Reforming Our Law Reviews

Vol. 39 No. 9

By

Bryan A. Garner (@BryanAGarner) is the president of LawProse Inc. He is the author of many widely used books, including Making Your Case: The Art of Persuading Judges (with Justice Antonin Scalia) and Garner’s Modern American Usage. He is the editor in chief of all current editions of Black’s Law Dictionary.

Of all the editorial reforms that a law review might adopt, the most beneficial would be to require line editors to justify their edits with brief notations citing usage guides. This policy would eliminate nearly all edits that introduce errors into manuscripts—a pervasive problem that I witnessed firsthand as an associate editor of Texas Law Review in the mid-1980s. The problem has not abated: Contemporary eyewitness accounts suggest that the problem is as serious today as ever.

A competent editor is instantly on the alert for construction problems involving (1) a pair of correlative conjunctions, such as both . . . and and either . . . or; (2) one of those . . . who or one of the . . . that; (3) any construction containing one or more pronouns, including whom; (4) an adverb modifying a verb phrase; (5) a singular subject followed by a prepositional phrase containing a plural noun; or (6) certain faulty expressions such as could care less (it should be—and is, in the mouths of highly literate speakers—couldn’t care less).

But law-review editors are generally chosen not so much for their editorial know-how as for their first-year grades—which are often based on hurriedly writing semiarticulate ideas that demonstrate some prowess in “issue-spotting.” Hence of all professional journals, law reviews are among the most amateurishly edited. It’s a seemingly intractable problem unless we establish the reform I propose.

Meanwhile, though, it’s child’s play to find the horribles that I annually parade in this space. Let’s waste no time in getting to them. Please test yourself against the editors (who got it wrong in each instance) by selecting the words to complete these 15 sentences, which appeared in print during 2010:

1. “The motif’s lack of influence on the judiciary is also a product of the fact that, while the USPTO is on the front end, courts are, for all [(a) intensive, or (b) intents and] purposes, on the back end of the patent system.” (Yale Journal of Law & Technology)

2. “Doctors will be liable for malpractice if, instead of running necessary tests and [(a) proscribing, or (b) prescribing] medicine, they treat every illness with bloodletting.” (Duke Journal of Law & Technology Review)

3. “When business people have ‘lawyered up’ with top-shelf attorneys from prestigious law firms . . . and have [(a) drunk, or (b) drank] their own ‘Kool-Aid,’ their legal correctness is cemented in their own mind [read minds].”
(Cardozo Journal of Conflict Resolution)

4. “[T]he police did not believe that the story presented by [(a) her, or (b) she] and Kennedy was plausible.” (New England Law Review)

5. “They are largely designed to ensure that defendants receive their just [(a) deserts, or (b) desserts].” (Tulane Journal International & Comparative Law)

6. “In a footnote, the court explains [(a) it’s, or (b) its] reference to Bell Atlantic.” (Cleveland State Law Review)

7. “[A]rticle 11(7)(d) establishes . . . one [(a) criterion, or (b) criteria] of such a regime.” (Fordham International Law Journal)

8. “What is notable is that each of these doctrines [(a) are extensions, or (b) is an extension] of basic trademark law.” (Michigan Law Review)

9. “[N]either of these factors [(a) are; or (b) is] specific to NOP’s success in seeking environmental protection.” (New York University Law Review)

10. “As the patient was [(a) lying, or (b) laying] on the transfer table, her doctor informed her that he would transfer only two of the three cultured embryos.” (Texas Law Review)

11. “The doctrine then [(a) laid, or (b) lay] dormant until the era of Lochner v. New York.” (Fordham Law Review)

12. “While many artists [(a) could, or (b) couldn’t] care less about matters of state, others find it a moral imperative to use the power of their craft in protest.” (Notre Dame Law Review)

13. “The Court’s due process requirements in [(a) regard, or (b) regards] to punitive damages can be summed up in six rules.” (Virginia Law Review)

14. “Discriminatory dismissal from jury service will likely taint the [(a) perspective, or (b) prospective] juror’s view of the justice system.” (Minnesota Law Review)

15. “It should be noted that claims made against former Mercury General [(a) Council, or (b) Counsel] Susan Skaer, now Tanner, were recently dismissed.” (Hastings Business Law Journal)

How did you do? Grade your answers against the key below. If you achieved 80 percent or better, you definitely know a good deal about editing and you’d make a fine editor. Your years of reading, and of paying attention while doing so, have paid off. If you scored below that, you have essentially two choices: (1) dismiss the importance of the quiz and believe that you’re truly brilliant anyway, or (2) consider it a sobering self-assessment and immediately start improving your English skills by acquiring a usage guide such as Fowler’s Modern English Usage (2d ed. 1965), the newest edition of The Chicago Manual of Style (16th ed. 2010), or my own Garner’s Modern American Usage (3d ed. 2010).

If you got at least one right answer, you can gloat a little: after all, the law-review editors cumulatively scored 0 percent on the quiz. Anyone could score 100 percent simply by looking up questionable points in a reliable guide.         

Abbreviations in Key

CMS = The Chicago Manual of Style (16th ed. 2010)

GDLU = Garner, Garner’s Dictionary of Legal Usage (3d ed. 2011)

GMAU = Garner, Garner’s Modern American Usage (3d ed. 2010)

MEU = Fowler, Modern English Usage (2d ed. 1965)

Key to Correct Answers

1. Intents and (b).  GDLU 368–69; GMAU 365. (It’s unpleasant to think of courts as the legal system’s back end—especially if they are acting “intensively.”)

2. Prescribing (b). CMS 294; GDLU 723; GMAU 688; MEU 475. (If the choice is between bloodletting and proscribing medicine, please allow bloodletting!)

3. Drunk (a). CMS 278; GMAU 279; MEU 140. (The writer seems to attribute one mind to all lawyers at prestigious firms.)

4. Her (a). GMAU 663–64 (under pronouns (a) & (b)). (She is objectionable here; the objective her is correct.)

5.  Deserts (a). CMS 277; GMAU 492; MEU 126.

6.  Its (b). CMS 287; GMAU 486; MEU 312.

7.  Criterion (a). CMS 276; GMAU 214–15; MEU 114.

8.  Is an (b). GMAU 286–87 (under each).

9.  Is (b). GMAU 563–64 (under neither).

10. Lying (a). CMS 287; GDLU 528; GMAU 501–03; MEU 327.

11. Lay (b). CMS 287; GDLU 528; GMAU 501–03; MEU 327.

12. Couldn’t (b). CMS 275; GDLU 228; GMAU 208.

13. Regard (a). GDLU 462; GMAU 703–04 (under regard).

14. Prospective (b). GMAU 669. (The writer unintentionally produced a near-pun: tainting the juror’s perspective.)

15. Counsel (b). MS 275; GDLU 228; GMAU 208–09. (Duly noted, but it takes more than one counsel to make a council.)

 

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