Spanking Tulane Law Review and the Limitations of Student Law Review Editors

I know this will sound like sour grapes coming from someone at a rival law school, but I’ve never heard of a state supreme court taking a law review to task for an article critical of how the court conducts its business. But, if you stick your neck out like this and make such a dramatic claim, you’d better have your numbers correct. (Just to be fair, I will also show an instance where our law review should have been publically spanked, but it was such a minor article and it didn’t take on any giant public institution like the Louisiana Supreme Court, so no one noticed.)

It all started with an article last spring in the Tulane Law Review by a Tulane law professor and an economics professor over on Loyola’s main campus. The article,

Vernon Valentine Palmer and John Levendis, The Louisiana Supreme Court in Question: An Empirical and Statistical Study of the Effects of Campaign Money on the Judicial Function, 82 Tul. L. Rev. 1291 (2008)

made headlines throughout the state and beyond by purporting to be a definitive statistical study of the Louisiana Supreme Court that, as the authors say in their preamble,

demonstrates that the court has been significantly influenced--wittingly or unwittingly--by the campaign contributions from litigants and lawyers appearing before it. In a statistical sense, campaign donors enjoy a favored status among parties before the court. Facing an aggregate of $1.3 million in political donations in the cases under review, the justices did not find reason to disqualify or recuse themselves.

Down here in Louisiana, we, along with thirty-eight other states - see Judicial Campaigns: Money, Mudslinging and an Erosion of Public Trust (PDF) - elect our judges. Your average man on the street and the typical cynical professorial type thinks that the judicial game is rigged by these campaign contributions and that if the evils of money were removed the judicial process would be... what? More fair? Less corrupt? The man on the street and the professor would probably say yes to both of those.

Local Times-Picayune columnist James Gill nicely summarized the fallout when two separate rebuttals to the Tulane article pointed out errors in the authors’ statistical methods:

James Gill, Professors Collaborate on a Giant Goof-Up, Times-Picayune, Sep. 18, 2008, at B7.

Gill notes that drafts of the article were circulated prior to its publication, including to the New York Times (which published a short article on it back in January), but that Chief Justice Calogero essentially had to beg to look at it. Tulane did address some initial errors that Calogero pointed out, but apparently many remained.

The Tulane article is a variation on the argument that politicians are influenced by campaign contributions. But, obviously, consider causation vs correlation. Yes, politicians vote in the particular way that their contributors prefer, but perhaps they inspire those contributors to donate money in the first place because they promise to vote in that particular way. This is the main objection that the two rebuttals bring up, and which are posted on the Court’s web site:

E. Phelps Gay and Kevin Tully Rebuttal (PDF), Newman, Speyer, and Terrell Rebuttal (PDF)

They use statistical jargon to explain both the causation/correlation fallacy and to point out a few other statistical errors. And both of them note that in footnote 14 the authors actually say, quote:

It is worth observing that this article does not claim that there is a cause and effect relationship between prior donations and judicial votes in favor of donors' positions. It asserts instead that there is evidence of a statistically significant correlation between the two.

Well, there is also a statistically significant correlation between sunrise and a rooster crossing, but I don’t think we’ve seen a law review article about that. Post hoc ergo prompter hoc and all that (which is the only other latin phrase I know by heart after the de rigeur cogito ergo sum).

But - and this is what I think is unprecedented - last month Tulane Law School Dean Lawrence Ponoroff issued an apology to the Court that is now on both Tulane and the Supreme Court’s web pages:

Apology at Supreme Court

(At least I think it WAS on the Tulane web page.) As Dean Ponoroff says, you can’t expect law students to be responsible for examining the sort of statistical analysis that the authors did in this article. Palmer has, according to a New York Times note, said “the corrected data appear to continue to support the study's general conclusions ... [and] ... that he was seeking an independent review of the study.” Editor’s Note, NYT Sept. 20, 2008, p4 (available at the bottom of the original article). But, again, given their disclaimer in footnote fourteen, their "general conclusions" aren't that earth-shattering.

So now, just to be fair, here is an article that our law review published a few years ago. Both of these articles - Tulane’s and ours - point out several weaknesses in the American law review system, the main one being that legal novices are ill-equipped to decide what topics have legal merit and whether those that have merit are addressed in any given article in a thorough, scholarly manner (law is unique in that the majority of its scholarly journals are run and edited by students in the second and third year of their legal education; medical students don’t edit journal articles about new surgical techniques, do they?). A second weakness is the sheer volume of material that law reviews must produce. There is at least one “flagship” law review at all of the 195 ABA-accredited law schools and typically one or several more “specialty” law reviews at each school. Each of these publish an average of four or so issues a year, thus requiring, in the aggregate, as one commentator notes, about 7200 law review articles per year.

Long story short, many law reviews are hurting for content and will accept just about anything that has a scholarly facade on it. Which is what our law review did back in 2003:

Ellis Washington, The Nuremberg Trials: The Death of the Rule of Law (In International Law), 49 Loy. L. Rev. 471 (2003)

Where to begin? Mr. Washington starts with a page and a half of acknowledgments, which is a common game as I understand it, allowing the author to engage in some big-time name-dropping. So if you shoved your manuscript under the men’s room stall at the AALS meeting hotel when Larry Tribe was heeding the call of nature and he yelled “get that thing out of here”, you can then include in your acknowledgments “Special thanks to Professor Lawrence Tribe of Harvard Law School for his comments on this article”.

