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A Theory of the Academic Labor Market:

Steve Teles has an interesting discussion here.

He suggests that a nontrivial amount of academic quality is "endogenously" produced, e.g., that the "rich get richer" when it comes to scholarly success. This is almost certainly true and, it seems to me, it may even be even more pronounced in law schools. Most of the factors he identifies applies with equal force to legal academia, such as access to resources, research assistants, etc. Even the recognition and resources of institutions such as the Olin Foundation and the Federalist Society disproportionately flow to the top of the law school food chain. But the legal academy's unique institutional arrangement that it has neither peer review nor blind submission seems to strongly reinforce the factors that Steve notes in other fields.

In particular, it is my impression that law reviews operate very strongly on a signaling model of article quality. Because of their relative inexperience and lack of knowledge, law review editors seem to have difficulty accurately determining quality directly. To deal with this information problem, it appears that law review editors rely heavily on a signaling model of quality--i.e., if you are a "known" person or teach at a high-ranked school, this is thought to serve as a proxy for quality. And once your articles appear in a brand-name law review, you are thought to be important or accomplished.

This seems to be Teles's endogenous production of scholarly value within the academic market with a vengeance.

As an aside, I certainly don't think of peer review as a panacea for the law review system. The law review system has the advantage of allowing many flowers to blossom and to enable heterodox views to make it into print more readily than does the peer review system (although the peer review system has virtues of its own). So I think an argument could be made on either side of the issue regarding peer review.

But the absence of blind submission and review practices at most law reviews seems simply baffling to me. I can see no possible explanation for how the quality of law reviews and legal scholarship is improved by not having blind submission for law reviews. At least anecdotally, the "letterhead" effect seems quite powerful for law reviews (I am not aware of any rigorous empirical study that has been performed to date--if there is one, please let me know).

Steve:
I can see no possible explanation for how the quality of law reviews and legal scholarship is improved by not having blind submission for law reviews.

I think you answered your own question:

Because of their relative inexperience and lack of knowledge, law review editors seem to have difficulty accurately determining quality directly.

If we assume that article editors are bad at distinguishing between good and bad articles, I'd much rather see them rely on a strategy of printing articles by "big-name" authors, which at least stands a fighting chance of rewarding quality, than leave them to their own ill-fitting devices.
3.8.2006 5:44pm
SP:
Don't disagree - I've read quite a few law review articles, both by "name" people and people from "name" schools that I've cringed at. At this point, I do my research based on certain subject matters I've decided on beforehand, so I'm not so much into, say, picking up the latest issue of the Harvard Law Review unless it has something I am actually dealing with. The unusual variation in quality has in a sense reduced my curiosity, since it seems sometimes that a lot of effort is going into finding little satisfaction.
3.8.2006 5:47pm
Anthony (mail) (www):
I don't think these signalling mechanisms developed because of an inherent information problem. Even the worst law reviews receive between 1000-2000+ submissions a year for what, a dozen article slots? When a journal receives that many submissions it's virtually impossible to give every single submission a thorough evaluation (I think one articles editor stated in a blog post last year that most submissions are lucky to just get a couple of minutes for the initial evaluation). If you autoding or have an extreme bias against students / practitioners / clerks for non-"name" judges / fourth tier school professors / etc. and autoaccept or have a strong bias in favor of "name" professors / judges / etc. it cuts the work down by a very significant amount.

Of course, it wasn't always like this -- I believe one law review article I read mentioned that in the 70s or 80s even good student-edited journals received as few as 250 submissions a year. Unless I'm remembering incorrectly, it seems authors (and email submissions) are to blame for the current state of affairs.
3.8.2006 5:51pm
billb:
I'm not sure what peer review is intended to do in the social sciences and humanities, but in engineering and the hard sciences with which I'm familiar, reviewers are asked to address novelty, significance, and technical correctness and not any normative or moral sort of rightness. I suppose that it may be impossible to make such a distinction in the softer disciplines, but I don't see why it has to be that way. Sure, editors with a backbone are required to ride herd over their selected reviewers, but this shouldn't be too onerous a task to prevent lawyers from adopting the publication methods of the rest of the academy.

In fact, I don't see why law students couldn't continue to run the operations of the law journals. They could still even make a first cut of the submitted articles, and then send them out for peer review. After the reviews were in, the student editors could still make the final selection of of which articles to publish using the reviews as their primary guidance. Such a system might make law review a more prestigious job than it is now.
3.8.2006 5:52pm
Anthony (mail) (www):

In fact, I don't see why law students couldn't continue to run the operations of the law journals. They could still even make a first cut of the submitted articles, and then send them out for peer review.


So how many submissions would the students reject as part of the "first cut" when their journal receives 2000 submissions a year for 12 slots? Assume this is a flagship law review at a Top 14 school that loses very few, if any, articlesto expedites. Do the students reject 50 out of 2000? 500? 1500? 1950?

