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February 11, 2013

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Ralph

As a 40+ year small firm civil litigation practitioner, the law review articles that I have found useful are those I encounter, during research, that discuss (and suggest solutions to) particular problems in existing law. Not many of us pick up a law review and read it cover to cover. If a journal tries to select topics with some sort of fictional "mass audience" appeal in mind, the needs of lawyers like me will not be met. Years ago I wrote an article for a practitioner's journal on just that kind of problem: it was later cited in a California Supreme Court case that dealt with that issue. To me, that's the key function of law reviews and bar journals: point out, and help resolve, existing dilemmas.

Tamara Piety

In my experience, both as an editor and as an author, I think there is a preference for national issues simply because it might bring a wider audience to the journal and thus to the author and the article. That doesn't mean that there is necessarily always a conflict between something that is of "mass appeal" or applicability and something that is of use to practitioners as Ralph suggests. If you are writing about a federal law -- for example, the ACA -- it will presumably be of use to any lawyer likely to litigate or otherwise deal with issues which touch on the ACA. But lots of practicing lawyers will not be dealing with health law issues, so if the only reason you are reading a law review article is for its use to your practice (or for that matter your teaching subject) few law review articles will be of use to all practitioners or to those teaching in every field. It seems like no one can write an article that will appeal to all practicing lawyers. Nevertheless, you can write about a subject in such a way as to automatically almost guarantee that its audience will be broader or narrower and I generally try to encourage students in their notes and junior colleagues to write for broad appeal. So if you write an article about a family law issue it probably will have many more journals interested in it (or if for the law review, more potential readers) if it deals with a family law issue at a level of broad applicability and collects and reports on the issue from the law in many jurisdictions. Conversely, if you write about the Idaho law of intestate succession as interpreted by the state supreme court of Idaho, it seems unlikely to find an audience beyond Idaho. This is what they call in marketing "narrow casting" and doesn't seem like a good strategy from the author or the journal perspective, although surely such an article would be of use to practitioners in Idaho. My sense is that such articles do get written by students who are writing law review notes/comments and by practitioners and get published from time to time but are far more likely to appear in bar journals than in law reviews. From the author's perspective narrow casting seems like a bad idea if you want to ensure that your article will have appeal to many journals and certainly to elite journals. But perhaps I don't know what you mean when you say "proposed harmonized state law." If you meant proposing a project to harmonize state law within the various states to each other (like the Restatements)then I don't know why this would have any less mass appeal than a proposal for a federal statute. If on the other hand this referred to a project to harmonize laws within a particular state on a specific subject then I do think it is likely to be viewed as too parochial, or to put it in less charged terms, simply of interest to fewer readers than many other competing submissions. This observation is one I have also heard about subject matter, that for example, tax law or bankruptcy articles are harder to place because they deal with subjects that don't have "mass appeal." I don't know if that is really the case, but I hear it repeated fairly often. In any event, no piece can be all things to all audiences. And if authors and reviews are trying to be "relevant," which is surely a legitimate goal, then it seems like trying to appeal to as broad an audience as possible is likely to tilt in favor of acceptance of articles dealing with national versus single state issues and subject matter like torts or con law over admiralty or bankruptcy. However, this is just a generalization that might not apply to particular articles. If at the end of the day what you are interested in is the law in a particular state or on a particular topic, even if it seems narrow, then that is ultimately what you ought to write about and it will probably be a better article as a consequence.

TJ

I think you are posing two slightly different issues. Both worth discussing, but different.

1. The first issue is whether there is a preference for discussing issues that are national in scope rather than localized to the details of an individual state. I think there clearly is such a bias. Many law reviews explicitly say that they are only looking for articles on issues that are national in scope. One can debate whether this bias is a good thing normatively (focusing on national issues will necessarily abstract away some important doctrinal details of individual state practice, and thus make the resulting articles less relevant to practitioners in state courts, which are the overwhelming majority of cases).

In fact, I've always found it slightly odd that there are few law reviews that attempt to exploit localized niches. In the commercial market, not everybody tries to be a national brand. By the same logic, a law review that tries to target only a single state would not get any blockbuster national articles, but it would also be the go-to reference for people in that particular state. I can only attribute the current phenomenon of every professor trying to write (and every law review trying to publish) national articles to over-confidence bias. Everybody thinks they should be a superstar, and nobody wants to settle for a local niche.

2. A very different question is whether, given an issue of national scope, there is a preference to address the issue through federal rather than harmonized state action. And I think there is also a bias towards federal solutions, but it is a bias that arises for a different reason that a bias towards issues of national scope. The reason for preferring federal solutions, I think, is an elitist attitude among both professors and law review editors, most memorably encapsulated by David Lat: "State court judges are ghetto." I'm not endorsing that attitude--I am point to it as an explanation for the phenomenon.

Lisa Larrimore Ouellette

I agree with TJ that there are two different issues here, and that on #1 there is a preference for articles national in scope. But on #2, I don't think harmonized state action is the only way to make state law national in scope (state law can be interesting precisely because it is not harmonized!), and I think there would be demand for outstanding state law work -- there just isn't much of it because most law profs focus on federal law. I love Abbe Gluck's project on state law statutory interpretation (see, e.g., The States as Laboratories of Statutory Interpretation, 119 Yale L.J. 1750 (2010)).

TJ

Lisa, I'm not sure that we disagree. There is of course a demand for outstanding state law work--there is always demand for outstanding work. The issue rather comes from your observation that most profs focus on federal law. The question is why that is the case. Now it might just be that profs have a bias for federal law but law review editors don't, or in other words that profs think that law review editors want federal law articles but in fact are sorely mistaken (another alternative hypothesis, that law profs don't cater to what law review editors want, is so obviously not true that I won't bother discuss it). But I just don't think law profs are collectively misreading the preferences of law review editors; I think that law review editors also have a preference for talking about federal solutions and not state solutions (on a ceteris paribus basis, i.e. for an issue that is national in scope and could be addressed at either level) is pronounced among both law review editors and law profs. Put in more concrete terms, the hypothesis is that an article that proposes a state law solution needs to be more outstanding than an article that proposes a federal law solution to the same problem to get accepted at the same journal. That is of course not to say that state law articles never get accepted; they just face a higher burden.

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