Was Barack Obama's greatest contribution to legal scholarship the Bluebook?

Law reviews do many things. And one of the things they usually use is The Bluebook, a citation manual. The Bluebook is a student-run and managed by the editorial boards of four law reviews. It started in 1926 as a pamphlet that "did not pretend" to be exhaustive. Today, it spans 500 pages and embraces the most picayune details. (A favorite: when a lower-case letter "l" is used in a statutory citation, that letter should be italicized, as "l" to avoid confusion with a numeral "1.")

The Bluebook is constantly revised. It is currently in the Nineteenth Edition, and revisions for the Twentieth are underway.

It is, by far, the most dominant force in legal citations. The late 1980s saw the last serious challenge to the supremacy of the Bluebook. The University of Chicago introduced the Maroonbook, a proposal championed by, among others, Richard Posner (who has been notoriously critical of the Bluebook). But it never really caught on. The 2013 edition (PDF) spans just 91 pages, in contrast to the 500-page Bluebook. Law reviews, however, prefer, I suppose, the cottage industry of citation complexity.

One of the most significant revisions of the Bluebook occurred in the Fifteenth Edition. The Fifteenth Edition was published in 1991, five years after the previous edition. It ballooned in size by nearly 50%, from 272 pages to 366. A summary of the major changes comes from James W. Paulsen (South Texas) in a 1992 Harvard Law Review article, An Uninformed System of Citation. (Special thanks for Frank Bennett for directing me to this piece.)

First, the Bluebook formerly recommended "parallel citation" of cases to the "official" reporter of a state's judiciary and to the "unofficial" West version.

The most significant change in the new Bluebook is the command to drop all parallel citations to state court reports in law review articles and legal memoranda. Although undoubtedly well intended, this decision underscores The Bluebook's unhealthy bias against state courts and bolsters West Publishing Company's dominant position in the legal publishing market.

Official state reports have been criticized by academic librarians in recent years as expensive, difficult to obtain, and wasteful of shelf space. No matter what the merits of these complaints, The Bluebook's editors have gone overboard in their response. . . .

Unfortunately, as measured against the goals of fair competition and low-cost access to the law, the new Bluebook makes a bad situation worse. By favoring West Publishing over official state reports, The Bluebook will surely enhance West's market position.

Second, the Bluebook formerly included only the last names of authors for law review articles, and no identification for student work.

Now all authors - whether of books, newspapers, magazines, or law review articles (yes, even student authors) - are to be cited by their full name.

Two explanations exist for why this particular rule change could have come about, and Harvard admits to being influenced by both. First is the feminist complaint, epitomized by a recent Harvard Law Review author's observation that excluding first names represents “hierarchy, rigidity, and depersonalization, of the not altogether neutral variety.” The second reason is bibliographic: in this age of multiple Smiths, Jones, and Dworkins, first names help.

Finally, Professor Paulsen noted that the Bluebook took on a "social conscience."

In addition to devising citation forms for rock music and slipping their own names into print a hundred times or so, they have insured that the new edition will always be remembered as the citation manual with a social conscience. The Bluebook is now "politically correct," containing many new or different examples of proper citation form, at least fifty of which happen to have been written by women. The subject matter of the new examples includes feminism, sexual orientation, sexual harassment, reproductive rights, AIDS, blacks, Native Americans, Americans with disabilities, police brutality, prisoners' rights, apartheid, the Iran-contra scandal, ozone depletion, ocean dumping, oil spills, Bhopal, nuclear testing, Pacific fur seals, and whales. We are even reminded in a parenthetical note that "recycling helps the environment." The Bluebook, by the way, is not printed on recycled paper.

I've excerpted a few selections from the Fourteenth Edition and the Fifteenth Edition, side-by-side, so that you can see the changes.

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And what does this have to do with President Barack Obama?

Mr. Obama graduated from Harvard Law School in 1991. He was the president of the Law Review, and he served in that role from 1990-1991. The Harvard Law Review generally leads the effort to revise the Bluebook, and the Fifteenth Edition was released in 1991.

Many have speculated about Mr. Obama's contribution to legal scholarship, from trying to determine what anonymous case comment he wrote while on the journal, to exploring his role on the Law Review, to examining the selection of articles while he served.

But, perhaps, Mr. Obama's greatest contribution to legal scholarship may have been helping to revise and update the Bluebook.