Doesn't sound like this idea is very feasible, unless you think professors at School X would be willing to do hundreds of peer review evaluations a year.
3.8.2006 6:00pm
Kovarsky (mail):
i am a recent graduate. i know this evidence is only anecdotal and i'm hesitant to relate the experience because it could seem gross and self-aggrandizing, but with 2 exceptions, my piece this year was moved on to a second round at every top 20 blind submission journal, and 1 top 20 without blind submissions (where it will be published in 2 weeks).
3.8.2006 6:13pm
Commenterlein (mail):
Double-blind review in other disciplines died a quick death with the advent of Google and SSRN. It usually doesn't take more than five seconds to find out who wrote the ("anonymous") paper you are reviewing. Hence introducing a double-blind review system at Law Reviews today makes little sense.

The greatest weakness of legal academia is the lack of a rigorous tenure system. My impression is that even top law schools tenure the vast majority of their assistant professors. About ten years ago I had a conversation with a senior faculty member at Harvard Law who told me that one of their assistant professors hadn't really published much in the last six years, so they decided to wait another year before bringing him up for tenure review. I almost keeled over hearing this. In my discipline, the tenure likelihood for an assistant professor at a place like Harvard or Stanford is definitely below 30%. I was told that Yale Law had moved closer to a tenure system comparable to other disciplines, and that this was one of the reasons for Yale's academic success.
3.8.2006 6:23pm
Commenterlein (mail):
Anthony,
You are right, peer review is incompatible with the current system of simultaneous submissions to multiple law reviews. If law reviews introduced peer review, it has to imply that authors are only allowed to submit to one journal at a time.
3.8.2006 6:25pm
Anthony (mail) (www):
While we're relaying anecdotal evidence: So far this cycle, I've received 26 rejections for my latest article submission (which I started to submit two weeks ago). Of those rejections, about 90% explicitly stated that the only reason I was rejected was my student status... in fact upon further inquiry, a few admitted to not even having read my article. A few others said I should resubmit the same article when I graduate... I guess waiting a year to submit the exact same article w/o any revisions would somehow magically improve its quality. I should note that every journal that explicitly mentioned my student status as the reason for rejection was either a flagship journal at a third or fourth tier school, or a secondary journal.

Seems submitting a CV was a bad idea (thought my previous publication in a peer-reviewed law journal would eliminate, or at least reduce, this bias). Next time I'm just not going to submit anything, or only submit a page that lists my previous publications and nothing else.
3.8.2006 6:31pm
Anthony (mail) (www):

You are right, peer review is incompatible with the current system of simultaneous submissions to multiple law reviews. If law reviews introduced peer review, it has to imply that authors are only allowed to submit to one journal at a time.


I don't even think you need to go as far as exclusive submission -- I believe this problem, and many of the problems with law reviews, could be fixed by limiting the # of total submissions. Larry Ribstein had a very good post about this last week, where he advocates for a uniform system of submission (I'm actually finishing up an article making a similar argument, though I take a somewhat different approach than Ribstein).

If journals had to deal with evaluating 200 submissions a year rather than 2000, you no longer need to use CVs as a screening mechanism, since the # of submissions is a lot more managable and editors can devote more time to evaluating them for quality (and when students are unable to determine whether certain pieces have merit it's much less burdensome to contact faculty for feedback on 20 pieces than about 200).
3.8.2006 6:42pm
JLR (mail):
This is a comment in two parts.

Part I:
Peer review only works if peers are doing the reviewing.

Law reviews are idiosyncratic in the realm of academic literature in that law students edit the top journals in the academic field. Imagine the American Political Science Review being edited by PhD candidates in political science. Even worse, imagine The New England Journal of Medicine edited by medical students and/or biomedical science grad students. I'm not sure physicians would be happy knowing that the top articles on major medical breakthroughs were selected by people who don't even have MDs or PhDs yet.

In response to billb, in the medical sciences there is to a certain extent some normative judgment -- a major journal such as the Annals of Internal Medicine may find an article is not "sexy" and "compelling" enough to warrant publication, thus passing on the "less sexy" articles that are on the "more obscure" topics.

For peer review to work, peers must be doing the reviewing. And it is my guess that law schools have too much investment in the current law review editorial system to change it to a peer review system. The current system does have its advantages. But this idiosyncratic model automatically differentiates the law review model from the standard academic and medical science model of blind submission and peer review, and by definition changes the nature of the publication process.

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Part II:
I think Steven M. Teles's theory about the "best scholars end up at the best schools" also connotes the following theory:

"The best students end up at the best schools."

This "rich get richer" phenomenon turns out to be a vicious cycle in my opinion.

For undergraduate education, at least 200 schools will all have top students -- but it seems that there are only maybe 25-50 national universities, and 25-50 liberal arts colleges, that will have (to use a term from Grutter) a "critical mass" of "best students." The rest of the schools will have a small number of top students that were attracted by merit full-tuition scholarships, geographic proximity, or some other calculus that led them to attend, say, the University of North Dakota over Stanford even if they were accepted to (or would have been accepted if they had applied to) Stanford.

