The Next Iteration of Legal Scholarship

Legal Scholarship

By Kevin Frazier

Law reviews–legal publications edited by law school students and the main outlet for articles written by law professors and other legal scholars–may have outlived their utility. Still, they not only persist, but continue to expand in number and volume. The time has come to stop relying on law reviews as the dominant source of legal scholarship.

I have experienced law reviews from two positions–first, as a member of two journals during my time at the UC Berkeley School of Law; and, second, as an incoming Professor of Law at the Benjamin L. Crump College of Law. Those experiences jointly informed my conclusion that law reviews need to come to an end. From my time as a student member of a law review, I learned that whatever educational value they provide to students can be made available to more students and at lower cost to the legal community and, by extension, the public. And, as a legal scholar who has published articles in numerous law reviews, I have come to understand that the minimal value of any one article to the development of the law does not justify the immense costs tied to the publication of that article.

A review of the traditional justifications for law reviews confirms my conclusion that now is the time to end law reviews as we know them today.

Traditional Justifications

One traditional justification is that students rely on law review participation to signal to elite employers–especially judges–that they are the creme de la creme of their law school class. Yet, this signal is only afforded to certain types of students. The students who “earn” such participation tend to possess the attributes you’d expect–White men dominate the rank of Editor in Chief. Moreover, it is increasingly unclear that law review participation provides any meaningful skill development. Student-editors spend hours checking citations and quotations–tasks that will soon (if they have not already) be completed by AI and other modern tools.Employers supposedly rely on law review participation to provide useful skills to future attorneys. Yet, at least according to one Bloomberg survey of practicing attorneys, law review participation can no longer be counted on to ready law school students for the practice of law–“[f]ewer than 1 in 4 practicing attorneys said that the incoming attorneys to their firms who had been on law review were better prepared to practice law than those who weren’t.”

Professors rely on law reviews to publish their works and signal their scholarly capacity to their administrators. Yet, of the thousands of law review articles published by around 700 law reviews every year, the vast majority of those articles will never be cited in a judicial opinion or another piece of legal scholarship. In fact, it is likely that most law review articles go unread by anyone other than the author’s research assistant and the students assigned to edit the piece. This exercise of publishing for the sake of publishing comes at immense societal costs. Consider that 43 percent of law review articles are never cited in a judicial opinion or even another piece of legal scholarship.

Stop the Perpetuation

Law schools expect professors to spend about a fourth of their time on scholarship (again, scholarship that will likely go unread), which amounts to at least $240 million in salary dollars. This subsidization of scholarship poses significant opportunity costs. Imagine if professors spent that time and money on tasks more tailored to the development of the law. For instance, what if professors were assessed on their pro bono activities, such as time spent assisting their school’s various legal clinics, rather than their legal scholarship.

The traditional justifications for the existence of law reviews no longer have empirical support. To the extent law reviews connect students to prestigious opportunities, they do so only for a handful of students who likely already had such a connection. To the extent law reviews educate students, the days of such education are limited in light of modern technology. To the extent law reviews serve as a platform for legal scholarship, they tend to produce content for the sake of content rather than quality works of legal research that will serve any societal value.

Law professors claim to be some of the brightest minds when it comes to analyzing pressing societal problems. If that’s indeed the case, then we, law professors, ought to stop the perpetuation of law reviews and their grasp on our time, energy, and creativity–as well as on the time, energy, and creativity of our students. The stakes are too high for legal scholars to spend their time on anything other than educating the next generation of lawyers and contributing to the resolution of legal problems through active participation in legal work or, in some cases, legal writing.

The Next Iteration of Legal Scholarship

There is and will be a need for the brightest legal minds to analyze pressing legal problems. To meet that need, new institutions, publications, and positions should emerge–and would emerge if they did not have to compete with law reviews. Furthermore, this new approach to legal scholarship should abandon the practice of permitting scholars to explore whatever they think will trend on Twitter and garner the most citations. The next iteration of legal scholarship must prioritize research questions, foster interdisciplinary investigation of those questions, and publish findings in a way tailored to actually impact judges, lawmakers, and the public as a whole.

That’s the legal scholarship we need. What we don’t need is a system that siphons tuition dollars from students to fund faculty scholarship that students will, in turn, have to edit for free. It doesn’t take a law degree to see the lack of logic in that arrangement.

Students deserve the full attention of their professors. Law professors deserve to be assessed on their capacity to inspire minds, not generate content. Law schools must stop using law reviews as a means to bolster their reputation and instead allocate their resources to their primary purpose: preparing all students to think critically, write well, and, of course, to accurately and ethically apply the law.

Focusing on Students

Law reviews do not have to come to an end–students should still collaborate and publish their own legal analysis. However, the practice of using law reviews as an outlet for often-times duplicative scholarship from faculty members who have plenty of other work to do has outlived whatever utility it once served. Those professors who would prefer to abandon teaching and exclusively conduct research should go form the publications that will publish the next iteration of legal scholarship—and do so without imposing their operating costs on students.

About the Author

Kevin Frazier will join the Crump College of Law at St. Thomas University as an Assistant Professor starting this Fall. He currently is a clerk on the Montana Supreme Court.

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