Iwent to law school with academic aspirations, thinking that I might pursue law and economics. But Arthur Leff had other ideas. In Unconscionability and the Code — The Emperor’s New Clause [hereinafter the Emperor], Leff revealed the law review article as a form of scholarly and literary expression. Then, in Some Realism About Nominalism, his devastating review of then-Professor Richard A. Posner’s book Economic Analysis of Law, Leff explored the system of values implicit in the economist’s utility-maximizing model of behavior. Along the way, Leff offered the parable of the widow and her orphaned children, thrown out of their home into a blizzard by a judge who finds that she defaulted on her mortgage. How awful, you say. Not so, responds Leff’s economist. Without swift justice, widows would have little incentive to save money for their mortgage payments, the value of their homes would decline, and they would lose the ability to gain access to capital markets. Leff’s economist asks, “What do you mean, ‘awful’? What have you got against widows and orphans?”
Encouraged by my chance encounter with Leff to look for an alternative to law and economics, I came much the same adventitious way upon the law of federal jurisdiction. Or, as the art critic Dave Hickey describes the human desire to impress ourselves upon the world, my own little flower to water.1 Reading Hickey’s collection of criticism in the book Air Guitar reveals parallels between the work of legal scholars and other writers and artists. For Hickey, many hands shape the art world: those doing the art, those buying and selling the art, those criticizing the art, and those dishing out grants and acclaim through institutions like the university and the foundation. There’s no such thing as pure or selfless art; it’s a mad scramble for attention, recognition, fame, and lucre.2 In the scramble, some artists emerge, and their work increases in value; others confront failure. Hickey sees failure (“certifiable, undeniable, disastrous failure”) as the “primary benison of mercantile civilization.”3 It tells the artist to find a new line of work or a new approach to the current line.4
Hickey’s account of the merchandising of art put me in mind of the market for legal scholarship. How do we measure greatness in legal scholarship and in a law review article, and how do we signal failure?
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Start with the faculty hiring and promotion system. Some folks don’t get a job offer; some don’t get tenure. Instead, they receive one of Hickey’s certificates of failure and an invitation to pursue another line of work. But while the tenure and promotion system can occasionally signal failure, it does not contribute much to the identification of greatness. Law faculties are famously generous; an initial hiring decision almost invariably culminates in a grant of tenure. Promotion committees select the friendly and well-disposed to review teaching and scholarship, with the result that tenure often means unobjectionable rather than transformative.
As in Hickey’s art world, institutional players help decide what counts as good or great in the world of legal scholarship. While legal scholars don’t face critics very often, they do confront something similar when they ask the student-edited law reviews to consider their work for publication. Much the way artists complain about their critics, legal scholars bitterly resent the assessments they receive from the students who decide what work will appear in the pages of the most prestigious journals. One colleague asks why children make decisions about publication that can make or break the careers of the authors. Another wonders why the Yale Law Journal’s editors ask her to help them assess others who work in her field but steadfastly refuse to publish her work. Yet another objects to the way law journals impose short fuses on expedited reviews to limit opportunities for more broadly marketing one’s article. Many complain about the editorial wrestling match that occurs after a paper has been accepted — some variant of the complaint about children up above.5
Some criticisms of the law review model of legal publishing hit home. Law review writing can deaden the writer, the editor, and the reader. Writers feel obliged to submit work within the framework of the standard law review article — much the way ice skaters once completed their compulsory figures. That means footnotes, and roadmaps, and extravagant claims of novelty — the latter often deployed in the version of the article submitted in the selection process and then strategically removed before publication to avoid professional embarrassment. That means elaborate editorial engagement with questions both important (what does the case really hold?) and trivial (should this comma be italicized?). In policing such matters of form, even the most brilliant student editors may lose their focus on improving and clarifying the legal argument. Writers and editors alike come away from the process wondering if it was worth the energy expended. Depending on their level of expertise, readers either bog down in the details or skip around adroitly to view the high points (the free skate, as it were) without slogging through the compulsories.
Read the full article at
https://harvardlawreview.org/blog/2025/09/looking-for-art-in-the-law-review-article/