For law schools, in my opinion, this phenomenon gets even worse. Stories abound (and how much they apply to each and every individual case is unclear) that if one wishes to work at the upper echelons of legal practice and/or become a law professor, one either (a) can only choose among 20-30 law schools in the country; or (b) must get an LLM after receiving a JD at whatever law school he/she attends.

More than pretty much any other professional or academic field, where one goes to law school determines how one is judged throughout one's career. Even if you got a 4.0 GPA and a 180 on your LSAT, you're better off paying your own way through a Yale or a Harvard than taking a full-tuition merit scholarship at a Hofstra or a Syracuse if your goal is to use your law degree to become a law professor and/or work at the most upper echelons of legal practice (become a Supreme Court clerk, work for a top "BigLaw" firm, or acquire whatever brass ring is most desired).

There is no question that one can be a very successful lawyer without being either a law professor or do the "BigLaw" track. But if you go to Harvard, those two options are still very much available to you without having extra education as an LLM student. If you turn down a Yale or a Harvard to go to a Hofstra or a Syracuse, and your ultimate goal is to keep all possible career paths open, my understanding is that all you are doing is either (a) closing off certain career paths, or (b) guaranteeing yourself extra time in school receiving an LLM to open up those career paths -- and that is time which you could have spent elsewhere if you attended a different, higher-ranked law school.

A lot of this is driven by the primacy of the US News and World Report rankings. For whatever reason, some applicants continue to feel better about going to law school #16 than law school #24, even though the difference between the two is usually (on US News at least) statistically insignificant, and #24 may actually fit a given applicant better (in any and all relevant dimensions) than #16. Hopefully, enough applicants have learned not to sacrifice everything to go to a certain school just because it is insignificantly higher in the US News rankings.

This topic about endogenously produced academic quality not only applies to professors. It also applies to students, often forcing certain students to make impossible choices between ensuring financial and living convenience, and making sure that all possible future career avenues are available to them once they graduate law school. In terms of the latter (maximizing options for career paths), it does not appear to be wise for a prospective law student to turn down a Yale or a Harvard to go to a school that, while financially and culturally may be a better fit, will most likely eliminate any possibility of pursuing certain career paths unless one gets an LLM after receipt of the JD.

Thanks.
3.8.2006 6:43pm
Edward A. Hoffman (mail):
Prof. Zywicki's post suggests that a quest for better articles is the main reson why editors so readily accept papers from well-known authors, but overlooks the role of winning prestige for the journal itself. This is less of a concern for journals which are already among the elite, but is probably a major concern of most others.

I was executive articles editor of the then-new Southern California Interdisciplinary Law Journal when I was in law school, and I remember that our board (myself included) and our predecessors deemed it crucial to get articles from several reasonably well-known authors in our early issues in order to gain credibility and be seen by authors as a desirable forum for their work.

As it happens, our first issue included an article by eventual VC-er Jim Lindgren (whose name, unfortunately, was spelled "Lindren" on both the cover and the contents page), and another early issue contained papers from a symposium on a work by VC-er Randy Barnett with contributions from Randy and several other notables, along with part two of an unrelated discussion between Richard Epstein and Erwin Chemerinsky. Not a bad way to start out, though it surely helped that Erwin was a USC prof. at the time.
3.8.2006 6:45pm
JLR (mail):
Just to clarify something regarding Part I of my 3.8.06 6:43 pm post

I should not have used the term "blind submission" in Part I of my comment since that is technically inaccurate -- the idea is simply standard peer review: the author does not know who reviews the article except that it is a faculty member with appropriate expertise in an appropriate department at a university; i.e., a "peer." Hence, "peer review." Very few if any medical journals do official "blind submission" since it is essentially impossible to disguise the identity of an author (since an author needs to cite his grant number, IRB approval, and other identifying characteristics).

Thanks for allowing the clarification to Part I of my 3.8.06 6:43 pm post.
3.8.2006 6:52pm
Jesse R.:
It seems plausible that non-blind reviewing would benefit authors from top schools, but the evidence doesn't clearly support that claim. Rebecca Blank (an economist, and dean of the U. of Michigan school of public policy) did an experiment to test the effects of blind vs. non-blind reviewing at the American Economic Review, the top journal in economics. She found that blind reviewing _hurts_ authors at schools just below the top rank, but has no effect on authors at top schools (or at poorly-ranked schools).

Now, there are lots of reasons to think that this result might not generalize to law reviews. But at the very least, it seems unsafe to assume that blind reviewing would eliminate biases in favor of authors at top-ranked schools.

