When writing my article with Amy Mashburn devoted to finding empirical support for the huge investment law schools make in legal scholarship, the silliest defense I saw was one by Richard Posner. He likened law review articles to salmon swimming upstream. As I understood it, some turn out to make it and some don't but that's the way the cookie crumbles. If we change the process, even the good swimmer may not make it.
Of course, Salmon have no choice. Plus, when they swim upsteam making it or not making it does not depend on the rank of the school they were once in. Instead it is quality of their effort. Perhaps I have misinterpreted Posner and what he is really saying is that articles in the reviews ranking below the top 20 are just floundering salmon.
But now here comes Cass Sunstein of HARVARD and other fame writing a defense of law reviews and legal scholarship or that is what the title would lead you to believe. Before I go any further, I want to tip my hat to his courage. Can you imagine the risk of asking a law review (if he had to ask) to print an article in defense of law reviews and putting the name Cass Sunstein on the piece. That takes double balls. And it really takes courage to label the writing with which he most disagrees as smug and anti-intellectual. (Actually he only says there is a whiff of anti-intellectualism but I could not figure out how to get that in one sentence.)
If fact, his defense is a bit puzzling. As I read it I kept thinking maybe the real Cass Sunstein, whose work I have read, learned from, and admired did not really write this. I mean it's a bit like seeing Ted Williams take a job as a carnival barker and making the points of his critics without knowing it.
Here are some of the problems. First is the fallacy of composition. The core of his argument is the example of seven book he refers to as some of the best recent law books. These books are all based on or derived from works published in law reviews. So, therefore, we should as he puts it "praise law reviews," Really? All of them, some of them, the top 20, the fourth review of the 177th ranked law school? Why would we praise law reviews on this basis? This is an echo of every critic of the article Mashburn and I wrote who has thought of an article that influenced something and cited it as defense of a terribly screwed up and expensive system. Not you too Cass!
Second, if we praise law reviews for containing the articles that led to the seven best books, what about the tens of thousands of articles that law reviews published that used up the time of students and professors, destroyed a few forests, and amounted to nothing except a line on a resume?
Third and this one it a real corker. Sunstein explains how each book was the result of prior law review articles. So you are probably thinking Professor A wrote something in one year and 5 years later Professor B added to the idea and then the authors of the 7 great books wrote their books. That is what I was thinking and actually looking forward to reading. Not quite. As best I can tell, as it turns out the books were compilations of articles and essays of the same authors.(I attempted to cut and paste the paragraph here but it only shows up as one word per line but it is the first full paragraph of page 4) Yes, the law professor recycling issue and definitely not standing on the shoulders of those who came before. It is not as though the law reviews were repositories of the great ideas and small treasures that were then picked up on and extended by others in subsequent generations. Maybe I have this all wrong. Perhaps he is just illustrating that some reviews published some articles that were good enough to be on the Sustein must read list had they been books in the first place. If so, so what?
It's like Sunstein missed the debate and then stumbled into writing a big non sequiter. Or maybe he was pranked into writing a defense by someone who did not explain the real issue. As far as I know, no one is lobbying for the end of legal scholarship or law reviews. The important and only relevant debate is about how much is too much. On this issue, he utters not a word about the possibility that we have overshot the mark in terms of investment, nor how we could make the system more rational, merit-based or accessible.
It's not as though he has forgotten that nothing is free. In fact, he devotes a good page and half to the costs of legal scholarship and concedes that most law review articles have very few readers and very little impact. [page 10].
Since the article is a "defense" it would be nice if Sunstein had defined what needed defending -- law reviews. legal scholarship, the writing style found in most articles? Perhaps just a more accurate title would help -- "Some Law Reviews Published Some Articles that Became Books that I Think are Important." I am pretty sure that is a better title.
By not being precise his worst sin is providing all future knee jerk responders to those who question the massive investment in legal scholarship with yet another mindless "See e.g." citation with the implication that it must be true because Cass said it and the Michigan Law Review printed it.
As for the fallacy of composition, the centerpiece of his defense is the description of seven well-know books that build on prior law review articles.
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