cited three student notes in the same footnote (28 Cal. 4th at 1215 n.1).

Since four of the six California Supreme Court opinions I found that cited law review articles were authored by Chief Justice George, I asked Jake Dear, the court’s chief supervising attorney and George’s head staff attorney, for his take on how useful these publications are. Dear, himself a former editor-in-chief of the UC Davis Law Review, replied: “In the past two decades, I’ve included in my drafts very few cites to law review articles or notes because, frankly, I find very few to be relevant or useful to the issues that confront the court.”

And when Dear did find a useful article, it was just as likely to be authored by a student as by a law professor. This left him with the distinct impression that “many law professors do not deign to write anything of practical use, but instead leave such pedestrian matters for students.”

Citing to Law Reviews with Bluebook

Bluebook Rule 16. See e.g., Paul Butler et. Al., Race, Law and Justice: The Rehnquist Court and the American Dilemma, 45 Am. U. L. REV. 567, 569 (1996).

Law Review Articles: Not for practicing lawyers and judges

Recently, the staff of the Cardozo Law Review surveyed articles in five leading law reviews: California (UC Berkeley), Columbia, Harvard, NYU, and Yale. Comparing what was published in 1960 with what was published in 2000, the editors assessed articles as “practical” if they addressed doctrinal questions of law or concrete solutions to relevant legal problems, and “theoretical” if they related to abstract legal issues or focused on the intersection of law and other disciplines. The count for 1960 was 48 practical, 21 theoretical. The count for 2000 was 6 practical, 68 theoretical. To some extent, this trend reflects the hiring patterns at law schools across the country, where a PhD is valued more than years of professional practice. Which raises an obvious question: Why do we now entrust the training of lawyers to professors who were so eager to leave the practice of law behind?

At the University of Chicago, law professor Brian Leiter produces much-watched law faculty rankings that measure “scholarly impact” by the number of citations in law reviews rather than in court opinions (see www. leiterrankings.com). So, in effect, the scholarship that these highly ranked law professors churn out is for other law professors to read.

In another navel-gazing exercise, Fred R. Shapiro measured the 50 most-cited law review articles by counting their citations in subsequent law review articles. The winner was Gerald Gunther’s foreword for the Harvard Law Review analysis of the U.S. Supreme Court’s 1971 term (Shapiro, “The Most-Cited Law Review Articles,” 73 CAL. L. REV. 1540 (1985)). In an equally exciting sequel, he compiled “The Most-Cited Law Reviews” (29 J. LEGAL STUDIES 389 (2000)).

At the top of the list was the Yale Law Journal. By coincidence, Shapiro is a librarian at Yale Law School. (For a tongue-in-cheek critique of Shapiro’s work, see Balkin & Levinson, “How to Win Cites and Influence People,” 71 CHICAGO-KENT L. REV. 843 (1996).) With all due modesty, though, I must confess that it was my own entry into this competition that ran away with the title of most-cited law review article of all time. At last count, I had 8,407,309 citations in law reviews. I achieved this remarkable feat simply by titling my article “Id,” and including an instruction that the article could be cited simply by title, without any reference to author, volume, or page numbers (see 1992 BYU L. REV. 335 (1992)).

Of course, there are still a few law professors who would rather publish for practicing lawyers and judges than just for other professors. But given the way the academic game is played these days, they do so at their peril – particularly if they are seeking tenure. Still, law reviews are in no danger of disappearing anytime soon. After all, big law firms and elitist judges continue to demand “law review experience” as a prerequisite for hiring. The publication of student notes also provides a vehicle to enhance badly needed writing skills for barely literate law students. But in terms of contributing to the profession, most law reviews are simply a waste of trees.