The study is called "The Effects of Double-Blind versus Single-Blind Reviewing: Experimental Evidence from The American Economic Review," American Economic Review 81(5), December 1991, pp. 1041-1067. Here's the link, for those with access to JSTOR.
3.8.2006 7:20pm
frankcross (mail):
First, the peer review process is very infected by the same problem identified for law reviews. The editors aren't blind and they steer the reviews. Not to mention that true experts in the field can often tell the author from the contents. Oh, and remember the Tracey George study discussed on this site? Peer-reviewed journals overwhelmingly published authors from their own school

Second, you would have to have exclusive submission to do peer reviews. I'm not aware of a single peer-reviewed journal of high calibre that does not insist on this.

However, I can't see why law reviews don't use blind copies. I'm sure a lot of cheating would sneak into the system in favor of big names, but it would surely ameliorate the bias at least a little.
3.8.2006 7:47pm
Kovarsky (mail):
Everyone ignoring the one great asset of student-run law reviews - they're not repeat players. There's no problem of a quid pro quo, which makes it easier, not harder for younger academics to break in.
3.8.2006 7:54pm
billb:
JLR: You're absolutely right...well sort of. I forgot to mention germaneness. Reviewers for science and engineering journals are asked to make sure that the article is appropriate for the journal they submitted to. I'm not sure this really counts as "normative," but I get your point. This might be a serious problem for the law reviews that seem to be by and large general in nature. I'm not sure how the editors at the big general science journals (Science and Nature, for example) handle this, but I imagine that their generally low acceptance rate keeps the number of submissions managable.

Anthony: Yes, clearly 2000 submissions a year is untennable for a peer-reviewed journal. Exlcusive submission would necessarily become the norm. This is probably a good thing. Sorry for not mentioning that this is how things are generally done in the hard sciences and engineering.
3.8.2006 7:56pm
SLS 1L:
We might add something about plagarism. For the article I cite-checked last semester, I found that the author had included verbatim text (or barely changed text) from virtually every cited source, and the senior editors didn't care. I don't know if this is representative, but if it says anything at all about the quality standards of law reviews my already-low opinion of legal scholarship will only go lower.
3.8.2006 8:07pm
John Lederer (mail):
Isn't the solution as imple as removing the author's name from the student editors making the pick? Sure they could find it out by google and detective work, but who would bother.

What possible relvance does an author's CV have to the value of an article? You have the article before you, why worry about a proxy?
3.8.2006 8:25pm
Anthony (mail) (www):
Replying to several commentators.


However, I can't see why law reviews don't use blind copies. I'm sure a lot of cheating would sneak into the system in favor of big names, but it would surely ameliorate the bias at least a little. (frankcross)


Well, let's try to do a cost/benefit analysis... What do law reviews gain from switching to blind submission? Not that much... maybe a few academics on blogs like this might make a couple of posts saluting them for seeing the light, but that's about it. And of course there's potential (but not a guarantee) that they'll publish higher quality pieces.

However, the costs are enormous. By eliminating the easiest submission screening mechanism (prestige/background) without reducing the total number of submissions, any journal that adopts blind submission has effectively tripled or quadrupled its current workload. Think of yourself as a law review EIC -- do you want to be the guy who tells your fellow 2Ls/3Ls that they're going to have to spend an extra 2 or 3 hours a day the month before finals and in the beginning of the school year giving the 2000 submissions in the slush pile a close read rather than autorejecting the majority of submissions based on scanning the CVs? And, on editorial boards where the EIC doesn't have dictatorial power to change things, do you really see a policy like that, which tremendously increases the workload but confers little immediate benefit, a majority vote?

Don't get me wrong, I think blind submission is a great idea and I wish every journal would adopt it. However I don't see this happening unless something radical happens, like faculty taking over the top decision making positions on journal editorial boards and leaving the grunt work to the student editors.

Note that a few journals unilaterally implementing blind submission wouldn't even have that big of an impact; after all, Harvard and Yale (and perhaps a few others) have (or at least claim to have) blind submission. Remember, perhaps one of the biggest signalling mechanisms other than an author's CV is a request for expedited review; unless there's a move to limited or exclusive submission, expedited review is still going to exist, and "prestigious" authors will be making the bulk of those requests (since some, if not virtually all, other journals will continue to not use blind submission). Unless I'm misremembering, I believe someone posted once that 85% or so of Harvard or Yale's acceptances originated from expedite requests -- so, even if H and Y are honest about blind submission, bias towards pieces that have received offers elsewhere pretty much eliminate the benefit... and this will continue to hold unless all or virtually all journals abandon expedites and/or move to single or limited submission.


Everyone ignoring the one great asset of student-run law reviews - they're not repeat players. There's no problem of a quid pro quo, which makes it easier, not harder for younger academics to break in. (Kovarsky)


I agree, but that journals are not repeat players brings about a host of other major problems, including the problems being discussed here. Also I wouldn't be too quick to say there's no quid pro quo going on; one study (maybe the George study mentioned earlier?) found that student-edited law journals are significantly more likely to give offers to articles written by members of their faculty (anecdotally I've also heard stories of some journals giving "cold offers" to members of their own school's faculty so they can expedite elsewhere). So, while this might be a different kind of quid pro quo than in peer reviewed journals, it's still there.


