Saving the Constitution from Lawyers

Mr. Spitzer is Distinguished Service Professor of Political Science at SUNY Cortland. The author of a dozen books focusing mostly on the presidency and gun control, his most recent book is: Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning.

The profession of law is not only a necessary, but a virtuous enterprise. I'm no lawyer-basher: from a contract dispute, to murder, to divorce (note the rank ordering), a person would be a fool to proceed without the help and guidance of a lawyer. But when it comes to telling us what the Constitution means, it's a different story. And here I do not mean Constitution-related litigation. Once a case enters a courtroom, lawyers are indispensable. I'm referring to the academic world, and its public press equivalent. We tend to think that lawyers, by virtue of possessing a law degree (including maybe a course or two in Constitutional Law along the way), are qualified as experts who can tell us what the Constitution means.

But not so fast. For there are two profound problems with what the legal profession, as reflected in the writings and publications of law school faculty and their law reviews, offers as constitutional interpretation. The first is their training, and the second is the outlet for legal writing - law reviews.

Unlike every other academic discipline, lawyers are trained for advocacy, not objective examination. Their foremost obligation is to their client, not the truth. As political scientists Lee Epstein and Gary King note: "An attorney who treats a client like a hypothesis would be disbarred; a Ph.D. who advocates a hypothesis like a client would be ignored." Client loyalty, lawyer-client privilege, and zealous advocacy are synonymous with effective lawyering; truth-telling is not the primary goal. That doesn't mean it's OK to lie, but lawyers may, for example, encourage a fact-finder to reach a wrong conclusion to effectively defend the client. The lawyer's modus operandi is persuasion on behalf of the client, not a neutral presentation of facts.

In the scholarly world, the client isn't an accused criminal, but an idea or an argument. Yet legal academic writing is rife with Perry-Mason-like defenses of ideas that stretch arguments, disfigure or ignore facts, cherry-pick evidence, overstate conclusions, and use overheated rhetoric found in no other academic discipline - in short, all of the lawyer's tricks. It's fine in the courtroom, but deceptive, even dangerous, in the academic world. For example, lawyers are under no obligation to introduce evidence that undercuts their case - yet academics have an obligation to not only introduce contrary evidence, but to treat it with equal, even greater respect and care than their own cherished ideas. This is, in fact, a bedrock principle of all academic inquiry, from anthropology to zoology. Historians have railed against legal writers' mistreatment of history at least since the 1960s, calling it, derisively, "law office history." Some legal writers defend the application of courtroom methodologies applied to scholarship by calling it "advocacy scholarship." But the problem is that this phrase is an oxymoron. If it's advocacy in the legal sense, then it can't be scholarship.

The second problem with legal writing is its publishing venue, law reviews. This publishing realm has two traits: first, it is incomparably vast -- over 600 publications are attached to the nation's roughly 220 law schools. Second, virtually all law reviews are run by students. No other discipline has as many publication outlets, nor does any discipline allow students such control over its professional/scholarly publications. A century ago, when law journal writing was primarily case analysis and doctrinal writing, a large student role made some sense (although the system had its critics even then, such as Justice Oliver Wendell Holmes, who dismissed law reviews as the "work of boys"). In the modern era, however, it makes no sense.

The vastness of the legal publishing realm means that virtually any sort of writing can eventually find a publication venue; student control means that the work submitted is not, and cannot be evaluated on its academic merits. Student editors, though hard-working, diligent, and intelligent, do not possess, and cannot be expected to possess, the knowledge to evaluate submitted work on its merits. Yes, they can find missing punctuation and erroneous citations, but these minor technical errors pale in light of the fact that they are unqualified to judge whether a submission makes a legitimate argument, reflects proper knowledge of the field, does or does not duplicate existing writing, or even presents arguments and facts fairly and correctly.

Contrast this with the gold standard evaluative system of history and every other academic discipline, peer review. The reason for peer review is obvious: it is the best system yet devised to judge the merit of academic writing. Is peer review perfect or fool-proof? Of course not. But it has two unassailable advantages not found in student-run law reviews: first, publication decisions are made by professionals with subject matter expertise, which means that the submitted work can be evaluated on its merits; and second, the review process is normally blind, meaning that the reviewers' names are not known to the author, so that the reviewers can offer full and frank evaluations. The primary check against possible abuse by vengeful or unfair reviewers is knowledgeable editors who can weigh the relative merits of multiple reviewer comments, or solicit additional reviews if needed.

