Texas A&M University School of Law Texas A&M Law Scholarship

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1-1993

Reviewing the Law Reviews, Texas-Style

Jim Paulsen

James Hambleton

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Recommended Citation Jim Paulsen & James Hambleton, Reviewing the Law Reviews, Texas-Style, 56 Tex. B.J. 284 (1993). Available at: https://scholarship.law.tamu.edu/facscholar/5

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Reviewing the Law Reviews, Texas- Style

By Jim Law Review banquet). world of legal academia. The number Paulsen The SMU Law Review, which recently ofll islegal not periodicalswell in the ispublish-or-perish growing explo- and James Hambleton has undergone a name change from the sively, and is now more than 700. Southwestern Law Journal in an apparent Established law reviews are sneaking more from academic obscurity by a reader who effort to enhance its national name recogni- and more pages of text into each volume. suggested that she submit the manuscript to tion, occupies a unique second place show- There is a growing consensus, however, the American Association of Law ing in citations by both federal and state that genuine legal scholarship is not Librarians. The AALL in turn was appellate courts. The strong showing in fed- expanding at a pace sufficient to fill all impressed enough to ask Justiss to present eral citations might be explained by the these blank pages. Seminar speakers advise the paper at its 1992 annual meeting and to journal's general emphasis of federally-ori- new law professors that somewhere there is be recognized as the author of the AALS's ented articles; the strong showing in state a law review willing to print anything a outstanding student paper of the year. The courts is due largely to Southwestern's professor is willing to put on paper; a little full findings will no doubt be published in annual survey issue. Our rough count indi- browsing will confirm that those lecturers the near future, and we would not want to cates that the annual survey issue accounts know whereof they speak. hurt Justiss' publication prospects by for about two-thirds of all Southwestern's Moreover, much contemporary legal revealing all the juicy details. Nonetheless, state court citations, with Joe McKnight's scholarship is traveling down the roads of we could not resist devoting a column to a perennial "Family Law - Husband and "comparative" or "critical" this-and-that or headline news summary. Wife" contribution holding a commanding "law-and-whatever" movements. However While many of the figures confirm wide- lead within the issue. fascinating and ground-breaking some of ly-held beliefs, there are one or two surpris- While having nothing to do with Justiss' these ideas may be, it is well-nigh impossi- es. Perhaps the biggest surprise is the over- figures per se, we cannot resist adding a ble to work them into the day-to-day busi- all "winner" in the combined total number side comment or two on this subject. While ness of advising clients or trying and judg- of federal and Texas appeals court citations "annual survey" articles tend to be discount- ing lawsuits. It is little wonder that many to articles produced during a 20-year period ed whenever law school faculties get practitioners and judges are refusing to (1970-89) in the state's "front line" law together to count up scholarly productivity wade through the 150,000-plus pages that reviews: the St. Mary's Law Journal. With for tenure decisions, they do seem to pro- law reviews pump into the "junk stream" of its emphasis on practice-oriented materials, vide a singularly useful service to the bench legal literature every year. In these reces- sometimes authored by distinguished jurists and bar. For example, the Southwestern sionary times, when library budgets and (Judge David Hittner and former Justice Law Journal's "annual survey" issue available shelf space are shrinking, a close William Kilgarlin account for many of the accounts for more than half of all court cita- look into the usefulness of law reviews recent citations), the St. Mary's Law tions to that publication, including a sub- therefore begins to make sense. Journal barely nudges out the venerable stantial number of all federal court citations. Beginning as early as the 1930s, studies Texas Law Review for the number one posi- One study result reflects a real oddity in of the "real-world" impact of law reviews tion. The St. Mary's Law Journal's strength the history of Texas law reviews. The South have appeared in print. Typically, the author is also reflected in its strong first place Texas Law Review (or "Journal," until a will count citations to law reviews in court ranking in citations by state judges over the couple of years ago) comes in with a dismal opinions or other law review articles, and same 20-year period. seventh place showing in the overall stand- conclude which law reviews are the "best" The Texas Law Review's overall showing ings. While this standing may perplex those or have the most apparent influence on reflects some success in the school's who glance over the contents pages and courts or legal scholars. From a Texas attempt to "go national." Articles appearing notice occasional good - even great standpoint, these studies usually hold little in the Texas Law Review between 1970 and articles (former Justice C.L. Ray and Yogi interest, since most of our state's school 1989 were cited by federal courts more McKelvey, Judge David Hittner, Harvard publications are too new or too provincial often than all the state's other law reviews Law Prof. Arthur R. Miller, and Circuit to make the national law review hit parades. combined. On the other hand, the Texas Judge Edith Jones, to name a few of the Fortunately, a decent Texas-oriented statis- Law Review drops to a distant sixth place in more recent), the news should come as no tical study has moved to fill this gap. citations by state court judges. This show- surprise to anyone who has tried to cite any Laura Justiss (formerly of Locke, ing confirms the derogatory mutterings article printed in the South Texas Law Purnell, now with Mead Data) recently did sometimes heard in the hallways of Texas Journal prior to 1985. a cite count of seven Texas-published law courthouses (or even, rumor has it, in For some obscure reason, the editors of reviews as part of a master's degree pro- impromptu remarks by a former Texas the first 25 volumes of the South Texas Law gram. The results of her study were rescued Supreme Court chief justice at one Texas Journal did not follow the near-universal

