SYMPOSIUM ON LAW REVIEW EDITING: THE STRUGGLE BETWEEN AUTHOR AND EDITOR OVER CONTROL OF THE TEXT:
BEYOND THE MOOT LAW REVIEW:
A SHORT STORY WITH A HAPPY ENDING
Copyright © 1994 Chicago-Kent College of Law
Chicago-Kent Law Review 1994 - 70 Chi.-Kent. L. Rev. 123
When I began teaching at the Chicago-Kent College of Law in 1982, it was publishing at great expense a law review that few cited, few professors would write for, and few, if anyone, read. For this reason, I dubbed it a "moot law review" in that students were working hard to produce a publication that mimicked "real" law reviews - that is, law reviews that contribute to intellectual discourse and the body of legal knowledge.
The fact that you are reading this page (and others in this issue) is evidence that the Chicago-Kent Law Review is no longer a moot law review. How this tremendous and unprecedented improvement came about is instructive for other law schools, for there are well over a hundred law reviews that could be called moot law reviews. And it is not the students' fault. No matter how hard they work, it is impossible for students to end a notoriously vicious circle: no professor will voluntarily consent to publish an interesting high-quality article in a journal that no one reads; and no one will voluntarily read a journal that lacks interesting high-quality articles. What follows is a brief history and assessment of the transformation of the Chicago-Kent Law Review. My objective is to show professors and students at other law schools that significant improvements to their law reviews are both feasible and desirable.
Due to the moot character of the Chicago-Kent Law Review, morale among the students members was low - especially as compared with our moot court teams who, with intensive faculty involvement, had been very successful in national competitions. Rather than work on a moot law review with little, if any, status, many of our best students thought they could better advance their careers by working on their G.P.A.'s or clerking for law firms. As a result, the school found it necessary to provide generous scholarships to induce the better students to become officers on the Law Review and course credit to induce others to become members. In effect, because so little prestige attached to working on a moot law review, students had to be paid to do so.
What separated Chicago-Kent from the hundred or more other law schools publishing a moot law review was that its faculty resolved to address the problem. In fact, faculty sentiment was strong either to radically improve the law review or to abolish it altogether. It was widely thought that we were spending large sums of money on a publication that affirmatively did damage to our academic reputation. Although Chicago-Kent was then in the midst of an intellectual renaissance, professors at other law schools who surveyed the contents page of our law review where nothing very interesting appeared might assume that nothing very interesting was happening at Chicago-Kent.
So in 1983, then-Dean Lewis Collens created a faculty committee chaired by Professor Stuart Deutsch to study the problem and formulate proposals. In addition to several faculty members, including me, the committee included the editor-in-chief of the Review and an alumnus who had served as editor-in-chief. A consensus quickly developed that a radical approach was needed. Perhaps a third of the committee favored abolishing the Law Review. The majority proposed the following: Instead of a general law review published quarterly, we would publish three specialty journals - an annual Seventh Circuit Law Review, an environmental law review published twice a year, and another specialty journal to be published twice a year, perhaps on computer law or intellectual property. The Seventh Circuit Law Review built upon a Seventh Circuit issue published annually by the Review that we thought was already successful enough to be worth preserving. Specialty journals were intended to highlight and complement our curricular programs as well as our faculty's expertise.
One of the more innovative aspects of the proposal was that all the different journals would be produced by a single law review organization whose members would be selected as before, either by grades or by a writing competition. Although other schools published specialty journals, none (as far as we could determine) did so in lieu of a general interest law review. Such specialty issues were deemed to be "secondary" law reviews. And none allowed students selected for law review to work for one or more specialty journals as befitted their interests. In addition, by making separate subscriptions available for each journal, we hoped that specialty journals could be separately marketed to libraries and law firms, thereby enhancing our subscriber base.
For those at other law schools who may wish to radically reform their law reviews, perhaps the most important aspect of this proposal is that it received the support of the student members of the Review. In addition to including the editor-in-chief on the committee, the committee held separate meetings with the officers and members of the Review and successfully conveyed to them the following message: The current state of the Law Review was not their fault; they could not fix it without faculty help; and it was in their interest that the Law Review be improved. To their great credit, they supported the reform effort, albeit somewhat guardedly.