Student editorship has its advantages, most notably that it is an excellent learning experience for top law students. But that hardly justifies the system: second year medical students would learn a great deal by being allowed to perform open heart surgery - but who in their right minds would agree to an improved medical school education by sacrificing hapless heart patients? Yes, it's also true that law reviews publish many excellent articles. But this cannot be attributed to student editorship. Given the vast pool of submissions, law reviews would continue to publish many excellent articles if the publication decision were made by random drawing.

If law journal writing really didn't matter, then student control wouldn't matter, either. But law reviews do matter. In addition to serving the core goal of journals in every profession -- to advance scholarly knowledge -- they shape national policy debates, influence judges, legislatures, and even presidents. Consider two brief examples: many of President Bush's unprecedentedly expansive claims to presidential power trace back to a law review article from 1996 written by law professor and administration lawyer John Yoo; second, the Supreme Court is poised to embrace, for the first time in history, a new and ahistorical interpretation of the Second Amendment's right to bear arms that was born and legitimated in the pages of law reviews. Historians, political scientists, and lawyers must come to grips with the law's too-often-wayward constitutional theorizing.

comments powered by Disqus

More Comments:

John H. Lederer - 6/12/2008

I see I did say that law review editors were not responsible for "accuracy". Sloppy writing on my part.

Lest I confuse, law review editors are responsible for technical accuracy -- is the cite correct--but not for the overall accuracy of the author's opinion.

John H. Lederer - 6/12/2008

"As you say, law review editors are not arbiters of accuracy, etc."

Actually that is not the case, and if I left that impression, it was erroneous.

My knowledge is old (I was a law review editor forty years ago), but the one thing that law review editors are responsible for is accuracy.

Every cite in an article for publication is rigorously checked...for accuracy, for whether the cite stands for the proposition the author advances, for whether the decision has been questioned or overruled or the statute amended, and if appropriate for the existence of contrary decisions.

Law review editors are also responsible for the thought being understandably expressed. Many of the disputes with authors are in this area--law professors can easily compete with sociologists in the production of 112 word sentences in the passive voice if they try. The argument is generally over style or organization, not concepts.

What they are not responsible for is the quality of the author's thought process and conceptualizing, other than in choosing which articles are published. We had no problem publishing a "provocative" analysis that went against the majority thought on an issue.

Editors also submit their own notes (small articles) and/or articles . These they are 100% responsible for, but these tend to be rather pedestrian, generally illuminating a small area of the law or explicating a new judicial decision. Thus, for instance, my own published note was on "pendent jurisdiction in admiralty" analogous to a car shop article on "mixture adjustment of the Model 2025 carburetor".

Robert Spitzer - 6/12/2008

Thanks for your comments. As you say, law review editors are not arbiters of accuracy, etc., and that’s the essence of the problem. To place the burden for evaluation on the reader is to sidestep the very purpose of academic writing, which is to tell the reader something not already known, after having first submitted it to some kind of evaluative process that can judge whether it is worthy of publication at all. The Bellesiles case you cite is an example of a failure of peer review in history, and it’s notable in part because of its anomalous nature. In history, Bellesiles is the exception; in law reviews, Bellesiles-like writing is anything but unusual.

John H. Lederer - 6/12/2008

I think there is a basic misunderstanding here.

Unlike other fields law has a relatively small, known, and knowable assortment of primary sources.

The law review editor is not the arbiter of the accuracy, acumen, or intrinsic value of an article. The reader is. Typically, the reader has access to aall of the original material the author had.

There are certainly exceptions -- some law review articles are more like sociology, economics, or even history articles. But the vast majority, including those that most matter, represent the author's logic and thought applied to an accessible set of facts.

Few courts will rely solely on a law review article. They rely primarily on statutes and cases. They may accept or reject the reasoning of a law review article, but they are easily able to evaluate it. The authority is not the law review article but the underlying cases.

This is much different than, for instance, a book such as "Arming America: The Origins of a National Gun Culture" where the reader must necessarily rely on Michael Belleisles' integrity and that of his reviewers, absent a prohibitive amount of personal investigative work.

Gary Ostrower - 6/9/2008

There is no better argument supporting what Mr. Spitzer has written than the superb book by constitutional lawyer (yes, a lawyer) Jack Goldsmith. It is called "The Terror Presidency," published in September 2007. Goldsmith is a conservative lawyer who was selected by President Bush to head the Office of Legal Counsel in the Justice Department. The OLC is the office that advises the White House as to whether presidential policy is constitutional. Goldsmith lasted less than a year in the post, resigning when he found the advocacy attorneys (Yoo, David Addington, promoting policy that did violence to the separation of powers principle.
We need good lawyers to check the abuses of lawyers who disrespect the Constitution. Spitzer gets this just right.

Subscribe to our mailing list