February 24, 2005
The Bias of Law Review Page Limits
Posted by Victor Fleischer

I sent out my article yesterday on Expresso. It's a relief to have it off my desk. As I think about the cuts I made in response to the page limits, undoubtedly some of the edits improved the piece. It's certainly less intimidating to a general audience now. It's not excessively footnoted, and I try to keep the reader oriented without those annoying, cumbersome roadmaps. (As one of my colleagues put it, I try to keep the architecture to argument ratio down.) But I still think that the page limits disadvantage those of us who write about tax, business, or law and economics. Here's why.

A con law professor writing about the first amendment doesn't have to spend 15 pages at the beginning of the article explaining that we have this document called a Constitution, and this Constitution enumerates certain rights, and this is what a right is, and one of these enumerated rights is the right to free speech, and here it is in the first amendment, and this is what an amendment to the Constitution is ...

Whereas I really do have to spend 15 pages explaining what a venture capital fund is, what a buyout fund is, what a carried interest is, what an option is, what the allocation and distribution provisions of a partnership agreement do, what a clawback provision is, and so forth. Otherwise the claim that I am making -- that venture capital fund agreements are inefficient -- won't make any sense at all.

Part of the problem is methodology. I'm not writing a doctrinal piece, and I'm not writing a pure theory piece. I'm using some basic institutional law and economics. This demands a fairly rich description of the institutional factors that affect incentives. And I'm throwing in tax, so I need a fairly detailed explanation of how the tax rules work.

Now, taking as a given that 15 pages or so is background, that still leaves me 35 pages to make my claim. It's less than the 50 pages my con law colleagues get, but hey, who said life was fair. And I think I was able to do that in this Article. (And my last "big" article too, which only ran about 50 pages in the Tax L Rev.) But if I wanted to back up my claims with some empirical work like I did in my prior drafts, there's just no way it would fit.

So what we may see is a (further) division according to methodology. The general law reviews will remain the leading places to publish doctrine pieces. Empirical, business, tax, and economics work will gravitate even more to specialty journals, esp. faculty edited journals. I think we will also continue to see more important work in quasi-peer reviewed journals like the Journal of Corporation Law and the Virginia Tax Review, where students edit the articles but faculty has a say in choosing what goes in.

And maybe that's okay. My tenure committee isn't likely to look down on the Virginia Tax Review, and my target audience gets the article off SSRN anyway. This may be an area where specialization simply makes sense.

Maybe I'm wrong. I sent out the article yesterday on Expresso, and 24 hours later I have three offers, and one is from a general student edited review. And when the Harvard Law Review calls, you can be sure I won't be complaining about their page limits policy.

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