Of Law Reviews, the Printing Epidemic, and Elusive Scholarship—A Theme with Variations

by A. N. YIANNOPOULOS
Louisiana Law Review Annual Banquet
March 21, 2014
Juban’s Restaurant
Baton Rouge

Editor’s Note:—We are pleased to post Professor A. N. Yiannopoulos’s address to the outgoing and incoming editors of the Louisiana Law Review, Vols. 74 and 75, at the Review’s annual Spring banquet. His reflections are of vital significance to law review editors nationwide, and we have taken seriously his admonition not to print everything under the sun.  However, we wish to pay homage to him by welcoming him back to Ithaca and by posting his remarks, sans footnotes, on the Louisiana Law Review on-line Journal. Professor Baier’s Introduction takes you to the deep-blue waters of Mount Helicon and ends with the fitting lines of Kavafis’s poem Ithaca.

 INTRODUCTION
by
PAUL R. BAIER

Editor-in-Chief Emmy Gill, Members of the Board of Editors, Colleagues, Distinguished Persons, Interlopers, Ladies and Gentlemen:—

Do you know the Muses of Mount Helicon, who dance on soft feet about the deep-blue spring.  You will hear of Calliope in a moment.  Let me announce our honored speaker’s topic at once so as to keep you awake in anticipation:— “Of Law Reviews, the Printing Epidemic, and Elusive Scholarship—A Theme with Variations.”  How’s that for a law review post-prandial!  Hold your applause!

First, let me say a few nice things about Tulane’s Law School’s Greek God, a friend of mine—both civil and common—for forty years.

Do you know the “Hot Gates” of Thermopylae? Xerxes made heroes of its Spartan guardians for twenty-five hundred years. Thermopylae teaches law review editors courage in the face of deadlines. You must stand steady.  You must guard the gates of the Louisiana Law Review.  I mean W-114.  I salute its iron lady Melinda Braud.

Our speaker is lineal to Thermopylae’s heroism—born of Thessaloniki in the shadow of Mount Olympus.  Thence to Chicago under Max Reinstein; to Berkeley under Albert Ehrenzweig, to Cologne under Gerhart Kegel.  His learning is beyond belief:  a Master of Comparative Law and two Doctor-of-Law degrees.

Obviously, he is overeducated.

His heroism is his Olympian scholarship. Have you read his Spartan rebuff of a certain United States Fifth Circuit Court of Appeals judge published in the Louisiana Law Review—“Of Immovables, Component Parts, Societal Expectations, and the Forehead of Zeus.”  Read it.  You are back at the Battle of Thermopylae.  A Greek legal giant—a contemporary Lestrygonian—upholds the honor and morality of Louisiana’s Civil Code and devours a “confusing diatribe”—those are his words, and “a shoddy personal slur”—these are mine—in the Federal Reporter, Third Series.

In short, our guest of honor is a world-acclaimed guardian of the Civil Law;—and housekeeper of the Louisiana Civil Code!

Enough of Thermopylae and Spartan Guardians. What of Ithaca and Odysseus?  What of Athanassios Nicholas Yiannopoulos?

The other day in your Louisiana Law Review I called him Zeus.  Tonight he is Odysseus come home to Ithaca, come home to the Paul M. Hebert Law School, come home to the Louisiana Law Review.  Hold your applause!

On behalf of all of us who are seated at Volume 74’s banquet table, may I say with all our love, “Welcome home, A. N. Yiannopoulos.”  Hold your applause!

A word more and I am finished.  Do you know Konstaninos Petrou Kavafis?  He is a favorite Greek poet of Doctor Yiannopoulos—and Jacqueline Kennedy Onassis.

Let me finish with a few choice lines from Kavafis’s poem Ithaca. I pay homage to my great Greek friend with the fitting lines of Kavafis:

When you sail for Ithaca,
wish for the road to be long,
full of adventure, full of knowledge.
The Lestrygonians and the Cyclopes,
an angry Poseidon—do not fear.
You will never find such on your path,
if your thoughts remain lofty, and your spirit
and body are touched by a fine emotion.
Wish for the road to be long.
Many the summer mornings to be when
with what pleasure, what joy
you will enter ports seen for the first time.
Always keep Ithaca in mind.
To arrive there is your final destination.
But do not hurry the voyage at all.
It is better for it to last many years.
Ithaca has given you the beautiful journey.
Without her you would not have set out on the road.
Nothing more does she have to give you.
And if you find her poor, Ithaca has not deceived you.
Wise as you have become, with so much experience,
So much learning, you must already have understood what Ithaca means.