284 Texas Bar Journal March 1993 law review practice of including the volume space. The SMU Law Review may also be number and year on the running head. worth keeping on the shelves, at least so Viewed from the perspective of a judge or long as the editors continue to produce the briefing clerk who discovers this quaint lit- "annual survey" issue. And the Texas Law tle custom late at night while reading from Review may be attractive if one has a sub- a xerox copy, with the choice of going back stantial federal practice. DON'T DO IT!! to the library or of just not including a cita- Of course, no study of law review cita- tion, it is a minor miracle that articles from tions can provide an answer to the question Don't take chances with deposi- the first quarter-century of the South Texas of how influential law reviews really are. Law Journal have been cited at all. By the For one thing, courts represent only one tion and statement summaries way, we have done a quick count of cita- branch of our tripartite system of govern- prepared by college students or tions in the 1986-91 period, being the first ment. Who can say what influence the con- professional "readers." All sum- five years after South Texas added running tinuing Baylor Law Review series on maries at J.D. SUMMARIES are heads, and found that the journal rises to a administrative law might be having on prepared by a licensed attorney. middle-of-the-pack fourth place position. Texas administrative agencies? And what One interesting aspect of Justiss' study is "significance" does one assign to a Texas the change in standing that she finds when Tech Law Review article that advocates leg- DO CALL the citation figures are corrected for the islative change, a change that was adopted J.D. SUMMARIES today and total number of pages in each volume of the at the next session after the article was pub- find out about the quality services law review. Different schools' law reviews lished? Such an article will rarely, if ever, put out a different number of pages per be cited by courts. Yet it might have had we offer, including: fast turn- year, from the Baylor Law Review's 1,000 more real-world impact than any two or around, 24-hour rush service, or so undersized pages to the Texas Law three dozen court citations. pickup/delivery to Downtown and Review's 1,500-plus. Standardized by "cita- Even limiting the question to the courts, Galleria areas, mail-in discounts, tions per 1,000 pages of text," a couple of the fact that a judge may cite a law review plus competitive prices. interesting changes occur. The Texas Law article does not mean the article actually Review drops from second to fourth place influenced the court's decision. Articles and the Baylor Law Review rises from may be cited as a courtesy to the author, as fourth to second, coming in just barely a sign of school loyalty by a judge or brief- behind the St. Mary'sLaw Journal. ing clerk alumnus, as a bibliographic refer- Adding to Justiss' analysis, if one ence in a string cite, and so on. On occa- includes in the calculations the fact that for sion, judges even cite law review articles to almost all of the survey period Baylor had disagree with the ideas proposed in those smaller pages and a larger type size than articles. Conversely, a law review article St. Mary's, this refinement would put the may be very helpful to a judge or litigant, Baylor Law Review in first place in the providing ideas, references to other authori- "bang for the buck" category. But, then ty, and convenient summaries of complex CHAP7.13 again, the fact that one of this column's lines of cases, yet never be cited. No rule authors is a Baylor Law Review alum requires a judge to cite every law review might also enter into the calculations just a article found to be helpful in arriving at a BANKRUPTCY little bit. decision, and some judges prefer to avoid One overall conclusion of Justiss' survey citations to "secondary" authority whenever also bears mention. Breaking down the sur- possible. SOFTWARE vey period into four five-year segments, she It would be interesting indeed someday finds a very significant drop-off in citations to read a law review citation survey that to all Texas law reviews over the last five- included content or "impact" analysis, if With New Forms year period (1985-89). A figure like this such a survey could be devised. Until that offers fruitful ground for speculation. Are day, however, citation studies - typified by lawyers and judges giving up on law Justiss' well-executed effort - are the best plus new reviews altogether, because they find little we have. Look for it in print! useful material these days? Is an increasing- ly conservative judiciary finding less and Jim Paulsen (J.D. Baylor, LL.M. TypeSet Option less reason to cite law review articles, Harvard) is an assistantprofessor of law at which tend to advocate change? Are appel- Court Approval Guaranteed the South Texas College of Law. James * Computer Counsel Seal awarded by late judges, overwhelmed by an increasing Hambleton (J.D. George Washington, MLS Law Office Automation Center, workload, finding less and less time to read Michigan) is a professor of law and direc- independent testers of legal software. the law reviews? Or is it just a statistical tor of the law library at Texas Wesleyan glitch? Justiss wisely does not speculate University Law School. Carl Selesky, a sec- Call (313) 398-9930 and we know a good idea when we see one. ond-year student at South Texas, nearly Justiss' figures do offer some guidance went cross-eyed counting Shepard's cites to for test report, for anyone evaluating current or future sub- verify some of the offhand assertionsfound references and scriptions to Texas-produced law reviews. in this column. The legal research column demo disk The St. Mary's Law Journal looks like a is a semi-regularfeature of the Texas Bar good buy for any Texas law office. The Journal. The writers welcome comments SPECIALTY SOFTWARE Baylor Law Review is likewise attractive, and suggestionsfor topics to be covered. Box 7026 * Huntington Woods, Ml 48070 offering a lot of utility for a little shelf Vol. 56 No. 3 Texas Bar Journal 285 BOOK APPRAISALS

