Saving the Constitution from Lawyers

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.