After developing the plan for most of the school year and obtaining the support of the students, the proposal was presented to the full faculty. During the ensuing discussion, some faculty members objected to the appearances created by having no general-interest law review. It was, after all, a marked departure from convention. Several faculty members expressed uncertainty about the demand for specialty journals. The committee took the position that further research into demand for an environmental law review was needed as was research to determine the subject of the other specialty law review. However, before investing scarce faculty time in such research, we first wanted a faculty commitment to the basic concept. After a long and heated discussion, the proposal was defeated by a single vote.
The next year, the committee was reconstituted to consider other alternatives. The plan that emerged was designed to attack directly the problem created by the vicious circle described above: how to induce authors to submit high-quality articles to a law review that, to date, had no track record of publishing high-quality articles. We concluded that the following elements were essential to success.
First, there was a need to limit issues to symposia on topics about which scholars wanted to write. We had noticed that even some "moot" law reviews had published isolated symposium issues that had come to be quite well-read and well-cited1. Such issues can attract better contributions by more well-known contributors and a higher readership. From the standpoint of contributors, a symposium issue offers the advantage of providing authors with a forum to express their views on timely topics they might not attempt if they had to write an article "on spec" - that is, in the hopes that some law review board might accept it. From the standpoint of readers, professors are far more likely to search out and examine a whole issue on a topic that interests them - even one in a less prestigious law review - than to trek to the library to view a single article in any but the most prestigious of journals. And, since it is well known that symposium issues tend to receive wider attention than isolated articles, potential contributors are far more likely to participate in a symposium than they would be to submit an article to a lower status law review. Why not, we concluded, convert our law review to an "all-symposium" format.
Second, a surety of sorts in the form of a "faculty editor" was needed. Such an editor could solicit friends and colleagues to write for the issue, perhaps contingent on others accepting invitations. (Log rolling is an extremely effective tool in recruiting contributors2.) Moreover, since the reputation of the faculty editor was "hostage" to the success of the issue, this provided some assurance to prospective contributors that the issue would contain other interesting and prominent contributors. We therefore proposed that a faculty editor be selected to organize each symposium and write a foreword to the issue.
Third, we decided that the success of a symposium depended in large part on the connections of the faculty editor who could call upon friends and colleagues to contribute. With this in mind, we thought that prominent faculty editors from outside Chicago-Kent would have greater success soliciting contributors. Moreover, we thought that, were Chicago-Kent faculty to be eligible for faculty editorships, internal competition for the editorships might prove divisive. For both of these reasons, we limited the faculty editors to professors outside the school. For reasons I describe below, this decision proved to be a mistake that we quickly corrected.
Fourth, as an additional incentive to attract contributors, we believed that some financial remuneration was needed. Therefore, we proposed substantial honoraria for both faculty editors and for contributors. This was paid for by reducing the frequency of publication from quarterly to three times a year and, sometime later, by reducing the amount of course credit and scholarships available for students.
Fifth, we decided that contributors should consist largely, though not exclusively, of younger, up-and-coming scholars as opposed to senior professors. We thought that we would be more likely to obtain acceptances from such professors, that younger professors would take the task more seriously, and that we would increase the chances that the product would be fresh and innovative, as opposed to a rehash of previously published work.
Sixth, topics would be selected by a new permanent faculty committee with active participation by the editor-in-chief of the Review. However, we also thought that we would more successfully recruit faculty editors by offering them the opportunity to do a symposium on a topic of their choosing than were we to decide upon a topic and then search for an appropriate editor. The new law review symposium committee therefore focused its attention more on whom it thought would make a good editor than on the symposium topic they might choose.
Seventh, to enhance readership, we recommended that the symposia be promoted to interested faculty around the country. Initially we did this by mailing a separate brochure for each issue describing its contents to those professors teaching in the field. Eventually we found it easier and more effective to mail reprints of the table of contents (which included a synopsis of each article). Such reprints are relatively inexpensive when obtained from the printer as each issue goes to press.
Eighth, we needed to address the relationship between the faculty editors and the students. It was quickly decided that students would retain all of their traditional editing functions. Faculty editors would be available for consultation, to assure the overall quality of submissions, to prod recalcitrant authors, and to mediate conflicts that might arise between the students and the authors. All the students would give up under this proposal was the autonomy to select articles, and even this sacrifice by the students carried with it a fringe benefit. Students at moot law reviews can become frustrated when, after working diligently to decide which articles to accept, they repeatedly lose out to more prestigious reviews. Removing this responsibility from our editors, we reasoned, could improve their morale.