But Mr. Washington goes beyond the pale here. He says:

This article's significance has been recognized by many institutions throughout the world, including: The U.S. Holocaust Memorial Museum, The Simon Wiesenthal Center, The collected papers of all nine present Justices of the United States Supreme Court, The Ronald Reagan Presidential Library, The George H.W. Bush Presidential Library, The Helen G. Simon Hillel Center at Indiana University, Yad Vashem Library (Jerusalem), State Museum of Auschwitz-Birkenau, Leo Baeck Institute (New York), Harvard Law School, Israeli Ministry of Foreign Affairs (Jerusalem), The Jewish Agency, World Zionist Organization, and YIVO Institute for Jewish Research Today.

For one, this article is just now being published, so how can its significance have already been recognized by so many institutions? And, not to pick nits, but present Justices of the United States Supreme Court do not actually have “collected papers” because, ahem, they are using their papers since they are, yes, the PRESENT Justices. I actually checked this one out and found that none of the Justices at the time this article was published had collected papers and that in the Court’s entire history, only one Justice - I forget which one but its in my notes somewhere - donated their papers while still on the bench, but it was when he was about to retire anyway.

So that should have been a red flag but law students - and not just here at Loyola but I imagine at many schools - are so eager to have material that they’ll pretty much let an author say whatever they want in these prefatory acknowledgment footnotes.

But then, what really got me mad, as a law librarian, was footnote two, a brief biographical note about Henry L. Stimson, who served as Secretary of State under Hoover and Secretary of War under F.D.R. It is a biographical note to explain who Stimson is because he is the source for the second of two epigraphs at the beginning of the article, which Mr. Washington presents as:

[W]ar . . . is an illegal thing.
- Henry Louis Stimson ²

Yes, that is a correct Bluebook use of ellipses, but Jeez - you think maybe the words left out might be relevant? Or the context? A more extended version of this statement is quoted a lot and is typically cited as being in one of the collected documents from the Nuremberg Trials, which we don’t have, but it was also cited in full in a 1941 volume of the American Journal of Comparative law, where it is a footnote in a speech given by the U.S. Attorney General at that time, and which cites a speech that Stimson himself gave in 1932 which is apparently the original source of the quote. Which, in full, is:

      “War between nations was renounced by the signatories of the Briand-Kellogg Treaty. This means that it has become illegal throughout practically the entire world. It is no longer to be the source and subjects of rights. It is no longer to be the principle around which the duties, the conduct, and the rights of nations revolve. It is an illegal thing.”

That is - count them - fifty-six words that Mr. Washington left out! But that, no THAT isn’t what bothered me. What really bothers me is that the footnote that he provided, and which our law review apparently signed off on, is to just a biographical note about Mr. Stimson, and not an actual source for the quote. The footnote, which is a muddled mess, is:

²      Henry L. Stimson, [Secretary] of War 1911-1913, 1940-1945, Secretary of State 1929-1933, was very influential. In fact, he recommended the use of the atomic bomb to Truman (as chair of the Interim Committee). Stimson was encouraged by Conant to publish an article in Harper's Magazine explaining the decision to drop the bomb. Stimson and Conant were both concerned that w/o public support for a willingness to drop the bomb in the future and the decision to drop it on Hiroshima and Nagasaki in the past, the US would lose clout against the Soviets in UN negotiations and in vies for attracting 3rd world nations (this is also a reason nuclear power was encouraged commercially, to increase U.S. international prestige).

      Henry L. Stimson, Essay 1, at www.people.virginia.edu/~ ejk4e/hius316/answers.htm#Stimson (last visited Oct. 15, 2003). See also Robert H. Jackson, Opening Address for the United States, Nuremberg Trials, in David M. Adams, Philosophical Problems in the Law, 7, 12 (1992) (describing Henry Stimson's views on war).

The initial indented text is a quote in full from the web page at the University of Virginia, which doesn’t include the quote, doesn’t say where the quote is from, and which is, in fact, a SAMPLE MIDTERM ANSWER to an undergraduate history course!

Then there’s the misleading point of having someone say “War...is an illegal thing” when the speaker's comments were from 1932 and made in reference to the Kellog-Briand Pact which, yes, technically outlawed war but, as we know, was not really a resounding success.

I presume Mr. Washington was trying to be ironic or funny. But since the full context of the quote wasn’t provided, no way would most readers know that Stimson was referring to the Kellogg-Briand Pact.

This being the second footnote of this forty-six page article, things can only get better, right? Well, no. Besides some awkward sentences, minor citation errors (which I promise you just about every law review article has, no matter how careful the editors are), and a random first-person point of view in one section, we get to the one part of the article that our faculty DID notice and which, collectively, we held our breath and hoped no one else would find. At page 491:

Under the United Nations, governments and nation states were seeking to formulate a one-world government.⁵³

⁵³ Melvin Sickler and Myron Fagan, Thirst for Justice: A Satanic Plot for a One World Government, at http://www.prolognet.qc.ca/clyde/illumin.htm (last visited on Oct. 7, 2003).

Yes, finally! A law review article that recognizes the Illuminati as a valid scholarly authority!

This reminds me - has anyone ever tried to pull an Alan Sokal in legal scholarship?