Ladies and Gentlemen:—Now it’s time.

Would you please get up and give our beloved Thanassi a rousing welcome home to LSU Law School!

[Standing ovation.]

Professor Yiannopoulos:—

Great Baier, You have the soul of Calliope.  You belong among the Muses of Mount Helicon yourself.  Your song touches my heart. Thank you.

Editor-in-Chief of the Louisiana Law Review, Members of the Board of Editors, Volumes 74 and 75, Distinguished Guests:—

Among the mistakes I have made in my professional life, two stand out.  First, when I was invited to join the faculty of the LSU Law School two centuries ago, my knowledge of American geography was minimal.  I looked at a diminutive Greek map and accepted the invitation convinced that that Baton Rouge was a suburb of New Orleans!

The second mistake is acceptance of Professor Baier’s invitation to be the after-dinner speaker tonight.  This is a mutual mistake, sufficient to nullify a contract: He thought that I can be entertaining and I thought that I can be brief, that is, finish the presentation in one hour—I mean one hour of preparation, not delivery!

Seeking inspiration for this address, I took the trek to Mount Helicon, to the springs and gardens of the nine Muses, to ask help from Calliope, the Muse of Arts and Culture. At the top of Mount Helicon I proceeded to the fabulous gardens and springs.  Yes, the Muses were there and I approached Calliope. I smiled at her.  She smiled at me.  I tried to talk to her; but no sound was coming out of my mouth.  I must have fallen asleep.  I panicked and woke up.

On the way back to Athens I decided to stop at the Oracle of Delphi. There I was given the sad news that the Louisiana Law Review editors are still bound by the Categorical Imperative “Honor Thy Bluebook of Citations!”

* * *

I have the highest praise and respect for the dedication and achievements of the young women and men of the outgoing and incoming Boards of the Louisiana Law Review.  You are beneficiaries of a unique educational tool, the Louisiana Law Review. It has been said that “[T]he intensive two year training of law review members in research and writing may be the most effective training presently offered in American Law Schools. All students deserve a comparable education.”

The awards soon to be delivered document stories of success and honors for individuals, for the Review, and for the LSU Law School.  Resting on past glories is a pleasant pastime but not conducive to progress.  Honest critique is, especially in these fast moving times, when traditional institutions are challenged.

In the few minutes allotted to me, I will touch upon three themes:

      (1) The current epidemic of Festschrifts and law reviews;
(2) The decline and fall of legal scholarship; and
(3) The role and place of the law reviews in the digital world.

I. An Epidemic: Festschrifts and Law Reviews

The “grim tale of too many books” and too many law reviews has been told and retold by many people. More and more books are written; fewer and fewer persons are reading them—with the exception, of course, of such literary accomplishments as the memoirs and confessions of sex scandals, financial intrigue, and political expiations.

A superfluous book that is prevalent in European, particularly German and Greek academic life, is the Festschrift, a volume dedicated to an academic personality facing the misfortune of compulsory retirement at the age of 67, or death, “whichever comes first,” to plagiarize the infamous Article 890 of the Louisiana Civil Code according to which the usufruct of the surviving spouse terminates when the surviving spouse dies, or remarries, whichever comes first.  An illustrious friend, Professor Reinhardt Zimmermann, Director of the famous Max Plank Institute, ordained in vain that the publication of Festschrifts “should be stopped immediately.”  He lamented: “Yet it seems there is no way to stop them and the flood of such publications is continually swelling.”  Luckily, the Festschrift epidemic has not spread widely in the United States but a strain of that virus has infected some American law reviews.  It is time to think of an immunization vaccine.

The Law Review habit in its present substantiation first appeared at Harvard. Wigmore and seven of his fellow students established the Harvard Law Review in 1887.  Though not edited by law students, two volumes of the Louisiana Law Journal, a first in the United States, were published by Gustavus Schmidt in 1841 and 1842 in New Orleans.