A lengthy written proposal listing these features and the reasons for each was then prepared and circulated to the full faculty. This time the proposal received its enthusiastic support. When implemented in 1987 with the inaugural "Symposium on Causation in the Law of Torts" in Volume 63, the success of the concept exceeded all our expectations. We were quickly able to attract outside faculty editors and contributors. And the work product we received was of a quality usually found in symposia published in top-ten law reviews. Almost overnight, as measured by the stature of its authors, the quality of their contributions, and the intellectual interest of the topics discussed, the Chicago-Kent Law Review became a publication of which the faculty and students could be proud and which enhanced the growing reputation of Chicago-Kent3.
A very rough count of Shepards citations to the Chicago-Kent Law Review before and after the format change bears out this assessment. Prior to Volume 63, the number of citations to any previous volume rarely, if ever exceeded 60, and often was considerably fewer. In contrast, to date, there have been 197 citations to Volume 63 (which contained only the inaugural symposium issue). Volume 64, the first volume devoted exclusively to symposia, has been cited 247 times. Moreover, a new study of Shepards citations to all law reviews including Volumes 63-65 (1987-89) of the Chicago-Kent Law Review ranks it 20th - behind the Ohio State Law Journal (at 19th) and just ahead of the Northwestern Law Review (at 21st) and the New York University Law Review (at 22nd)4. Thus, it is clear that the Chicago-Kent Law Review has entered the ranks of those law journals that make a substantial contribution to legal discourse. No longer is it moot.
Every aspect of our proposal worked as planned, with two exceptions. First, we found it was easier than expected to attract thoughtful contributions by senior scholars. Therefore, although we did not abandon our commitment to showcase younger scholars, from the first issue the mix of authors has included a higher percentage of senior well-known scholars than we initially anticipated. We believed that this change has also benefited the younger professors by increasing the attention paid to the issue in which their articles appear and the prestige of their company.
Second, we soon learned that our commitment to exclusively use outside editors was both undesirable and unnecessary. It was undesirable because outside editors were usually selected based on their previous relationship to a member of our faculty. This, and the fact that the Chicago-Kent professor who had invited the outside editor was on site, meant it often fell to our professors to resolve any problem or question that arose during production as well as to mediate disagreements between the outside editor and the students. Thus, the Chicago-Kent faculty member became a de facto co-editor, without receiving any credit or remuneration.
Moreover, limiting faculty editors to professors at other schools was unnecessary. Chicago-Kent faculty proved to be quite well-connected enough to attract contributors, and there were enough issues to fill over time to satisfy faculty demand for editorships. We therefore moved quickly to allow Chicago-Kent faculty to serve as faculty editors, though professors outside of Chicago-Kent are still invited to be faculty editors.
This shift to in-house faculty editors also produced an important unanticipated benefit. We found that editing a symposium issue on a subject about which we were expert (or wished to be) enhanced our status among our peers at other schools by affording us close contact leading professors in our field. It also served to move academic discussion in the direction we ourselves were interested in pursuing. I, for one, gained enormously from editing a Symposium on Interpreting the Ninth Amendment5 at a time when few had written on the subject and I was but a newcomer to the field. This project allowed me to get to know better or for the first time such scholars as Morris Arnold, Sotirios Barber, Tom Grey, Sandy Levinson, Steve Macedo, Michael McConnell, Andrzej Rapaczynski, and Larry Sager. It was awe-inspiring company. I believe that by virtue of its participants, this issue also contributed importantly to the new academic interest in the Ninth Amendment.
Still, we did discover a few unanticipated drawbacks of the "all-symposium" format. Issues require very long lead times to plan, and can only be produced as quickly as the slowest contributor. As a result of this and one extremely inefficient student board, the Review fell a full year behind schedule. This required several subsequent boards to produce extra issues to get us back on track. It was not a pleasant experience. Moreover, on rare occasion, solicited contributors fail to fulfill their commitment and drop out at the last moment. This requires that enough contributors be invited so that, should one drop out, the issue can still go to press with those that remain.
Should other law schools adopt the Chicago-Kent model? I believe at least three aspects of what we did should be widely copied. First, faculty should closely examine their school's law review with an eye to make improvements. Although as authors we like to complain about law reviews, as faculty members we are far too complacent about the work-product of our own reviews. Because students have only a brief tenure at the school, it falls to the permanent faculty to assess critically the law review program. Chicago-Kent faculty saw that, by reforming its law review, it could both improve its academic reputation and provide students with a substantially improved educational exerience.
