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
flyinghouses.blogspot.com. 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 Christopher.knorps@brooklaw.edu 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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