Another deadly virus, “Keeping up with Harvard,” has infected law schools everywhere in the United States.  In recent decades, it has become fashionable for law schools to launch more than one law review and to measure academic prestige by the number of the law reviews published.  Harvard now has 17 law reviews and journals while Tulane has only eight.  Very recently, Vanderbilt University Law School launched another law review, “New Voices.”

No library, other than the Library of Congress, can afford to own and store on its shelves all the law reviews that are being published. Who would want to read them anyway? According to the last count, there are more than 500 law reviews in the United States and their number is still growing.  They print more than 250,000 pages annually.  Calliope is grieving for the trees that are sacrificed on the altars of law reviews.  She prays that the law review epidemic will be confined to the United States.

II. A Look to the Past and the Present

1. Law Review Power

The Past: In the pre-inflationary times, law reviews enjoyed a unique prestige and honor. Chief Justice Earl Warren asserted that “[t]he American law review properly has been called the most remarkable institution of the law school world.”

Indeed, the United States Supreme Court is the Union’s court of last resort.  But who can reverse the United States Supreme Court?  Guess.  The law reviews!

Justice Benjamin N. Cardozo has said that, “Any morning’s mail may bring a law review from a score of places to disturb our self-conceit and show with pitiless and relentless certainty how we have wondered from the path.”

The PresentToday, the leading law reviews are no longer the “severe critic” or the “helpful guide” they were in the past. Law review bashing has become a favorable pastime of law professors and judges.  In the words of Judge Silberman, the law reviews are “dominated by rather exotic offerings of increasingly out of touch faculty members.”  As a result, “the temptation for judges to write about issues that interest them—whether or not raised by the parties or constituting part of the logic of the decision—is even greater.”

I will say nothing of my great friend Paul Baier, who has published his play in the pages of various law reviews and likens himself to William Shakespeare.

European jurists are appalled by extravagant and incomprehensible law review publications. They despair when they read in the prominent Stanford Law Review an opening statement by well-known authors reading, “The project is to realize the unalienated relatedness that is immanent within our alienated situation.”

This sounds like surrealist poetry, and it has been suggested that “[i]n the third year of law school, they ought to teach English as a second language.”

Other critics observe:  “There are two things wrong with almost all [law review] writings. One is the style. The other is the content.”  And that “the content of most law journal articles has been held to be little more than a thorough treatment of trivialities.”

 2.  “Publish or Perish” Imperative

No academic faculty in the world pegs its reputation on the work of undergraduate students—with the exception, of course, of law faculties in the United States.  Initial appointments, promotions, and salary increases depend on faculty publications in law reviews.  In turn, law reviews depend on faculty productivity for their survival—of any kind and quality.

Law reviews are unique among publications in that they do not exist because of any large demand on the part of the reading public.  In truth, it is said, “Whereas most periodicals are published primarily in order that they may be read, the law reviews are published in order that they may be written.”

 3.  Cititis: The Cult of the Footnote and the Tyranny of the Bluebook

Karl N. Llewellyn wrote that: “Cititis is a disease abroad in the land. Victims of this mental disorder hold the delusion that nothing is, except in print; and even what is in print is taboo to use unless some print is cited.  The cure is to ask: ‘Where did Aristotle get his stuff from?’”

Indeed, even statements of a trivial nature are routinely supported by footnotes.  Authors are advised to “cite authority for every proposition, however obvious, and maximize the ratio of citations to pages.”

According to Judge Abner Mikva,  “If footnotes were a rational form of communication, Darwinian selection would have resulted in the eyes being set vertically rather than on an inefficient horizontal plane.”

A few years back, the record was 4,824 footnotes spread over 491 pages of text in an analysis of Section 16 of the Securities Exchange Act of 1934, published in the New York Law School Law Review.  Justice Scalia prefers simply to read the section!

The current record of an article consisting of footnotes only is held by an article entitled: “One Hundred Footnotes to the New Law of Possession and Acquisitive Prescription.”  It is published in Volume 44 of the Louisiana Law Review and has garnered great notoriety among footnotists.   The opposite record of an article without footnotes has been credited to Justice Felix Frankfurter.

The tyranny of the Bluebook originated at Harvard in 1926 with a leaflet of 26 pages. The 19th edition contains 511 pages. Judge Richard A. Posner laments:  “The pyramids in Egypt are the hypertrophy of burial. The hypertrophy of law is A Uniform System of Citations.”