Of course, the precise role of any given editor is unknown, except to those participants. Perhaps the changes are trivial. Or, perhaps it's a Rorschach test, where some may like or dislike the Fifteenth Edition changes because they like or dislike Mr. Obama's policies. Or, perhaps it's a silly over-reading of a citation manual edited over 20 years ago. But as I have never seen anyone make this connection before, I thought I'd flag it as, perhaps, noteworthy.

Legal education is innovating by educating more non-JD students

 Don't call it a comeback, but legal education is doing things it's never done before. And one of those is educating non-JD students at a record rate.

When I recently noted the decline in LSAT takers and likely decline in prospective applicants and matriculants, I was careful to emphasize that this was a decline in the JD student pool. Legal education, however, is broader than simply educating JD students. It includes LLM programs, SJD programs, and other kinds of master's or law-related education.

Commentators like Bill Henderson have noted that law schools must adapt to a dynamic legal practice, including the recognition that the legal services industry is much broader than simply the practice of law by licensed attorneys. Law schools have responded. They are offering a broad array of non-JD options, which are not only enticing record counter-cyclical enrollment, but are also an increasing percentage of the school's enrollment.

The chart below, derived from ABA data (PDF), shows the last 25 years of non-JD enrollment as a percentage of law school enrollment.

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Non-JD enrollment was in the 4-5% range until around 2000, when it increased to around 5-5.5% for the next few years, and has risen each year since 2007. In the 2008-2009 and 2009-2010 academic years, non-JD students were 6% of all law school enrollment. In 2010-2011, it was 6.2%; in 2011-2012, it was 6.5%; and in 2012-2013, it was 7.4%.

Part of that recent increase is, of course, relative.  The non-JD percentage appears higher in the last two academic years in particular simply because of the significant drop-off in JD enrollment (from about 147,500 in 2010-2011 to 139,000 in 2012-2013). But it's also higher in absolute terms, too. Consider the last 10 years.

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In 2003-2004, there were around 7700 non-JD students enrolled in law schools. That number was relatively steady for several years, but increased to 8300 in 2007-2008; 9100 in 2008-2009; nearly 9800 in 2010-2011; over 10,000 in 2011-2012; and just over 11,000 in 2012-2013.

A rejoinder may be, "Well, more JD graduates, in the face of an extremely poor economy, are being shuttled into LLM programs, which inflates the non-JD enrollment numbers." Perhaps. But there are a few reasons that likely does not explain the entire increase.

First, it used to be the case that students enrolled in non-JD degrees were "counted" in employment statistics, which gave schools an incentive to encourage students to attend LLM programs. That is no longer the case, and it has been on the radar of law schools for at least a couple of years. Schools cannot "inflate" employment statistics by "hiding" students in LLM programs. Instead, enrollment in non-JD programs by JD graduates is, in all likelihood, because of a genuine belief that such a degree would help the graduate succeed, not solely to postpone employment.

(Admittedly, some JD graduates may still pursue LLMs to avoid a challenging employment market. But if the downturn in JD applicants reveals anything, it is that there is some information communicated to prospective students in legal education, and that they are responding. Perhaps there is not enough information about the effectiveness of LLM programs for these matriculants. But, as the next couple of points show, there are additional factors to suggest this is not the case.)

Second, schools have been developing degree programs specifically for non-lawyers. If we use crude terms and call law school a "product," then the legal education "industry" has "innovated," responded to the "market," and developed a new "product."

The "Master of Studies in Law" is one such degree. These one-year degrees offer familiarity with the law but not a full-out JD experience. (In fact, they often expressly prohibit those with a JD from applying.) NYU offers one in tax for accountants, economists, and tax professionals. Yale suggests that its preferred student is a scholar or a journalist who wants to learn more about the law. Northwestern has developed a Master of Science in Law for engineers, scientists, and medical professionals. And there are many more.

Third, American education is one of our leading exports. It is perhaps no surprise that law schools are providing a "product" that is increasingly attractive to foreign-educated attorneys. Recent New York and California bar show increasing numbers of foreign-educated attorneys who have studied in American law schools take the bar.

The downturn in JD applicants has a significant effect on law schools. But educating JD students is not the sole thing that legal education does.  And it is important to note that law schools are, to some degree, innovating in this area and attracting many more non-JD students than at any time in history.