The Lawyer's Guide to Writing Well ties are useful for the general, as well as the More than half of the book is devoted to Goldstein, Tom, and Jethro K. Lieberman. legal, writer. Of the few flaws that have motor vehicles, insurance, and "pranks and New York: McGraw-Hill Publishing Co., crept into this work, prime offenders are the other crimes." There is a comprehensive 1989, 274 pp. $19.95; Berkeley: Univ. of overloaded discussion of the parenthetical discussion of what motor vehicle insurance Calif.Press, 1991, 2 78 pp. $14 (paper). use of the comma in the text and the con- covers and what it does not, and what civil This book lives up to the promise of its fusing and misleading explanation of "due and criminal consequences can result from title - a guide for lawyers to write well. to" in the glossary, an accident. The chapter on criminal liabili- The authors are eminently qualified in their Among the legal writing texts that have ty discusses the types of crimes - from hot professional capacities as director of a law proliferated in recent years, this book checks to drugs - with which teenagers, school writing program (Lieberman) and as stands out for its unique features and its intentionally or not, are most likely to be dean of a graduate school of journalism obvious concern for lawyers rather than law involved. The remainder of the book con- (Goldstein). The authors, who teach the art students. All lawyers who wish to improve centrates on landlord-tenant, marriage, of writing to lawyers in firms throughout their writing should have this indispensable property, and consumer and employment the country, conducted a survey among guide in their offices, law - the other principal areas of interest hundreds of lawyers, professors, and judges Ruth Tone to the nascent adult. on their annoyances with lawyers' writing. El Paso Wallace adopts a conservative, logical, The results have yielded many pertinent common-sense approach to the advice she and meaningful examples. This originally- What Every 18 Year-Old Needs offers her readers. She begins with six conceived work appeals to practitioners To Know About Texas Law "Rules to Live By," such as "Life is not because of its emphasis on the practical, L. Jean Wallace. Austin: University of fair" and "Anything that sounds too good to convincing lawyers to improve their writing Texas Press, 1992, 165 pp., $19.95 cloth, be true usually is." She counsels polite for such compelling reasons as efficiency $8.95 paperback. behavior, especially toward authority fig- and profitability. A better title for this concise volume ures. She does not take any knowledge of The authors urge lawyers to use journal- might have been What Every 18 Year-Old the subject for granted and endeavors to tell istic devices like the lead paragraph, which Wants To Know About Texas Law. Despite the reader not only what the law is, but would provide unique, striking introduc- the lawyer-knows-best sound of the title, what it is not. No law, for instance, requires tions for their documents without detracting Wallace's new book speaks more to the a business to give a refund if a consumer from the substantive legal meaning. They questions that 18 year-olds really ask than decides he or she does not want the item; an even insist that large firms should coordi- to what the title implies - and well it employer cannot fire an employee for refus- nate writing functions much as publishing should. As the students' attorney at Texas ing to do an illegal act but the law generally