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The Emperor's New Clothes:

David's analogy is basically sound, I think. As to how it "got started" (which a commenter asked), I think there is some path-dependency at work here in law that is different from other scholarly fields. Most law reviews got started as offshoots of state-based law schools. The Alabama or Missouri Law Review (or wherever) existed to publish articles on developments in the state's laws. The students were going to practice in those states. The article selection process was not really competitive. It was not illogical to have the students edit the articles which were essentially extended case comments, not disquisitions on Habermas or amateur empirical studies. Students can read cases and figure out what the professor is saying about them. Students cannot competently read and judge most of the "major" scholarship that is produced today. I'm sorry, but they just can't.

What I think we have today is path-dependency imposed by what amounts to a cartel model of the law review market. The professors at "elite" law schools look at publishing in "elite" journals as a valuable signal because, well, those journal publish their work and the work of their buddies so they assume that those law reviews must know what they are doing. And the article selection process is a signalling model as well--students, who are unable to discern quality directly because they know so little, instead have to fall back on a signalling model of quality, namely the prestige of the author's institution.

So what we end up with is a circularity--students look to the prestige of the law school as a signal of quality of the article, and in turn, those schools look at the prestige of the publication as a signal for the quality of article.

This also contributes to the frequent boom-and-bust cycles of legal scholarship, where an idea becomes hot for no obvious reason, other than that someone "important" thinks it is important, so everyone talks about it and since all the important people talk about it the law reviews think it is important and so they publish articles on it. Until it is recognized that the ideas are typical law professor hand-waving with no real-world relevance or serious empirical support and it eventually drifts off.

It is a silly, indefensible system, as most cartels are. It does create market opportunities for some schools to actually look at the actual quality of a person's work rather than the trendiness or useless signalling value of placements.

But will it be seriously reformed in coming years? It is not obvious to me that this is an unsustainable cartel, at least for the foreseeable future. After all, it turns out that "reputation" is itself is based largely a signalling model too. So it is not obvious where the incentive to reform the system will come from.

True, because of the way they work, law reviews are laughing-stocks in the academy at large. I've never heard a scholar in another field opine that she wished that their journals were more like law reviews. I've published in at least 5 economics journals that I can think of, and it is simply a superior system (without even getting into the nitty-gritty of peer review versus non-peer review). But it is not obvious that being thought of as a laughing-stock in the larger academy will provide an incentive to reform the system which seems to be largely self-contained and insulated from meaningful competition. So while I share David's aspiration for the emergence of a better system I'm not sure that I share his optimism.

Anony:
I think it's worth pointing out one benefit of student-run law reviews: they can turn around an article in a matter of a few months instead of the (more) months or years that blind peer-review journals typically require. And law journal authors are able to send their articles to a large number of journals at once, whereas peer-review journals often demand exclusive rights to review a work.

That said, the growth of the internet largely negates any timeliness advantage that student-run law reviews have. It's a silly system, but as Todd says, no one has a serious incentive to change it so it's not going anywhere in the near term.
9.10.2008 4:11pm
wm13:
I am not sure what the complaint is. Elite law reviews are publishing the kind of articles law professors want to write, no? It's true that those articles have no influence on what practitioners do and little influence on what judge decide, but that's because law professors aren't much interested in what practitioners do or what courts decide.

If the claim is made that articles in, say, professional journals of sociology or history or literature are less tendentious, theoretical, or divorced from the concerns of ordinary citizens than law review articles, then that's just not true. Remember the "Social Text" scandal? That was a peer-reviewed journal.
9.10.2008 4:30pm
VA attorney:
Prof. Zywicki, I'm interested in what your point re poor ability of law students to judge scholarly articles says, if anything, about the value of Obama's experience as president of the Harvard Law Review?
9.10.2008 4:45pm
blabla:
But doesn't the student-editor system prevent law reviews from becoming biased? Some entire academic disciplines have become completely one-sided ideologically (anthropology, sociology, etc.) probably in large part because the journals are run by people who are all really liberal. This could easily happen in the legal academy (especially when 95% of the law profs who donate to a Presidential candidate give it to Obama), but it won't as long as students work as editors. This concern isn't as great in fields like econ, where there is more empirical work.
9.10.2008 4:57pm
Marco:
According to the infallible series of tubes, "Social Text ... at that time had no peer review process"
http://en.wikipedia.org/wiki/Sokal_affair
http://www.complete-review.com/reviews/sokala/theshoax.htm

Not that I am claiming that Sokal could not have pulled it off anyway.
9.10.2008 5:03pm
Spitzer:
I thought the law review system started at Harvard under Brandeis in the 19th century, and that the desire for more academic review of law articles provided one incentive to Langdell's switch to a post-graduate law school format?
9.10.2008 5:09pm
Cornellian (mail):
If students didn't edit the articles professors submitted for publication, those articles would be riddled with unsupported assertions and laughable citation errors.