There have been reactions against footnote bondage, but the demise of footnotes and of the Bluebook has been greatly exaggerated.  Eminent authors have said and written ”Goodbye to Footnotes”; “Goodbye to the Bluebook”; and even “Goodbye to Law Reviews.”  But all three are alive and keep law reviewers and the Academy in chains.  A degree of simplification is now found in The Maroon Book: The University of Chicago Manual of Legal Citations (1989).  It, however, has not been widely accepted.  To its credit, the Louisiana Law Review has a short manual for Louisiana law and legal literature citations.

The Bluebook has been described as “a religious treatise” and an “adventure story.”  Since 1988, new law review editors have found some comfort in the User’s Guide to a Uniform System of Citations: The Cure for the Blue Book Blues (1988).  Salvation may finally come from a future publication entitled “Law Review Citations for Dummies”—meaning me and Professor Baier!  In the meantime, the success and prestige of an author may be measured by his or her ability to escape Bluebook tyranny.

III. A Look to the Future

1. A Fresh Look to Purposes

The function of law reviews remains the same. They are a superb educational tool.  This should be recognized, maintained, and even expanded.

However, there ought to be a moratorium on the proliferation of legal journals, a diminution of the size of each volume, and high selectivity of printed materials. “[N]ot everything that is thought must be said, not everything that is said must be written down, and not everything that is written down must be published.”

2. Printing and Publishing

Law review editors ought to exercise a bold discretion in accepting pieces for publication.  They will be asking questions concerning the importance of the work for society, the legal system, the legal profession, legal education, and the interests of readers and subscribers.  Printing of hard copy may become the exception.  Actually, most articles accepted for publication may simply be edited and placed on the Internet in e-journals.  Today, a posting “in the clouds,” so to speak, is more accessible and more permanent than hard copy.

3. Summaries and Indices

Most printed articles may well be condensed into a few pages—a tidy summary at the outset faithfully indexed on the Internet.

There is a sad tale to the contrary:  Once upon a time, a law clerk of Judge Jerome Frank was overwhelmed by one of the judge’s opinions. He spent a week condensing 62 pages of Judge Frank’s opinion into a page and a half.  The good law clerk left both versions on the judge’s desk without comment.  Next morning Judge Frank rushed to his law clerk’s office and shouted: “We’ll add it to the end!”

My learned teacher, Albert Ehrenzweig at Berkeley, instructed me how to read law review articles:  “Go to the last page and read the conclusion.  If the conclusion makes sense, make an index card of the title.  If there is a conclusion that appears to be too long or unclear, or if there is no conclusion, discard the whole.”

4. Revival of Legal Treatises

In foreign legal systems that are not dominated by law reviews, the needs of the legal profession for direction and information are fully served by legal treatises.  American legal writers in the last century produced a good number of truly monumental treatises, but in recent decades this form of legal scholarship has been neglected. It has been said that “Such textbooks in the conventional sense do not (at the elite universities) enjoy great prestige and are rarely used for teaching purposes.”

The revival of the legal treatise in the United States may be the antidote to the cataclysm of law review printing.  In this respect, Louisiana leads the way with the publication of the Civil Law Treatise, numbering 18 volumes to date.

IV.  Conclusion

Justice Oliver Wendell Holmes stated that law reviews in the United States are “the work of boys.” Sixty years later, law reviews are now the work of young women as well as men, all at the top of their class, missionaries of legal education.  Critics, however vocal, whether in good or bad faith, cannot detract from your contributions to society, to law, to legal literature.

I salute the outgoing and the incoming editors.  You share the badge of honor and distinction of these noble words:

“Member, Board of Editors, Louisiana Law Review.”

My thanks and best wishes for a long and fruitful professional journey go out to each of you.  And always keep Ithaca in mind.

[Standing ovation.]

Note:—Editor-in-Chief Emmy Gill presented a gift to Dr. Yiannopoulos following his address, a copy of C. P. Cavafry, Poems The Canon (Harvard Modern Greek Library, 2011).  The book was signed by all editors of Volume 74 of the Review. Copies of Cavafry’s poem Ithaca were distributed to all guests as they left the banquet.  This final touch was Professor Baier’s idea. “He leaves nothing to chance,” said Ms. Gill. “Like his great Greek friend, he is a biophile.”

 
Two Biophiles.
Two Biophiles. [Credit: Jennifer Roche]
 

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