Anthony: Yes, clearly 2000 submissions a year is untennable for a peer-reviewed journal. Exlcusive submission would necessarily become the norm. This is probably a good thing. Sorry for not mentioning that this is how things are generally done in the hard sciences and engineering.


Sorry for the misunderstanding -- I've generally considered "peer review" and "exclusive submission" separate concepts in this discussion since there are quite a few law journals that are peer reviewed but do not require exclusive submission (in fact I published in one last year). Your suggestion would work if the journal moved to exclusive submissions -- however, what incentive would any student-edited law review have to do something like that, unless it was a Chicago-Kent situation where the faculty basically took complete editorial control of the journal?
3.8.2006 8:38pm
Anthony (mail) (www):

What possible relvance does an author's CV have to the value of an article? You have the article before you, why worry about a proxy?


You're a 2L who got selected to be an Articles Editor. It's mid-March. Finals are a month away and you've been behind in your classes all term long because of all the source hunts and cite checks you've had to do all term, as well as your involvement in clinics and lord knows what else.

You are given 250 articles to personally screen for your journal (the other three articles editors got 250 each as well). Each article averages 70 pages. The articles are on a wide range of topics, from constitutional law (which you find interesting but aren't an expert on) to bankruptcy (which you have absolutely no familiarity with at all).

In addition to the 250 articles, you have 250 CVs that list the author's institutional affiliation, prior publications, etc.


Now, do you really have to ask why an articles editor would worry about a proxy when he has the article in front of him?
3.8.2006 8:45pm
billb:
Anthony: Let me suggest that we think about the cause rather than the symptoms. If article editors are getting too many articles, perhaps they need to switch to an exclusive submission system.
3.8.2006 9:09pm
Anthony (mail) (www):
billb: Yes, we should examine the cause rather than the symptoms. However, for most student-edited journals a unilateral switch to exclusive submission would bring about a net loss -- while the total # of submissions would go down to a managable level, the quality of submissions would likely go down as well. After all, why would an author who thinks he has a decent shot of getting a better placement than Third Tier Law Review submit his piece to Third Tier Law Review exclusively? If an author is willing to go the exclusive submission route, why not just submit to a peer reviewed journal instead of a student-edited one? Third Tier Law Review would end up attracting submissions primarily from those who couldn't place their papers in the previous cycle and/or don't have enough confidence in their writing to submit to a peer reviewed journal. Even if someone like the Cornell Law Review did this it would encounter similar problems.

Not to mention that there are no effective mechanisms in place to actually enforce such a policy... It's not like the West Dakota Law Review, which has on exclusive submission policy, is going to care if Third Tier Law Review sends an email saying Professor X violated TTLR's exclusive submission policy. As someone else pointed out earlier, journals aren't repeat players, and there'd be no incentive for other student edited journals to enforce another student edited journal's policy in the absence of some kind of centralized system that coordinates all submissions.

I think the best way to approach this is from a law review editorial board's perspective, and think of ways that law school administrators, faculty, and others can persuade law reviews to adopt such policies given the market for law review submissions and current burdens on law review editors.
3.8.2006 9:36pm
kalsj;fklsfs:
I don't think this is such a big deal. Suppose a really good article, written by a nobody, is passed over by the top law reviews, even though it would have been published by one of them had it been written by someone with a reputation. Such an article would surely be published somewhere (it's hard for me to believe that a really good article would be passed over by each of the thousands of legal journals out there; keep in mind that a lower-ranked journal's goal is to find really good articles by nobody in order to build its own reputation). It will then be accessible via Westlaw and Lexis and eventually that silly "market place of ideas" will take over and build a reputation for the author based on the quality of the article, not the law review.
3.8.2006 9:47pm
Stephen C. Carlson (www):
billb says: Yes, clearly 2000 submissions a year is untennable for a peer-reviewed journal. Exlcusive submission would necessarily become the norm. This is probably a good thing. Sorry for not mentioning that this is how things are generally done in the hard sciences and engineering.

Not just in the hard sciences and engineering. The peer-reviewed New Testament Studies by Cambridge University Press required my submission to be exclusive, and that is the general practice, I understand it, in other historical-critical fields as well.

What would be the resistance to moving to an exclusive submission system? Would it be that it takes longer for articles to find a home and get published? It probably does not matter so much for classical studies, but timeliness might be more important for law. (However, SSRN can address that need, as I imagine arXiv.org does for physics.)
3.8.2006 9:49pm
Anthony (mail) (www):

What would be the resistance to moving to an exclusive submission system?


I think there are two arguments to make here, one addressing the merits of exclusive submission v. simultaneous submission (which you partially address by mentioning timeliness).

However I think the biggest concern is the practicality issue -- even if exclusive submission is superior to simultaneous submission, how do you actually implement it? According to the WLU Law Journal Submission website there are at least 559 student-edited law journals in the U.S. (probably more since I know of about half a dozen that aren't listed on there). If one of those 559 moves to exclusive submission and no one else does, that journal will be at a competitive disadvantage relative to the other 558 student-edited journals it's in direct or indirect competition with -- and that one journal is at an even bigger competitive disadvantage if it's not a very good journal.