houses do, with definite allocation of writ- Tech University for 11 years, Wallace does not prohibit him from waiting awhile ing, editing, and proofreading tasks. Their answered those questions on a daily basis. and then firing that employee for no cause recommendations are set forth in a suggest- The book is written in plain language, at all; a patrol officer does not have to show ed law firm writing audit. unencumbered by a lot of legal citations, someone he stops the speed that person is Goldstein and Lieberman also utilize the and with no expectation that the reader will accused of going on locked-in radar. composition teacher's methods. They look have any working knowledge of the law. It The one thing that sets this book apart at writing as a process and recommend that is written, in short, on the level of the stu- from others in the now-you-are-an-adult lawyer-writers not only examine - before dent who came into Wallace's office one genre is that Wallace remembers to include they write - the purpose and audience for day with a question about her lease. "How the wisdom of experience that becomes sec- each document and then try to allow time long is it?" Wallace asked. "About this ond nature to more mature adults. For for ideas to solidify, but also carefully edit. long," the student replied, holding her example, in one of the "True Stories" inter- A list of 10 steps highlights this process. hands 14 inches apart. spersed to illustrate a point, Wallace In a long, detailed chapter, basic usage This is not to suggest that the practicing describes a young man who ran up a high and language points are illustrated through lawyer would have no interest in the book. credit card debt, lost his job, and could not numerous examples of practical problems The topics it discusses are of universal find work for months. He finally found new taken from the survey and other sources, interest - we all drive cars, buy consumer employment for less pay and was subse- and immediate solutions are given. The goods, and enter into personal relationships. quently hounded by a collection agent. He chapter, though well designed with bold Clients browsing through a copy while sit- came to Wallace complaining that the bill heads, indented excerpts, and adequate ting in your waiting room will likely think collector kept him on the phone for an hour spacing, may cause readers who scan for of questions that could be turned into bill- and made him late for work. She suggested, particular points to miss major parts of the able hours later. simply, that he interrupt the agent's ques- content. At the same time, the book can serve as a tioning, say goodbye, and hang up. A glossary and a list of writing authori- quick source of reference to answer those Wallace covers the rudiments of a lot of pesky little questions on forcible entry and law in her book. The common thread run- detainer, traffic tickets, and consumer ning throughout is what to do to stay out of affairs that most lawyers know in the back trouble. She advised young people not to of their minds but do not deal with on a try outrunning a police car, letting a day-to-day basis. The scope of the book is mechanic work on a car without a written surprisingly broad, and it contains a com- work order, and refusing to pay rent plete index that will let you put your finger because a repair has not been made. on the relevant discussion while your client The book is, for the most part, entertain- is still on the phone. ing reading. You probably will not find any

