Herrmann’s time-delayed comments about blogging reminded us of his practice of periodically surveying the law review literature for articles on our favorite topics. We did, and we found the exercise discouraging.
We first looked for recent scholarship on Wyeth v. Levine. We last reported on the scholarship on Levine in October. In days of yore – say, at the end of the 20th century or even the beginning of the 21st – when the Supreme Court issued an important decision, scholars would ponder the decision and prepare thorough analyses placing the decision properly in context. After the long publication process, many law review articles would start appearing a year later and provide fresh perspective on the decision.
Either that doesn’t happen much any more, or no one in the academic world finds Levine worth pondering. We found no significant new articles on Levine since our review in October. Now that everyone can provide instant analysis on blogs and even on-line law reviews, everyone can say whatever they want to say shortly after a decision appears. In many ways that is good – after all, we help hand out the Kool-Aid in the cult of instant analysis – but we wonder if we are losing the benefit of analytic pieces that have matured for a while before they are published.
We next looked for recent articles about Twombly and Iqbal and came across a symposium to be published this spring in the Lewis & Clark Law Review, which at least shows that some non-instant pieces are still appearing. The symposium’s introduction promises that “this set of symposium articles presents diverse interpretations of the Iqbal and Twombly decisions.” Not really. The authors of these articles are just a bunch of law professors. Not much diversity of backgrounds there. We then read or skimmed the articles and abstracts, looking in vain for a thoughtful, academic defense of Iqbal and Twombly. No diversity of opinions, either; the articles uniformly attacked these decisions. One piece contends that the decisions improperly have turned motions to dismiss into motions for summary judgment. Another one claims that Iqbal will cause a decrease in the enforcement of constitutional and civil rights. It is understandable that the articles concentrate on how Iqbal and Twombly apply in civil rights and employment discrimination cases, but not one of the 12 articles says much about the kind of cases we handle, even though about 20% of the cases filed in federal court are product liability cases.
We have some unsolicited advice for law review editors: if you want diverse interpretations of Supreme Court decisions, you should solicit articles by diverse authors with diverse backgrounds and opinions. Just as no one would call a law school faculty comprised solely of Federalist Society members who support originalism diverse, a symposium of articles written solely by law professors with the same point of view (here, attacking Twombly and Iqbal) isn’t diverse either. If you want real intellectual diversity, which benefits all sides in any debate, you need to reach outside of the academic world into the real world. Ask practicing lawyers who really do write complaints, prepare answers, file motions to dismiss, and endure the legal form of waterboarding called discovery. We have a lot to say.
It can be done: Penn professor Stephen Burbank invited Bexis and Herrmann to talk about Iqbal last year, and they had a lively debate. Unlike the participants in the Lewis & Clark symposium, they didn’t use fancy law professor words like trans-substantive, but they didn’t drool on themselves, either. In fact, they acquitted themselves rather well.
A recent article in the National Law Journal discussed a study finding a sharp decline in law review circulation. One reason cited by the study’s author was that “law reviews have come to view their primary market as academics and not practicing attorneys.” That’s too bad. We have learned from good law review articles, especially articles written for both academics and practitioners. We will keep looking for those good articles, and we will let you know when we find them.