For exclusive submission to work, you need to get an extremely large number of journals (including the best journals, who are already doing pretty well under the current system and see no need to rock the boat) to simultaneously adopt it, in order to avoid any one journal from being at a competitive disadvantage... and you'd have to do this even though exclusive submission has the potential to hurt some journals on the lower end of the spectrum even if it is widely adopted.

How would you propose getting that sort of collective action to take place?
3.8.2006 10:02pm
Gene Vilensky (mail) (www):
I'm largely with Prof. Cross on this one. In mathematics, it is obvious who the person submitting the article is and that's why in many (most?) journals, submissions are not blind.

I am not sure how humanities journals work, but in the sciences, most journals are independent of universities. There are exceptions of course, though even then, many of those journals have editors who are outside that institution (Duke Mathematics Journal, Annals of Mathematics, and Indiana Math Journal being prime examples).

Maybe a way to deal with this problem is to decouple law journals from particular schools and make them "national." Maybe even compartmentalize them into particular fields, for the most part, with several high-profile general journals that accept submissions from all fields. Some of this exists, for example, in Law and Econ. But in other fields like Con Law, it seems as though it is still pretty much published exclusively in generalist journals.

The phenomenon of editors steering journals that Prof. Cross mentions may be something only done in the humanities and some social sciences. I don't think that this is common in the sciences. I guess the sciences are less "politicized" in this regard (NB: by politicized I don't mean ideologically, but rather along academic lines... e.g. analytic philosophers panning the continentals, etc.)
3.8.2006 10:19pm
billb:
Anthony: I don't think that a law journal can make the move to exclusive submission unless it also makes the move to peer review. A peer-reviewed law journal has a chance to stand out from the other 558. If one is successful, others might switch to the new model. Largely for the reasons you outline, I don't think that a journal can go exclusive-submission or peer-reviewed without doing both simultaneously, but the first one to do both may start something valuable for the law academy.
3.8.2006 10:53pm
Perseus (mail):
Imagine the American Political Science Review being edited by PhD candidates in political science.

As a member of the APSA with a PhD, I don't see how that would make APSR any worse than it already is.
3.8.2006 11:12pm
ReaderY:
If one applies a prestige model, in which law reviews gain prestige by associating themselves with important people (and vice versa), than I don't see what quality, or virtually any other aspect of the content, has to do with it. Are you seriously suggesting that a law review would risk its prestige by publishing a no-name over a big name merely because the content has higher quality.
3.9.2006 4:52am
JLR (mail):
Both the post and comment thread have been informative and interesting.

Part II of my comment from 3.8.06 6:43 pm seems to have been lost in the sauce of the comment thread (perhaps because, unlike Part I of my post, it does not address law reviews specifically).

As a result, I am going to repost Part II below. I am really hoping that someone will provide some constructive, helpful feedback on the issues that I adumbrate in the post. Thanks.
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[Reprint of Part II of my 3.8.06 6:43 pm comment (link here)]

I think Steven M. Teles's theory that the "best scholars end up at the best schools" also connotes the following theory:

"The best students end up at the best schools."

This "rich get richer" phenomenon turns out to be a vicious cycle in my opinion.

For undergraduate education, at least 200 schools will all have top students -- but it seems that there are only maybe 25-50 national universities, and 25-50 liberal arts colleges, that will have (to use a term from Grutter) a "critical mass" of "best students." The rest of the schools will have a small number of top students that were attracted by merit full-tuition scholarships, geographic proximity, or some other calculus that led them to attend, say, the University of North Dakota over Stanford even if they were accepted to (or would have been accepted if they had applied to) Stanford.

For law schools, in my opinion, this phenomenon gets even worse. Stories abound (and how much they apply to each and every individual case is unclear) that if one wishes to work at the upper echelons of legal practice and/or become a law professor, one either (a) can only choose among 20-30 law schools in the country; or (b) must get an LLM after receiving a JD at whatever law school he/she attends.

In law, more than in pretty much any other professional or academic field, the graduate/professional school (in this case "law school") where one graduates from determines (in part or even in whole) the course of one's career.

Even if you got a 4.0 GPA and a 180 on your LSAT, you're better off paying your own way through a Yale Law or a Harvard Law than taking a full-tuition merit scholarship at a Hofstra Law or a Syracuse Law if your goal is to use your law degree to become a law professor and/or work at the most upper echelons of legal practice (become a Supreme Court clerk, work for a top "BigLaw" firm, or acquire whatever brass ring is most desired).

