A simple reform to make law journals more useful. (revised)

Unlike law journals, many journals in other disciplines use a system such that there’s a bibliography at the end. All law reviews use a footnote system, and they invariably have many, many, many footnotes.

But bibliographies are superior in one respect for the reader: they allow one to do a quick quality check in fields in which one is familiar. One can simply flip back to the bibliography and see if the leading papers on the subject at issue are cited. If they are not cited, it is a good sign that the paper is not worth reading.

The ability of readers to do this is particularly important, I think, when the articles in even the top law journals are published on the recommendation of law students rather than peer reviewers. If something gets past peer review, one can safely assume it doesn’t display complete ignorance of the relevant literature at least much of the time, so the ability to skim the bibliography is less important. This is why journals like Ethics and Philosophy and Public Affairs can get away with not having reference lists at the end (as Matt pointed out in comments to the pre-revision version of this post).

Not so for law reviews, which are more and more often treading into interdisciplinary areas in which lawyers frequently have no formal training, and where the articles are reviewed by law students who also have no formal training in those areas. It’s easy for articles that repeat past work out of simple ignorance to appear in law journals. And when those articles often break the hundred-page barrier, those who are familiar with the work in the cognate disciplines have very little incentive to spend the time reading them unless there’s some reason to believe that real advances will be made.

For example: I recently saw an article in a major law journal on an interesting interdisciplinary topic, on which I have some not insubstantial knowledge. The article is, of course, ridiculously long, and the author’s name is not one which I recognized. Nor does the article have other indicia of competence (like an author’s PhD in the field at issue or an appointment in a really good school — in fact, the author is a practitioner). The abstract at the front claimed that it was a big ground-breaking thing, but didn’t make any claims about what was inside that couldn’t also be fairly made about various major papers published in political science since the 80’s. I would have loved to be able to skim a list of references to see if those various major papers were cited; if I could have, and if they were, I would have read the article. But it’s not worth slogging through a hundred pages of law review writing absent that kind of signal. So I didn’t read it. The author and the journal lost a pair of eyes, a potential citation in the future, and so forth.

Law review editors, are you listening? Require authors to add a separate list of references at the end. It doesn’t mean abandoning footnotes, it simply means including a reference list in addition. It’ll make it much easier for people to justify reading your articles. This will help reward good interdisciplinary authors and punish bad ones: an author who fails to cite any of the obvious references presumably is unfamiliar with them, and the article can be safely ignored. On the other hand, a list of references that includes the right stuff is a signal of the author’s interdisciplinary competence, and indicates to potential readers that there’s an actual payoff from reading.

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13 Responses to “A simple reform to make law journals more useful. (revised)”

  1. Daniel Goldberg Says:

    This is a good point, and I agree, but one thing I absolutely loathe about much academic work that isn’t legal in nature is their horrendous insistence on using endnotes. Goddammit, it is SO freaking disruptive to have to flip back and forth every damn time.

    Definitely have a list of references. But don’t lose the footnotes. You can do an easy author-date style with footnote citations and a reference list, and you can also do substantive work in the footnotes. That’s the ideal, as far as I’m concerned.

  2. Matt Says:

    Lots of academic journals also don’t require bibliographies at the end- neither Ethics nor Philosophy and Public Affairs do, for example, to take two that happen to be sitting near my computer. What I often do when I see an article that may or may not be interesting by someone I don’t know is skim the foot-notes. This lets me see not only who is quoted, but what’s said about them. Admittedly, this is a lot easier w/ a proper journal than a law review article, since the law review is almost certainly both way too long (with a tedious and pointless lit review that takes up 1/3 – 1/2 the article) and has way too many footnotes.

  3. Paul Gowder Says:

    Also, Matt, there’s no competence issue with Ethics and Philosophy and Public Affairs — they’re the top journals, and rigorously peer reviewed: there’s no reason to have to worry about an article in them not being worth reading.

    I think I’ll revise this post to make this clear, and actually start flogging it as a serious proposal for reform.

