As I (and others) have written before, legal education is at a crossroads. We recognize the need to prepare our students for the practice of law; to train them not just in case-law analysis but in the myriad skills needed to practice law. Among them is mastering legal writing and research.
One of the educational challenges facing those of us in higher education (not just law) is teaching writing. The entry of what is often referred to as the millennial generation into higher education has shown a marked decrease in prior opportunities to write, to be critiqued, and sadly, even to have been instructed in the basics of grammar, sentence structure and syntax. Certainly those of us in legal education know and understand those challenges and are working to overcome them. Not only that, we are working to understand the ways that our students communicate and the technology they embrace, as it is imperative that we adapt to the many changes in our society.
One of the communication shifts we are seeing is the very public sharing of private information (both intentionally and not), along with the ability of anyone to make their thoughts public. We hear about the degradation of journalism and the lack of support for investigative reporting in favor of the quick-soundbite world. The place for thoughtful reflection, for scholarly inquiry and serious study often may seem beside the point. In that regard, a question that pops up from time to time is what is the point of law reviews? What do they accomplish, and who (if anyone) reads them?
There is no way to answer that question globally. Some law review articles are so abstract as to be inaccessible except to the writer and a small subset of other scholars. As noted in a New York Times article, Chief Justice John G. Roberts Jr. said at a judicial conference, “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
Citations to law reviews by courts have decreased over the years as well. Yet, we still write them and believe them to be of use to the bar. And they are of use. Before the decision in Batson v. Kentucky holding that prosecution peremptory challenges cannot be used in a racially discriminatory way, there were law review articles written about the problem and its possible solution. Before Morgan v. Illinois, there were law review articles written about the one-sided nature of excusals for cause of those opposed to the death penalty but not those unable to consider anything else.
Did those articles cause the change? Well, that would be very hard to assess, but they certainly contributed to it, if in no other way than by giving capital punishment defenders and others a way to make an objection and create a record.
So, 50 years later, what has Valparaiso’s Law Review accomplished? The Valparaiso University Law Review has tackled such thought-provoking topics as the Americans with Disabilities Act, civil rights, cellphone use behind the wheel, immigration issues, child pornography, freedom of the press, con?ict of interest, regulation of the Internet, bioethics, and countless legal conundrums, addressing each with the rigor established under the vision of the first dean to establish the review, Alfred Meyer, and the early editors. The Women in the Law Symposium published in 1994 (Volume 28, Number 4) was a triumph. The issue featured lead articles by Sandra Day O’Connor, Ruth Bader Ginsburg, and Valparaiso University Law School professor JoEllen Lind. “The emergence of women in legal education and legal practice is probably one of the most important things that’s happened in the United States over the past 50 years,” Professor Emeritus Bruce Berner (and one of the editors of that first edition) says. “That issue of the Law Review received a great deal of play in other law schools,” he comments, saying others wondered why they hadn’t thought of this idea themselves.
And what can it accomplish in the future? Berner remarks that over the years, he’s seen the Law Review — and all law reviews — feature “fewer big-picture articles,” addressing instead more “particularized issues.” He attributes this shift to the evolution of law itself. The body of law has grown immensely, he points out, such that law becomes “not so much an overall philosophy and very much about maintenance of smaller ideas, codi?cations.” He also suggests technology has changed the productivity and perspectives of practicing attorneys. Editorial lineups of law reviews, Berner believes, do and will continue to re?ect more intensive specialization today.
Law review articles serve our students, our faculty and the bar. They also give a voice to new ideas and to changes big and small that the law should contemplate (or not). Valparaiso University Law School points with pride at its first 50 years, and looks forward to its next.•
Andrea D. Lyon is dean and professor of law at Valparaiso University Law School. She joined the school in July 2014. The opinions expressed are those of the author.