There is no question that one can be a very successful lawyer without being a law professor or doing the "BigLaw" track. But if you go to a Yale Law or a Harvard Law, those two options are still very much available to you without having extra education as an LLM student. If you turn down a Yale Law or a Harvard Law to go to a Hofstra Law or a Syracuse Law, and your ultimate goal is to keep all possible career paths open, my understanding is that all you are doing is either (a) closing off certain career paths, or (b) guaranteeing yourself extra time in school receiving an LLM to open up those career paths -- and that is time which you could have spent elsewhere if you attended a different, higher-ranked law school.

A lot of this is driven by the primacy of the US News and World Report rankings. For whatever reason, some applicants continue to feel better about going to, say, law school #16 instead of law school #24, even though the difference between the two is usually (on US News at least) statistically insignificant, and #24 may actually fit a given applicant better (in any and all relevant dimensions) than #16. Hopefully, enough applicants have learned not to sacrifice everything to go to a certain law school just because it is insignificantly higher in the US News rankings.

This topic about endogenously produced academic quality not only applies to professors. It also applies to students, often forcing certain students to make impossible choices between ensuring financial and living convenience, and making sure that all possible future career avenues are available to them once they graduate law school. In terms of the latter (maximizing options for career paths), it does not appear to be wise for a prospective law student to turn down a Yale Law or a Harvard Law to go to a school that, while financially and culturally may be a better fit, will most likely eliminate any possibility of pursuing certain career paths unless one gets an LLM after receipt of the JD.

Thanks.
3.9.2006 9:55am
eddie (mail):
If the purpose of Law Review were to advance the world's knowledge and understanding in the field of law, then the Internet would soon make Law Review obsolete. Anyone with something valuable to say could publish as much as they like, as often as they like. The value of what they publish could be rated by anyone, and any interested reader could follow the recommendations of any rater they found reliable. The same could be said of any academic field, of course; I suspect this is already starting to happen in the field of Computer Science and may spread to other scientific and engineering fields.

Since the actual purpose of Law Review is to establish prestige rankings, the existing system will continue exactly as it is for quite some time.
3.9.2006 11:55am
Steve Lubet (mail):
"What would be the resistance to moving to an exclusive submission system?"


the top reviews are unlikely ever to switch to exclusive submission because they are currently able to have lower-ranked reviews perform their triage. editors at top reviews don't need to read all 1000 submissions, they just have to wait for the expedite requests. that wouldn't happen in an exclusive submission regime, and the top reviews would be likely to get nearly as many submissions because everyone would submit there first.
3.9.2006 2:19pm
Steve Lubet (mail):
"What would be the resistance to moving to an exclusive submission system?"


the top reviews are unlikely ever to switch to exclusive submission because they are currently able to have lower-ranked reviews perform their triage. editors at top reviews don't need to read all 1000 submissions, they just have to wait for the expedite requests. that wouldn't happen in an exclusive submission regime, and the top reviews would be likely to get nearly as many submissions because everyone would submit there first.
3.9.2006 2:19pm
Steve Lubet (mail):
"What would be the resistance to moving to an exclusive submission system?"


the top reviews are unlikely ever to switch to exclusive submission because they are currently able to have lower-ranked reviews perform their triage. editors at top reviews don't need to read all 1000 submissions, they just have to wait for the expedite requests. that wouldn't happen in an exclusive submission regime, and the top reviews would be likely to get nearly as many submissions because everyone would submit there first.
3.9.2006 2:19pm
WB:
JLR, people are ignoring your comment because it's just a long-winded way of saying what most people already know about law schools. What sort of feedback would you like on that? It's only tangentially relevant to the discussion about academic publishing.
3.9.2006 5:49pm
Stephen C. Carlson (www):
Thanks, Anthony and Steve Lubet. I agree that the lower-ranked reviews would not be much inclined to be the first to go to an exclusive submission system, and Steve's comment explains why even the higher-ranked reviews won't either.

When I was on law review at GMUSL, it was for a brief period of time in which Dean Manne was trying to implement his philosophy that studient-edited law reviews ought to be editing student work and peer-reviewed journal ought to handle the professors' work. I admit it made theoretical sense for me, but it was so unpopular among the student body that Manne's idea could not succeed.
3.9.2006 11:31pm
Former Editor:
Prof. Zywicki:

I hope these comments helped you understand why it shouldn't be "baffling" that blind review is rare.

Professors create the system, then they complain (you are the repeat players, not us). As a former articles editor, I can generally say that a group of 4-6 2Ls, who have been properly vetted for a spot on the selection committee, can figure out a good article. Although it's difficult for us to know what its "contribution" is (i.e., how many will read it and how many times will it be cited) because we lack the legal background, a good article (or perhaps cover letter) will explain this to us. Professors (should) know their first audience is a group of 2Ls, and act accordingly.

After reading over 500 articles myself, there is a correlation between glossy law school name and article quality, with one caveat that there are many great (and usually established) law professors at all law schools.

Everybody, including professors, take this correlation way too far. For example, my Law Review had an author who refused to cite to articles outside of the "top XX" even though they were on point and supportive of his unsupported statements. His stance was based on the so-called quality of the Law Review being cited, NOT on who wrote it or how many times it had been cited. Such conceptions among the professorial class only feed the "vicious cycle."