286 Texas Bar Journal March 1993 other book that discusses the law on lines the application of ADR in specific discuss the transition made from law stu- "mooning or taking a leak." The list of con- areas of the law, analyzing the use of ADR dent to lawyer. Ennico's unique contribu- trolled substances is almost as tedious as in appellate proceedings, family matters, tion is to focus on those skills that cause the list in the statute, though, and it could agricultural loan mediation, construction one to "think and act like a business have been relegated to an appendix. The industry, nonunion employment settings, lawyer." Moreover, to Ennico's credit, the only significant error I found was in a chart environmental dispute resolution, and book does not adopt a lawyer bashing tone. that showed all criminal appeals going criminal conflicts. In effect, the new business lawyer is urged directly to the Court of Criminal Appeals. The final section of the handbook is a to develop client handling skills that factor Criminal appeals are really outside the catch-all. It explores the cost of ADR, its in the differences between an MBA's and scope of the book, however, so that is easily use in federal courts, and considers the eth- J.D.'s approach to solving business prob- disregarded. ical and confidentiality aspects of ADR lems. Ennico repeatedly hammers away at Young people get into legal trouble for which are the mainstay of the ADR this last point by suggesting ways to mini- two reasons: they do not know what the law process. The services available at mize legal risk while looking good in the is, and they do not stop to think about the Community Dispute Resolution Centers client's eyes. consequences of their actions. This book are discussed and the concept of settlement The author has clearly done his home- would make a good text for a preparation week is outlined. work, as evidenced by the extensive select- for life class for high school seniors. And The final chapter of the handbook is my ed and annotated bibliographies. Additional 16-year olds with cars or a propensity for personal favorite. It is a detailed bibliogra- chapters touch upon other areas of concern mischief (or both) would also profit from phy of selected materials in each of the to new business lawyers, most notably how reading at least the first half. areas addressed in the handbook. Equally the business lawyer deals with governmen- What Every 18 Year-Old Needs To Know useful are the appendices that include the tal agencies. The author concludes by giv- About Texas Law will undoubtedly be pop- Texas ADR statute, local court rules, and ing some personal, paternal, and philosoph- ular among parents, grandparents, aunts, forms. ical thoughts on defining success in one's and uncles for graduation gifts. But the big Any lawyer practicing in Texas should chosen profession. question will be whether such a gift is just have a copy of this handbook on the cre- To the extent that one is interested in the leading the horse to water. I hope the horse denza. It will not be a book that gathers subject of business lawyering, the book will will be willing to drink. dust, but one that evidences regular use due be either insightful or tedious. (Some illus- Ralph H. Brock to its dog-eared pages. trations could only be appreciated by secu- Lubbock F. Beth Morgan rities law fans.) Either way, it does answer Dallas the question, "Just what might a Stuart Handbook of Alternative Markowitz do on a typical work day," ...in Dispute Resolution A Primer for New case anyone is asking. Amy L. Greenspan, ed. The State Bar of Corporate Lawyers: C. Yonne Avina Texas Standing Committee on Alternative What Business Lawyers Do San Antonio Methods of Dispute Resolution, second edi- Clifford R. Ennico. New York: Clark tion, 1990,426 pp. Boardman Co., Ltd., 1990, $39.95. Alternative Dispute Resolution (ADR) is "L.A. Law's" Stuart Markowitz may be now firmly established in the Texas courts. one of America's most recognizable office- This second edition of the handbook based lawyers. But how might a real-life reflects the increased application of ADR as counterpart fill a typical work day? Clifford well as the greatly-expanded coverage of Ennico answers this question in A Primer the various types of ADR. for New Corporate Lawyers: What The first chapter provides an overview of Business Lawyers Do. The topic is timely ADR and the development of ADR in since most new lawyers are becoming response to problems associated with the office-based practitioners (the fastest grow- traditional legal system. ADR is depicted ing segment of the organized bar), perhaps not as a substitute for litigation but rather as without a clue about the nature of the work. an additional tool available for resolving Acting as reporter, the author provides disputes. clear, step-by-step descriptions of four prin- The second chapter discusses the preven- cipal tasks not considered suitable for tive use of ADR, suggesting incorporation prime-time viewing: monitoring the client's of ADR provisions in contracts and corpo- environment, counseling the client, manag- rate policies to set the stage for use of ADR ing the client's transactions (which included should a problem arise. structuring, drafting, and closing skills), The handbook's various contributing and negotiating on the client's behalf. The authors discuss mediation, arbitration, sum- author draws from his Wall Street law firm mary jury trial, mini trial, moderated settle- and in-house counsel experience to provide ment conference, private judging, and com- occasional anecdotes, practice tips, and bined processes. Each author is candid insights that keep the text readable. hand-picked for his or her familiarity with Such reading could be especially telling for the particular type of ADR and each chap- aspiring office practitioners, their loved ter contains specific practice pointers for all ones, and their clients who wonder how participants. The editor has done a master- someone can earn a living as a lawyer with- ful job of organizing the discussions by the out ever setting foot in a courtroom. various authors into uniform formats. Acting as mentor, the author distinguish- The second half of the handbook out- es his text from existing works which also

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