Second, we were systematic and strategic in our development of alternative proposals. Each of the eight features listed above was articulated and actively debated. Third, students were involved in our planning from its inception. They provided extremely useful information about the operation of the Review and, by confirming for us their demoralization, they motivated us to persevere in the face of initial faculty resistance. These students then helped us advocate for our proposal both to the faculty and to other student members of the Review.
Another feature of the Chicago-Kent model deserves careful consideration by other schools. Many have long bemoaned the student-edited nature of law reviews. Yet wholly faculty-edited, peer-reviewed journals have their own drawbacks, not the least of which is a substantial drain on faculty resources. While this is not the place to rehearse the debate about student versus faculty-edited journals, the "faculty editor" feature of the Chicago-Kent model is a very attractive hybrid.
The faculty editor helps assure that law review articles reflect current academic interests, that articles are of sufficient quality, and that disputes between authors and students are amicably resolved. At the same time, all the traditional responsibilities of student editors are retained, save the sometimes discouraging and always time-consuming task of article selection.
In-house faculty editorship also produced a very valuable and unanticipated benefit. As a result of Chicago-Kent faculty editors working closely with the students, there has developed a tremendous feeling of collegiality between professors and student members of the Law Review at Chicago-Kent, displacing the student-faculty estrangement that often exists elsewhere. Creating a joint enterprise greatly enhanced both student perception of the faculty and faculty perception of the students.
Whether other schools should adopt the Chicago-Kent model of an "all-symposium" journal with all the features described above is a difficult question. To my knowledge, none have done so to date, though I have noticed a marked growth in student-organized symposium issues and the publication of papers from conferences organized by faculty. I would recommend that such a decision be based on a careful analysis by the faculty of its law review's track record of attracting quality articles. This may mean that, while a law review at one of the thirty schools in the "top twenty" ought to retain the traditional format, any other school should strongly consider a radical change, perhaps towards some version of the Chicago-Kent model. The ultimate question for a faculty to ask is: Do we now publish a moot law review? If so, the Chicago-Kent model is one proven way to provide both students and the wider academic community with the genuine article.
1. I would cite some examples were it not for the negative inference that these law reviews are otherwise moot.
2. When I was a law student, I approached Professor James Q. Wilson with the following proposition: if I could raise the money to pay him $ 1,000 (a very generous stipend in 1976) would he agree to give a paper at a conference on crime and punishment that I was hoping to organize? He said he would. (His exact words were, "I'm not irrational.") I then went to Edward Banfield with the same conditional offer, this time telling him that Wilson had already accepted. He too agreed. I then approached a foundation with the following proposition: if they agreed to fund the conference with a budget that included $ 1,000 honoraria for each paper author, I could get Professors Wilson and Banfield to participate. They agreed and I then returned to Wilson and Banfield to seal the deal. With their unconditional commitment and funding in hand, I approached a number of other professors (including Richard Epstein, Walter Kaufmann and Thomas Szasz) with the offer of a $ 1,000 honorarium and the fact that Wilson and Banfield would be participants. Most agreed. The scholarly product of this exercise in log-rolling can be examined in Assessing the Criminal: Restitution, Retribution, and the Legal Process (Randy E. Barnett & John Hagel III eds., 1977).
3. See Appendix, supra at 132 (listing preceding symposia, faculty editors and contributors).
4. See Chicago-Kent Law Review Faculty Scholarship Survey, 70 Chi.-Kent L. Rev. (forthcoming June 1995). In order to assess the rate and quality of faculty publications in law reviews, the Chicago-Kent Law Review first ranks law reviews by the frequency with which they are cited. There is a five-year lag on this assessment because it takes some time for citations to any volume to accumulate. Thus, when it first appeared in 1989, the survey based its ranking of law reviews on volumes published between 1980 and 1983. See Chicago-Kent Law Review Faculty Scholarship Survey, 65 Chi.-Kent L. Rev. 195 (1989). Although it initially based rankings exclusively on Shepards citations, the survey now also incorporates citations listed in the Social Science Citations Index.
5. See Symposium on Interpreting the Ninth Amendment, 64 Chi.-Kent L. Rev. 37 (1988). These articles and comments eventually became the core of 2 The Rights Retained By The People: The History and Meaning of the Ninth Amendment (Randy E. Barnett ed., 1993).