  4. flatte Says:

    Law professors are world class experts on copying and pasting. If we implement your system, they’ll simply go to a Harvard Law Review piece and copy and paste someone else’s bibliography, add/subtract a few, and the claimed utility of bibliographies will disappear very quickly. I prefer to read footnotes myself for quality check because they are harder to fake and bullshit is often evident – I can often tell, by just reading a few footnotes, if the author has any credibility by looking at who/what is cited and how it is cited for what propositions.

  5. James Grimmelmann Says:

    flatte: Law professors are world class experts on copying and pasting. If we implement your system, they’ll simply go to a Harvard Law Review piece and copy and paste someone else’s bibliography, add/subtract a few, and the claimed utility of bibliographies will disappear very quickly.

    Not all of it. Some failed attempts at interdisciplinarity are so out-of-touch that their authors wouldn’t even know which bibliographies to plunder for their own. I have an example in mind, one whose author seems simply not to have known that there was extant literature on the topic. Maybe it’s the one Paul is thinking of, or maybe it’s yet another major-law-review article with a wildly overclaiming introduction and no awareness of what had come before. I’m not a political scientist at all, but I could tell that something would seriously wrong with this picture. If the article had had had a bibliography, I could have figured it out sooner.

  6. Matt Says:

    Using the highly scientific method of looking at the journals sitting closes to my desk I find that, in addition to Ethics and P&PA, Utilitas, Ethics and International Relations, The Oxford Journal of Legal Studies, The Philosophical Quarterly, and the Journal of Moral Philosophy do not use a list of references at the end, while Ratio Juris and the European Journal of Philosophy do. Draw whatever conclusion from that one wants. I tend to think that skimming the foot-notes is more useful than just looking at the references, but recognize that this is harder in a law review for the reasons noted above.

  7. A Modest Proposal from Gowder | ESQ BLOG.Me Says:

    [...] Paul Gowder has a post entitled A simple reform to make law journals more useful. (revised): [...]

  8. Alice Says:

    Putting aside the question of how much the citation list (or whether the author has a PhD) really tells us about quality, is a separate bibliography really necessary in the digital age? Use Ctrl-F in the SSRN version, or Locate in Westlaw, and look for the names that no decent article on X should be without.

  9. Paul Gowder Says:

    James nails it. Even a copy-and-paste job at least requires the author to be aware of the existence of the leading works in field that s/he is mining, and that in itself would represent an improvement. Not as much of an improvement as peer review, but an improvement.

    Alice, good idea.

  10. C.E. Petit Says:

    This is yet another example of the divide between practitioners and academics in law. Ordinarily, when I am doing appellate work I jump right into the tables of authorities… which function exactly like the bibliographies desired. When I’m writing articles, I also create a table of authorities… if only for my own use (and because I come to the law from literature, which follows the much more logical bibliography-and-short-form system).

    As a writing tool, a full table of authorities is also helpful in ensuring that one is not overrelying upon a single source or three, unless that is the purpose of the piece: To discuss that one (or few) source(s). Conversely a too-”flat” table of authorities is also good way to avoid quote-mining.

  11. Paul Gowder Says:

    That is quite sensible indeed. Also, how on earth did you make your blog so readable in that weird format? It’s quite impressive.

  12. Peter Says:

    Very good idea, though I am a little doubtful that it will really produce better work in the end.

    As to work imported from another field, Paul, I expect you’re right: the usual problem there is ignorance about important or relevant work from the other discipline.

    As to legal scholarship, it’s rather a different story. Often the author has read little of what is cited in the notes — that is, has read little bits which have been located via word-proximity searching in westlaw. Whether the arguments of the cited articles have really been assimilated is another question. And so even seeing them appear on the list at the end is no guarantee that the author has benefited from reading them. My sense is that many law professors just go hunting for some authority, any authority, and if they can find it in the Hofstra Law Review or the Harvard Law Review, they just choose the latter.

  13. Paul Gowder Says:

    Peter, I fear you’re probably right about how a lot of legal scholarship is produced. I’m mostly concerned with the interdisciplinary stuff, and, blessedly, there is no search tool as powerful as westlaw for those other journals.

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