The “Greatest” Law Review Articles Ever Written

by Gerald F. Uelmen

• “The Jurisprudence of Yogi Berra”, 39 Coauthors, 46 EMORY L. J. 697 (1997). Each author demonstrates the legal acumen of a Yogi quote.
• “The Common Law Origins of the Infield Fly Rule”, Aside (William S. Stevens), 123 U. PA. L. REV. 1474 (1975). A classic parody.
• “The Top Ten Politically Correct Law Reviews”, Arthur Austin, 1994 UTAH L. REV. 1319 (1994). An insightful review of the law journal articles that started the current trend.
• “My Pizza with Nino”, Alex Kozinski, 12 CARDOZO L. REV. 1583 (1991). Kozinski at his irrepressible best.
• “The Wrong Stuff”, Alex Kozinski, 1992 BYU L. REV. 325 (1992). Practical tips on how to lose your appeal.
• “Lawsuit, Shmawsuit”, Alex Kozinski and Eugene Volokh, 103 YALE L. J. 463 (1993). (But I thought of it first. See Uelmen, “Plain Yiddish for Lawyers,” ABA JOURNAL, June 1985, at p. 78.)
• “Legislative and Judicial Dynamism in Arkansas: Poisson v. D’Avril”, Jasper Bogus McClodd and Pepe Le Peu, 22 ARKANSAS L. REV. 724 (1969). An April Fool’s joke by Justice George Rose Smith.
• “Fundamental Principles of American Law”, Patrick McFadden, 85 CAL. L. REV. 1749 (1997). Finally, a source we can cite for the obvious.
• “The Bard and the Bench: An Opinion and Brief-Writer’s Guide to Shakespeare”, Robert W. Peterson, 39 SANTA CLARA L. REV. 789 (1998). A Shakespeare quote for every legal occasion.
• “A Critique of Judicial Humor”, George Rose Smith, 43 ARKANSAS L. REV. 1 (1990). The real master at work. Alex, eat your heart out.

Critique

Professor Hibbitts defends to react to the historical criticism of student-edited law reviews by encouraging law professors finally to “[e]scape the strait jacket of the law reviews by publishing their own scholarship directly” on the Internet.

In the paper “Reassessing Professor Hibbitts’s Requiem for Law Reviews”, Henry H. Perritt, Jr. wrote:

“The principal shortcoming in Professor Hibbitts’s argument is in his under valuation of elements of value other than the physical production of a printed work. It is the selection and editing that makes the publishing process valuable; not the printing press and the bindery. Indeed, the greatest risk of new information technologies is that by reducing barriers to entry associates with reproduction and distribution, the signal-to-noise ratio obscures the place of carefully selected and edited materials.

The details vary from law review to law review, but typically, an accepted article is edited three times, once for technical compliance with the Bluebook manual of citation, once for substance and clarity, and again by a senior editor. Every citation is checked to confirm that it supports the proposition for which it is offered. The author sees the article at least twice during the process, once after the manuscript has been edited, and again at the galley or page proof stage. (…)

Now, consider the typical electronic publishing process on the (Internet) (…) While this process is certain to put more material into the domain of legal writing, it is also certain to reduce the average quality of that legal writing because no rejections will occur. This is not a good idea. It may be desirable to use the Web as an additional mechanism for hosting works in progress for comment, but not for replacing the current law review mechanism. (…) Even when law reviews move to the Web, they should continue to do at least as much selection and editing as they do now.

A separate issue is whether editing should be done by law students or law faculty. Respectable arguments can be made that some contributions to the literature could be appreciated better by experienced faculty members as opposed to law students, although one can make an equally persuasive argument that good writing can be appreciated by those without unusual levels of specialized education and experience.

Everyone who writes occasionally gets annoyed at the apparent obtuseness of an editor, but that happens with seasoned editors as well as neophytes, and I must confess, is as often the author’s fault as the editor’s.

In any event, law student editors are likely to work much more cheaply than law faculty editors, and there is no such thing as a free lunch. There is no empirical support for the idea that the market would support law reviews at ten or more times the present price, and that surely reflects the relative opportunity cost of law professors, who do a lot more writing than law students. Careful selection requires that a submitted work be carefully read, and reading takes as much time regardless of whether the publication method is electronic or paper-based. Similarly, careful editing is indifferent to the technology used. (…)”