"Socratic" teaching is one scandal of legal education; but the other is student-edited law reviews. Since arguments from authority carry a lot of weight, I'm pleased to see Dick Posner making the arguments! (Reminder: he will be guest-blogging here the last week of December.) An excerpt from Judge Posner's remarks:
"The system of student-edited law reviews, with all its built-in weaknesses, has persisted despite a change in the character of legal scholarship that has made those weaknesses both more conspicuous and more harmful to legal scholarship. Most articles by law professors today are still, as they were a century ago, rather narrowly, conventionally doctrinal. Typically, they criticize a key case or lines of cases as inconsistent with doctrine emerging from other cases. Good law students can evaluate and improve such articles today as always. But—and this is true not only at the leading law schools—many law faculty today have, for good or ill, broken the doctrinal mold.
"Their work now draws very heavily on sources other than legal doctrine, whether it is economics, history, political or moral philosophy, psychology, statistics, epistemology, anthropology, linguistics—even literary theory. The use of insights from these fields in analyzing law has given rise in recent decades to a cornucopia of interdisciplinary fields of legal studies ('law and . . .' fields), ranging from law and economics (the largest and most influential) to feminist jurisprudence and critical race theory. Except for the rarefied set of Ph.D.s who go to law school for a J.D., the disciplines on which these fields draw are generally not ones about which a law review editor will be knowledgeable, except by accident. This might not matter much if the analytical core of such fields were legal, but it is not. 'Law and economics,' for example, is the application of economic theory to law, not the application of legal reasoning to economics. So the law review editor cannot get much mileage from what he or she has learned about legal reasoning.
"Submissions in 'law and . . . ' fields magnify the bad effects of the inexperience of student editors and their failure to use peer review to separate the wheat from the chaff. Apart from acute problems of quality control, neither author nor reader is likely to benefit from the editing process. Because the students are not trained or experienced editors, the average quality of their suggested revisions is low. Many of the revisions they suggest (or impose) exacerbate the leaden, plethoric style that comes naturally to lawyers (including law professors)....
"The author is also likely to suffer, because the student editors, having a great deal of time and manpower to devote to each article, often torment the author with stylistic revisions. (These are to be distinguished from correcting erroneous citations; that is a genuine though modest service to scholarship.) To student editors, the cost of an author's time is zero, and the author is usually subjected not to one, but to two or three rounds of editing. And the editors do not limit their suggestions to style. On the side of substance, their especial preoccupation is with trying to maximize the number of footnotes, citations, and cross-references in order to create the impression that everything in the article is proven fact. The student editors also insist on inserting parenthetical summaries of cited references, even when the reference is to an entire book (e.g., Plato, The Republic (sketch of proto-communist society ruled by philosophers); Sophocles, Oedipus (play about mother-son incest)).
"THE RESULT OF THE SYSTEM OF SCHOLARLY PUBLICATION IN LAW is that too many articles are too long, too dull, and too heavily annotated, and that many interdisciplinary articles are published that have no merit at all. Worse is the effect of these characteristics of law reviews in marginalizing the kind of legal scholarship that student editors can handle well—articles that criticize judicial decisions or, more constructively, discern new directions in law by careful analysis of decisions. Such articles are of great value to the profession, including its judicial branch, but they are becoming rare, in part because of the fascination of the legal academy with constitutional law, which in fact plays only a small role in the decisions of the lower courts...."
We may go further: student-edited law reviews have been crucial for many of the most intellectually insubstantial developments in "legal scholarship" over the past thirty years: from Critical Legal Studies to postmodern legal theory; from the rise of armchair social science in connection with the "social norms" fad in legal scholarship to the new fascination with evolutionary biology in legal scholarship. Without the benefit of editors who had no pertinent disciplinary expertise, and no real scholarly or intellectual skills, none of these developments would have been as successful as they have been in the American legal academy. One still hears colleagues who should know better say of a teaching candidate, "His article will appear in the Yale Law Journal," as though that signified anything other than that the article will be visible, regardless of its quality. (In fact, as everyone knows, the majority of the articles that the Yale Law Journal and Harvard Law Review publish in a given year are intellectually worthless.)
In their honest moments, everyone in the legal academy knows that the real purposes of student-edited law reviews are the following:
(1) To provide a further sorting mechanism for legal employers trying to ascertain who the brighest law students are beyond the quality of the school and student grades (caveat: the best students are not always on Law Review);
(2) To provide slave labor to law professors too lazy to properly cite-check and document their articles;
(3) To provide some experiences of very, very modest educational value to students with respect to writing, editing and legal scholarship. (The bright students would be far better served by working with faculty on sustained writing projects--something Northwestern's law school has done better than just about anyone else.)
(4) To save the faculty the trouble of editing and producing a legitimate scholarly journal, in which some useful pieces of legal scholarship can still appear--though, these days the most useful scholarly work (most useful for practitioners, that is) appear in the less prestigious law reviews.
At the same time, the best interdisciplinary work now appears in one of the proliferating faculty-edited journals. The "elite" law reviews are largely left with the dross: mostly bad interdisciplinary work (some good stuff at the law schools where the law reviews consult the faculty), and an occasional useful article in constitutional law or some doctrinal topic vexing the courts. Is this really worth consuming hundreds of thousands of hours of time of the nation's best law students? Hardly.