How Law Reviews Can Get It Right

Credit: Joe Shlabotnik, Creative Commons License.

We agree with the New York Times’ Adam Liptak[1] that most law reviews are increasingly irrelevant—filled with arcane articles that are, according to Supreme Court Chief Justice John Roberts, “[not] much help to the bar.” Most law reviews, but not all.

Founded in response to this perceived irrelevance, the N.Y.U. Review of Law & Social Change (RLSC) is dedicated to publishing scholarship that is not only relevant, but also applicable and implementable, to legal practitioners who are working to advance social justice in the world. So while we agree with Mr. Liptak’s sentiment, we regret that he painted with too broad a brush.

RLSC only accepts articles that meet a number of criteria that defy his generalizations. First, they must fit our “page-to-practice” model, which means that our editors believe the article will be useful to lawyers who are out in the field, particularly lawyers who are under-resourced and working in underserved communities. We actively avoid publishing obscure or irrelevant pieces that do little besides helping their authors get tenure.

Just this week, we were informed by Judge Toko Serita of Queens County Criminal Court that her proposals for a new framework to deal with the tragedy of human trafficking, published in our recent Issue 36, Volume 4,[2] are being taken up by New York Court of Appeals Chief Judge Jonathan Lippman and the New York State Bar Association. Last spring, we held a symposium about marriage equality and published several articles that were released prior to oral argument in the California same-sex marriage Supreme Court cases, Perry v. Brown[3] and United States v. Windsor.[4] RLSC is, and has always been, focused on publishing relevant and timely legal writing.

The comments in Mr. Liptak’s piece also suggest that students are not qualified to make decisions about what is relevant to lawyers and what articles are best for publication. This, too, is an unfortunate generalization. Not only do many of our talented editors have years of experience working in the fields addressed in our scholarship—as inner-city teachers, paralegals, and social workers (not to mention professional writers and editors)—but through their clinical and summer work, they have a firsthand view of the problems good scholarship can address. Furthermore, RLSC continues to develop a network of expert practitioners in various fields who assist in selecting the most relevant articles for publication. In fact, we are currently developing a pilot program that will pair students with legal practitioners so that they can work together to co-author new articles. The idea behind this program is that it is the practitioners who have the relevant ideas and knowledge (even more so than professors) and the students who may have the time to do research. Pairing them will allow the most knowledgeable lawyers to get their ideas out to the world.

One celebrated fact that Mr. Liptak’s piece mentions is that “almost 40 percent of the cited articles in recent years were not by full-time law professors, but by students, practicing lawyers and others outside the more elite parts of the academic establishment.” In addition to publishing more student work than most journals (and publishing them as “articles” rather than “notes,” as most law reviews do), RLSC also stands for the proposition that the legal conversation should not be shaped exclusively by professors. Other voices deserve to be heard—diverse voices—and RLSC seeks them out to publish their work. If professors were to have sole control over legal academia, we would see far less diversity: only professors who can hire research assistants would ever be able to publish, and the selected articles would all be about other professors’ pet topics. It would only be the “elite parts” of the legal establishment that would have an opportunity to disseminate ideas. The purpose of RLSC is to go beyond that and change the legal narrative.

Unfortunately, Mr. Liptak is probably correct when he asserts that “law reviews are not really meant to be read.” We lament this fact—and not only on behalf of the law students who each spend hundreds of hours each year editing these pieces. Our journal, however, is meant to be read.[5] And, more importantly, used.

Nicholas Melvoin and Andrew Neidhardt
Editors-in-Chief, N.Y.U. Review of Law & Social Change

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[1] Adam Liptak, The Lackluster Reviews That Lawyers Love to Hate, N.Y. Times (Oct. 21, 2013), http://www.nytimes.com/2013/10/22/us/law-scholarships-lackluster-reviews.html.

