Monday, May 21, 2012

Negligent Infliction of Emotional Distress: No. 12: Law Review, Journals, and Blue-Booking

As we come to the close of another productive year at BLS, 1Ls once again huddle into the library at 9 AM on a Saturday morning to pick up their journal writing competition packets.  They are not supposed to have any idea of “the law” on their topic, and they are supposed to learn it based upon a limited set of materials, and get it right, or lose.  You are not allowed to do outside research (or, outside research is not required?), and I seriously question the degree to which “cheating” occurs here, but that is another column for another time. 
                2Ls this year will remember last year’s painful topic on tax apportionment of franchises that have more than one branch in a state.  I came up with a brilliant argument that it was not the mortgage underwriters’ labor that should be taxed by Ford Motor Credit Company, but rather, it should be the labor of the salesmen, who –it is true—do make a sizable part of their wages from commissions of sales (which may have different tax implications), but are responsible for the purchaser’s initial seeking of the loan.  The labor they expend over two or three days was far more “valuable” than the underwriters estimated time of twenty minutes to “put the loan together.”  Perhaps this was an incredibly stupid conclusion to reach for this case comment, but it appeared to be original, concise, assertive, and reasonably well-cited (I will avoid a deep discussion of the “?’s” I put into my endnotes to stay within my word limit).  And then the fateful day came when people began receiving their phone calls.  And I slowly realized that, after dropping beneath the 50% mark in the class, and failing to make moot court, I was not going to be on a journal.  Being a writer (and having improved from a B to an A in Legal Writing between semesters), the one thing I wanted out of law school more than anything else was denied me, and it hurt.
                So I turned away and laughed with derision at the beginning of 2L year, when all I heard for a few weeks were complaints about “pre-emption” and “not knowing what to write about.”  I said, “I wanted it as much as anyone, and you got it, so you better shut up.” 
                Of course I never said that to their face.  But law students that complain about not being able to find a topic to write about are a perfect example of the whiny types that flood law schools across the nation: let’s complain about everything that’s not perfectly suited to our needs—because, we’re not supposed to be creative.  These students need not concern us, for pre-emption is, again, a much bigger topic.  However, law students that complain about the process of becoming a member of a journal and the responsibilities that membership and/or publication entails, may have a good claim for negligent infliction of emotional distress—for few other activities may be as tedious and inconsequential as this.
                Blue-Booking is the first bane of existence.  “The central function of a legal citation is to allow the reader to efficiently locate the cited source.” (THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION, “General Principles of Citation,” at 1 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010)).  Great!  How about this?  “Because of the ever-increasing range of authorities cited in legal writing, no system of citation can be complete.  Therefore, when citing material of a type not explicitly discussed in this book, try to locate an analogous type of authority that is discussed and use that citation from as a model.  Always be sure to provide sufficient information to allow the reader to find the cited material quickly and easily. (See id.).  Even the Bluebook recognizes that its system cannot be comprehensive.  One could question why we need a whole other separate citation system apart from those already in existence, but I’d rather ask a more interesting question: what is “authority?”
                Just because I earned a J.D. from Harvard, just because I made their Law Review, just because I clerked for a Federal Judge, just because I worked at a white-shoe law firm, just because I published a few articles, and gained some kind of respect in my field, I might seek a career in academia and publish and then I will have become “an authority.”  Or, (less hoops) if I become a judge (or a law clerk), and I write an opinion, I become an authority.  However, writing about one’s own life has no place in a law review article, even though I may be considered an authority on my own existence.  “You’re not allowed to have any original thoughts,” people often say.  It’s too likely you come off sounding like an idiot who has not deeply canvassed the law if you don’t cite to authority for every proposition you introduce.  And yet, you must do a pre-emption check, and make sure that your topic has never been written about before. 
                My argument is that all journals should be abolished at every law school except for one Law Review.  I mean no disrespect to my friends on the other journals (and indeed, there is no qualitative difference in intelligence, so far as I can tell), but membership is hardly prestigious when 20-25% of the class gets on a journal.  When you’re one of the few that’s put in a good faith effort for every honor they could get, and you lose, and lose, and lose, you think you’re doing something wrong.
                Memo to disaffected law students: you’re not doing anything wrong.  It’s an imperfect system.  Once all journals are abolished, we will only produce the amount of articles that we “need.”  We won’t have a tidal wave of articles on every conceivable legal topic known to mankind, only to be revised to make an alternative conclusion acceptable when a case like Citizens United comes along.* 
                Me, bitter?  Maybe—but I proudly write on my name card, whenever I sneak into a journal event, “NOT A MEMBER OF XXX JOURNAL; FOUNDER OF MEP.”  There are other ways to make a positive contribution to this school than to be one of the hundred Bluebook Slaves in your class.  If you don’t make it onto a journal you should make fun of everyone who is.  Not only will you make yourself feel better, but you will be right that it is all-too-often nothing more than an exercise in extremely-refined masturbation.  Better yet—start, or join, a student organization that is devoted to sitting around and making fun of journal articles.  Call it the Brooklyn Law School Journal of Rejects, put out one volume per year, and write boldly original articles that are sloppily-blue-booked (because no one really cares about that anyway—see Posner's article "Goodbye to the Bluebook" for an hilarious evisceration of the stupidity of elitist citationism) and written for the Us Magazine crowd—people would dig it.    
                Maybe a lot of this is coming out wrong but here is my main point: as long as you are proud of what you produce, that is all that matters.  If you do make a journal, and you slave away for months on your note, and you find out that, unfortunately, you won’t be getting published, the satisfaction you derive from the process should be your reward.  Good luck, 1Ls.   If it doesn’t work out for you, join the BLS Journal of Rejects.  My 14,000 word, 40-page, 120-footnoted UCWR Employment Law paper gets to be in volume #1.  And I also promise to accept ONE failed competition submission from this year.  Open notes now being accepted.** (***).    

*The complaint often leveled at journals is the glut of faculty scholarship—not student scholarship.  This does not change the rationale behind my proposal to abolish all journals but one.  The only question is whether faculty members are compensated for publishing, or if retention of their job is contingent upon a steady stream of publications.  Encouraging a greater amount of original student work rather than faculty might be one possible reform.

**While this is a legitimate call for Open Notes for the BLS Journal of Rejects, 1Ls should be made clearly aware of two things: #1- My friend, who did not make into a journal, revised his competition submission a little bit, entered it into a competition, and won—so don’t trash your submission unless you are absolutely certain it is a complete failure.  #2– Open Notes are accepted by all 4 journals here—the Law Review is the most unforgiving (with the same deadline, around January 20, for Open Notes as for “member notes”) and the Journal of Law and Policy provides the generous extension of June 15th

***Submissions are also being accepted for the BLS Advocate.

               Christopher J. Knorps is a 3L.  He enjoys studying bankruptcy law.  He runs the blog  This summer he is in Chicago.  Next year he will institute the Monthly Expense Project, serve as an upper class delegate on the SBA, and serve on its career services committee.  He will also be filming a Batman remake.  Please e-mail him at if you have complaints or are interested in participating.  You may also start a passive-aggressive comment fight but only if you promise not to be lame or mean about it. 

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