THE ONE institutional trait I did not expect the legal field to have is tolerance for new ideas percolating up from its lowest ranks - law students. Yet strange as it may sound, the legal fraternity, far from resisting fresh thinking from the lowest echelons of its hierarchy, encourages and nurtures a system in which law students can and do have a primary role in shaping the contours of legal thought.
The legal profession is, unsurprisingly, a world in which the written word reigns supreme. Although the adversarial process of court cases, associated briefs of lawyers and written opinions of judges form the backbone of both the legal profession and a proper legal education, the legal academy actively promotes more abstract thinking about the law.
You might assume that individuals who argue these cases, craft the legal briefs and write opinions are also the ones who are pushing the boundaries of legal thought - you would be wrong. In fact, the primary framework for exploring legal theory consists of student-run publications such as law reviews and law journals. These student-run publications constitute the institutional home for exploring the law, unlike the court system, which is the institutional home for resolving legal disputes.
For those unaware, a law review is the flagship publication of any law school. Membership on a law review is highly competitive and usually restricted to the top 10 percent of any law school, based upon academic performance and writing skills. A law journal, in contrast, often is more specialized and focused on a particular subset of law, such as international law. Again, law journals are quite selective. Both law reviews and law journals publish a combination of student-written and practitioner- or faculty-written work. All work that is selected for publication is reviewed and edited solely by students.
Unlike most other fields, the legal profession does not really have publications dedicated to exploring the law other than these law reviews and law journals where scholars can showcase their work. The result is that students who are involved in running these publications are in the highly privileged position of influencing the nature of legal discourse. Since the decisions regarding which topics to emphasize and which articles to publish are entirely the responsibility of these students, it is not an overstatement to say that in large measure scholarly debate in the legal community is placed firmly in the hands of its most inexperienced members.
Of course, it is not unheard of for members of the legal profession to complain about the inordinate influence of student-run law reviews and journals. Indeed, the legal field is somewhat unique in that the seminal articles that have a profound influence on legal thinking are not peer-reviewed. Instead, the review is conducted solely by students. Critics argue such power should be entrusted to experienced practitioners and not placed in the hands of neophytes.
With all due respect to such critics, I disagree. Let me hasten to admit that I am biased. I currently serve on the managing board of the Virginia Law Review, which obviously colors my view on the vital role of such publications. Still, there are a number of powerful, objective factors in favor of maintaining the status quo.
First, the student writing which is featured in law reviews and law journals represents fresh thinking not blinkered and burdened by the presumptions and predispositions that become ingrained through years of practice and experience. A similar principle is at work here as in the saying, "out of the mouths of babes." The very fact of their inexperience enables students to be unbiased.
Second, it makes good sense to have those who are less versed in the field review articles produced by some of the greatest scholars. If authors have to write to such an inexperienced audience, they are forced to carefully parse the various steps of their argument, leaving their concepts within the grasp of those with the lowest level of legal understanding. To make legal discourse more understandable to a wider, public audience, it is particularly useful to have students act as a brake against the obscure topics or erudite language that legal scholars sometimes favor.
Ultimately, student-run law publications serve a critical role in fostering innovative legal thinking. Perhaps now more than ever, especially in an era of fiscal austerity, it is essential to preserve the trust and confidence that the legal profession has placed in its students. Student empowerment with respect to legal thought is unique - let's keep it.
Sanjiv Tata's column usually appears Mondays in The Cavalier Daily. He can be reached at s.tata@cavalierdaily.com.
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