[2] Hon. Toko Serita, In Our Own Backyards: The Need for a Coordinated Judicial Response to Human Trafficking, 36 N.Y.U. Rev. L. & Soc. Change 635 (2013), available at http://socialchangenyu.com/2013/02/15/in-our-own-backyards-the-need-for-a-coordinated-judicial-response-to-human-trafficking.

[3] 133 S.Ct. 2652 (2013).

[4] 133 S.Ct. 2675 (2013).

[5] We hope you will continue to check out this website, which our Web Editors work hard to keep up-to-date and relevant.

Shifting Foundation: The Problem with Inconsistent Implementation of Federal Recognition Regulations

Lorinda Riley

The establishment of federal recognition is the cornerstone of federal Indian law. All rights, including criminal jurisdiction, tax status, gaming rights, and hunting and fishing rights, stem from this initial acknowledgment. Yet prior law review articles have focused only on the overarching process of federal recognition without closely examining the actual administrative findings of the Department of the Interior.

This article will provide an in-depth examination of the regulations governing whether an Indian entity is entitled to the benefits of a government-to-government relationship with the United States. Specifically, this article examines the regulatory process for filing a federal recognition petition and critiques four of the criteria that petitioning Indian entities consistently fail to meet. By reviewing Department of the Interior decisions, this article demonstrates the inconsistencies in regulatory interpretations and guidance documents as well as the inherent biases in the current regulatory framework.
Finally, the article discusses potential solutions to these problems and identifies the first step necessary in order to fully understand the depth of this regulatory issue.

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Playing Devil’s Advocate: The Constitutional Implications of Requiring Advocacy Organizations to Present Opposing Viewpoints

Alex Reed

Credit: sabihclicks. Creative Commons License.

For more than sixty years, the Internal Revenue Service has employed a methodology test in determining whether a nonprofit organization’s advocacy of a particular viewpoint is sufficiently educational to warrant its designation as a public charity. The test’s focus is not upon the viewpoint advocated, but upon the method used by the organization to communicate its viewpoint to others. Consistent with this purpose, the Service has identified four factors that are indicative of a noneducational methodology.

The Service’s application of the test, however, suggests the existence of an additional, previously undisclosed factor. This factor regards a refusal to present opposing viewpoints as indicative of a noneducational methodology.

This article concludes that the methodology test is unconstitutional for three reasons. First, the test is void for vagueness because it does not disclose one of the factors considered by the Service in evaluating whether an advocacy organization may be said to employ an educational methodology. Second, the test violates the compelled speech doctrine by requiring advocacy organizations to accommodate the very speech they are organized to oppose. Third, the test imposes an unconstitutional condition by conditioning advocacy organizations’ eligibility to receive tax-deductible contributions on the absolute forfeiture of
their First Amendment rights.

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By the Courts, for the Bar: Judicial Exemption of Lawyers from the Scope of Consumer Protection Laws

Chris Fox-Lent

The highest courts in a number of states have invoked the principle of separation of powers in order to insulate lawyers from liability under consumer protection laws. The courts have held that regulation of the bar is a judicial
function and cannot be exercised by the legislature through consumer protection statutes prohibiting deceptive trade practices (often called Deceptive Trade Practices Acts, or DTPAs). This article exposes a number of problems with these state court decisions. First, courts rely on the assumption that these DTPAs “regulate” lawyers in a way that treads on the judicial branch’s authority. An explicit justification of this assumption would have broader consequences. Second, courts fail to ask whether judicial regulation of lawyers fares any better under separation of powers analysis than legislative regulation of lawyers. A
systemic bias of judges in favor of lawyers is at work in these opinions, which courts should counteract by giving deference to the constitutional and statutory interpretations of other branches. Courts should increase deference to legislatures by abandoning the “clear statement rule” that reads lawyers out of DTPAs as written. Finally, courts should seriously consider the statutory interpretation undertaken by state attorneys general, both because these officers are often charged with enforcing DTPAs and because they are the most obvious officials to look to for the executive branch’s interpretation of a statutory provision.

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