I'm at a "top" Law Review that publishes big names and small names. I heavily emphasized this point to our new selection committee - so if there's any signaling going on, it's not overt. Not really sure you could truly measure this signaling effect, since you'd have to accomodate for the very real correlation that does exist.

What would be nice is if more professors understood the hectic nature of the process. Submit a good cover, abstract, or have a good introduction that answers the basic questions we all learned in high school: thesis, roadmap, and answer the ultimate "who cares?" question. Frankly I don't care about a CV. Give the first law journal to send an offer out a break by not expediting to the some of the schools in front, and withdrawing from the ones below. If you need an extension on the offer of publication, be reasonable - don't stay in the hunt at that so-called better school because they keep telling you they need more time.

I have a question for the professors out there: When the tenure evaluation comes around, how much does the quality of the law journal affect your decision? Do you read the professor's pieces yourself and determine your own measure of quality? Or does several "top XX" articles in the CV form a good proxy? In fact, do you read them BLIND (without reference to the law review that published it)? Last year, I had two (younger) professors specifically ask for extensions b/c the tenure decision was coming up. Essentially, the offer from my school was really good, but an offer from say, a top 5 school, would be even better. I certainly was not an articles editor that was going to contribute to someone not getting tenure. My Law Review ended up publishing both pieces.

And so the vicious cycle continues...
3.10.2006 4:15pm
JLR (mail):
WB,

Sorry you didn't like Part II of my comment, which I chose to reiterate in hopes of getting constructive, substantive feedback.

But I don't see anything wrong with my exercising the power of voice (to use A.O. Hirschman's terminology). And, of course, people have the right to ignore my voice.

If such information is widely known, the fact that there is no real agitation to make the system any fairer seems like a shame to me.

And if it is so widely known, then why is Steven M. Teles's theory so interesting? It would seem that endogenous production of scholarly quality would be just as "obvious" as endogenous production of student quality.

Maybe all these fact patterns aren't as widely known as you claim. Otherwise, why would someone in the top 10% at Hofstra or St. John's have more difficulty getting a job in NYC than someone in the bottom quartile at Columbia or NYU? One would think that those who are truly "in the know" would be able to realize that someone who excelled at Hofstra or St. John's would likely be a better attorney than someone who struggled through Columbia or NYU.

But, c'est la vie.
3.10.2006 7:39pm
Aebie:
I suspect that the economics don't support peer review. Peer review in the hard sciences, for instance, may involve two to three individuals and adds considerable time to the submission process. The lengthy back-and-forth in peer-review is one of the reasons that pre-prints became available on the Internet (such as physics pre-prints at Los Alamos). There was a real sense that it was taking too long for major breakthroughs to get published because of the labor-intensiveness of the peer review process. If law reviews were peer-reviewed, it would likey mean that either a permanent editorial board (or several positions) would be necessary or that there would have to be much more coordination between law review EICs. Perhaps you'd have to phase in peer-review over the course of several years and have "staggered" article acceptance. Thus an EIC might see "her" articles in print a year or more after she was no longer the editor and would have actually published someone else's articles because of the peer review process.

Also, many (most?) journals that use peer-review are run by societies or are now farmed out to scholarly journal publishers. Many of the societies have moved to scholarly journal publishers as well. By scholarly journal publishers, I mean the Elseviers, Blackwells, Kluwers, Pergamons, and Wileys, etc. of the world.

Law reviews are notoriously inexpensive. I did a quick Google search on subscription rates and many are in the $50-$60 range. Contrast that to the following Kluwer-published law journals: European Company Law ($531), European Review of Private Law ($563), European Environmental Law Reporter ($637), and European Public Law ($420). Even accounting for the sorry state of the dollar against the Euro, those prices are significantly higher than student-run law journals. BTW, the Duke Mathematical Journal costs $800 for individuals and $1445 for instituions (print or online only; the print/online combination is higher).

It strikes me as a little odd that law clings so tightly to its EIC as a badge of honor. Its one of the few things that follows a lawyer around virtually forever. (Is it carved on tombstones?) Once one is done with college and has secured one's first job, the fact that one was Student Body President in college disappears from relevance, but EIC or Articles Editor of a law review seems to linger on and on and on. I think this leads law schools to decide that they MUST have a law journal (or two, or three, or more) because they need to be able to dangle this badge of distinction to prospective students and employers. But if you went to peer-review and needed to hire a journal publisher or the professional staff to support the peer-review process, where are the subscribers who are going to shell out the bucks this costs? I suspect more than a few law reviews would fold. Not that that wouldn't necessarily be a bad thing, but then what is there to dangle? Free student labor is what keeps the whole process afloat.

Finally, part of me wonders what there is to peer-review. Quite a few law review articles read more like extended (and more heavily cited) op-eds than what one thinks of as research in other fields.
3.11.2006 8:22pm