For legal education, the worst may be yet to come

I confess that I'm not one inclined toward the doomsday scenarios concerning legal education. But the decline in LSAT takers, as I blogged about earlier, portends very significant problems for legal education through at least 2017.

Consider below a chart of the LSATs administered, total JD applicants, and total JD matriculants from 2004 through 2014. The 2013 data is not available yet, so I projected it and the 2014 data. I'll discuss the methodology for the projection and figures of note below.

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Predicting the future--particularly predicting the future based upon assumptions derived from the recent past--is a particularly perilous task, but I'll assume the responsibility and offer a few thoughts.

LSAT takers have never been a perfect proxy for law school applicants for a number of reasons. For one, some people, once they take the LSAT, decide not to apply to law school. For another, the figures reflect all LSAT takers, first-time takers and repeaters. 

A couple of trends have actually inflated the LSAT taker statistic--or, put better, reflected a much higher number of LSAT takers than those who actually applied for law school. First, self-imposed standards have become much higher for test takers, especially those near the top, and they are frequently not applying to law school after taking the LSAT.  Second, schools were originally required to report the average of admitted students' LSAT scores, but a recent change allowed schools to report the highest LSAT score instead of the average. The result was a sharp increase of LSAT repeaters, inflating the number of LSAT takers compared to the prospective applicant pool.

Compared to the Fall 2004 cycle, when about 68% of LSAT takers translated into JD applicants, the last three cycles have seen about 50-52% of LSAT takers actually apply to law school. I projected that forward. In 2012, we saw 67,900 applicants; projecting to 2013, it would have been 58,760 (the final numbers should be out soon).

We have two LSAT tests administered for the 2014 cycle, and two to come. We've seen a roughly 10% decline year-over-year. Projecting that year-over-year decline, we can expect around 101,000 LSATs administered. Assuming another 52% LSAT taker-to-applicant yield, we should expect 52,844 applicants.

What's most striking is that 101,000 is the number of JD applicants in the Fall 2004 cycle.  We're essentially expecting half that number of applicants for the Fall 2014 cycle.

We can also then project JD applicants to JD matriculants (or enrolled students). In 2004, about 48% of all applicants ultimately enrolled in law school. That number quickly increased to around 58-60% for the Fall 2007 through Fall 2010 classes. For the Fall 2011, it was 62%. For the Fall 2012, it was 65%.

I assume that, as the prospective applicant pool continues to shrink, schools are not cutting their class sizes at the same rate. So I assume 68% of applicants enroll in law school for Fall 2013, and 72% for Fall 2014. 

Schools had a fairly consistent number of enrolled students from Fall 2004 through Fall 2008, around 48,000 to 49,000. The peak was in the Fall 2010, with 52,500 enrolled JD students. That declined to 48,700 in Fall 2011, and 44,500 in Fall 2012. I project about 40,200 enrolled in Fall 2013, and about 37,800 enrolled in Fall 2014. 

Note another striking figure: there are probably about 52,500 applicants in the Fall 2014 cycle; there were about 52,500 enrolled first-year JD students in Fall 2010.

That large class from the Fall 2010 cycle has now graduated. Schools are generally smaller now, and continue to have smaller incoming classes each year.  So, why might there be a serious problem through at least 2017? Because the Fall 2014 cycle represents a student body that will graduate in 2017. Another decline in enrollments this year will translate to a decline in class size that will persist until they graduate in 2017. 

Of course, my assumptions could be wrong (and very likely are, to some degree!), or conditions could change. But I think it would be safe to assume that the challenges facing legal education will continue to increase next year. 

(UPDATE: An earlier version of this post had a dotted line as a "projection" for the total LSATs administered in the 2012-2013 cycle. But those figures are actual, not projected, and the graph has been updated to change the dotted line into a solid line.) 

LSAT takers declining sharply for the fourth straight year

The total Law School Admissions Tests administered is a good indicator about the interest in attending law school. And as an indicator, it indicates that interest continues to decline.

The number of October 2013 LSATs administered was 33,673, down 10.9% from October 2012 and down about 45% from the October 2009 LSATs administered.

The cumulative total of LSATs administered is 57,670, compared with 63,003 at this point last year, 71,981 in 2011, 87,318 in 2010, and 93,341 in 2009. 

The chart below illustrates the cumulative LSATs administered and the continued decline. 

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UPDATE: It may be useful to note that I previously blogged about how schools racing to maintain LSAT and GPA medians has distorted how we evaluate student quality. A further decline in LSAT takers will likely only worsen this problem.

Why aren't more journals like the Case Western Reserve Law Review?

What is the purpose of a Law Review?

It's 2013, but consulting the first issue of the Harvard Law Review (1 Harv. L. Rev. 35 (1887)) may prove instructive.

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In many ways, the purposes of law reviews have not changed in 126 years. There is less an emphasis on "news" from the law school, but from symposia to student scholarship there is a school-centered emphasis in the scholarship published. The journal seeks to assist the profession as a whole (although its success achieving this point is certainly debatable). And it hopes to provide scholarship of "permanent value."

And while the purposes (as a general matter) have not changed, neither have the means. Apart from the thickness or a journal, the frequency of publication, the length of articles, the quantity of citations, and so on, law reviews look pretty much the same. They communicate to a generalist audience with a general subject matter. They are published at a few intervals each year, in print, with a lengthy editing process. They are printed, and circulated, and the process resumes.

The bulk of student editors' work is focused on citations. While the original Bluebook manual for citations, published in 1926, did "not pretend" to be exhaustive, the latest manual spans over 500 pages, is updated every few years, and consumes the overwhelming portion of students' attention. And students have just a year in charge of the journal: they accept positions in the early spring of their second year; they hit the ground running in article selection and editing; and, in one year, they turn over their duties to another set of students who begin again. Institutional memory is limited. Rewards for innovation appear few, as the process rewards catching up and meeting short-term goals in a one-year term over long-term investments beyond one's limited term.

But the Case Western Reserve Law Review has introduced a number of innovations to share scholarship and scholarly ideas in a variety of formats, and it has reconsidered some of the traditional means of scholarship in very good ways.

It has renovated its typography and publication format. It created a font, Legal Modern, [update: it is a "a repackaged distribution of Computer Modern for lawyers, not a new design"] designed for optimization both in print and on electronic media. It includes, among other things, "true" small caps. The old wide page margins were abolished in favor of very narrow margins, a recognition that reading an article in PDF on an electronic reader like a Kindle or iPad would improve. The old printed format had different headers on even and odd pages, assuming one viewed pages two at a time; the new format assumes single-page headers.

The law review hosts a podcast, Below the Line (available on iTunes), in which a recent author and two other scholars in the field discuss the author's recent work. It produces an organic and often lively discussion of the recent scholarship, and it provides an alternative outlet for learning about the work.

Its Twitter account is active, with a sense of humor and a high level of engagement. It accepts submissions via Twitter. It launched a Twitter symposium, first "Terrorism and Miranda," then on the Court's decision in Myriad, in which it retweeted law professors' thoughts on the matter and noted the "organic and lively" discussion that took place. And it's sponsoring a Lego Supreme Court giveaway for those who review a recent article published in the Law Review. It's more than simply a feed repeating the titles of articles: the social media is used as a different kind of presence.

(Let me offer a small word about letterhead bias and Twitter. The Cornell Law Review has a single tweet from 2010 and has over 400 followers. The Duke Law Journal has no tweets and over 350 followers. In contrast, the Case Western Reserve Law Review has interesting and unique content, an engaging and interactive presence, but boasts just over 250 followers. It's staggering to me that such a disparity exists.)

When I asked the Law Review about the barriers to innovation given a limited institutional memory, I was told that the enthusiasm from the previous editorial boards helps drive future boards to take the innovations and develop them. The ideas have been communicated to the new staff members at a very early stage with the hopes that they will take the inheritance and continue to improve upon the foundation created.

And what about the print edition itself? Well, the Law Review is going to preserve that form for a while longer, but I may have some words on it in a post to come. 

Why aren't more law reviews doing it?  Admittedly, institutional memory is a significant problem, as are the seemingly pressing short-term goals. But with vision and a staff that buys in, positive changes can occur. 

So take note, law reviews, about the changes that the Case Western Reserve Law Review has begun--and keep an eye out for future changes.  This is the way to operate a law review.

Special thanks to Volume 64 Publisher Elizabeth Horan for taking the time to discuss the Case Western Reserve Law Review with me.