Personally, I don't see the need for law reviews at all anymore. Agree on a reasonably standard system of citation and formatting, print it to pdf, upload it to some generally accessible, permanent website and see if anyone notices. Just as it is with novels and movies, only time will tell whether the article is of any significance.
9.10.2008 5:16pm
wm13:
Marco, you (and wikipedia) may be right. But the people who edited Social Text are the same people who would have been peer reviewers for another lit crit magazine. My broader point, that journals in most scholarly fields are at least as tendentious and trendy as the average law review, and the average law professor, still stands.
9.10.2008 6:24pm
Grange95 (mail):

Students can read cases and figure out what the professor is saying about them. Students cannot competently read and judge most of the "major" scholarship that is produced today. I'm sorry, but they just can't.


As a former editor-in-chief of a middle of the road Midwestern law school, I have to disagree that law students "cannot competently read" a law review article, at least in the sense of comprehending the main points of such articles. I certainly can't remember coming across any law review articles that were too esoteric or too scholarly for me to understand.

I do agree, however, that law review students are ill-suited to "judge" the relative importance of a particular article. Deciding whether a particular article makes a valuable new contribution to a particular area of scholarship, or whether it is intellectual junk food, is most often a matter over the pay grade of law review staffers.

From my perspective, law review students serve as final editors for articles, adding footnotes, fixing grammatical errors, tightening language, etc. (In a couple of cases I can recall, even saving law professors from accusations of plagiarism due to sloppy / non-existent citations). The peer review process seen in other areas of scholarship mostly occurs after publication for legal scholarship; the best or most influential articles become widely cited and spin off responsive research and critiques, while the dreck dies off in obscurity.

Is the law review system flawed? Of course! But, how else will former law review staffers know how to identify their fellow elites out in the real world [snark]?
9.10.2008 6:47pm
Ak Mike (mail):
Law reviews serve two purposes: a sorting mechanism for law faculty advancement, and a special enrichment program for certain law students. The current system is OK for those purposes.

Because law schools are really trade schools, and because legal scholarship is largely irrelevant to the community at large, a better mechanism for sorting faculty would be one that selects for teaching ability and depth of knowledge.

However, academe generally seems fairly immune to rewarding teaching ability. Also, not everyone can write a multi-volume treatise, and not that many practitioners seem to drift back into the faculty, so the current system is probably better than a purely random selection process.
9.10.2008 8:11pm
Bama 1L:
If you think about how a law review operates, then you see that the importance of Obama's HLR credential is that he gained--brace yourself--executive experience.
9.10.2008 9:48pm
Bama 1L:
If students didn't edit the articles professors submitted for publication, those articles would be riddled with unsupported assertions and laughable citation errors.

Conversely, if law professors didn't know an army of Bluebook-equipped 2Ls would be set loose on their articles, they'd get the citations right.
9.10.2008 10:10pm
ReaderY:
I've disagreed with Professor Zywicki on many things, but I agree on this one. The people reviewing the articles have to be experts in the subjects. If students edited the engineering journals, would they be able to tell if a new design proposal was structually sound?
9.11.2008 1:27am
nonny (mail):
Even if we concede that law school should be more about training than research, the same charge can be hurled at unis in all fields. Given that elite schools care about research and faculty productivity, regardless of its relevance for teaching, does the current law review system encourage "good" research? I'm with Zywicki. It does not.

Hence the system seems to fail at both promoting "good" teaching and promoting the "best" (i.e. expert) research.

Put another way: Would any other field (Econ? Physics? Philosophy? Business? Music?) want to have its top journals refereed by students and benefit from it? The answer is surely No.

So maybe all schools should focus more on teaching than research (another debate entirely). But within the context of scholarship, the law review system is a joke.
9.11.2008 12:04pm
kjp:
I think that you're overlooking three arguments in favor of student-run law reviews that I feel are often ignored in the frequent faculty-driven complaints directed at these institutions:

1) Student-run law journals are educational institutions. Critics often ignore that student-run journals are not just factories for publishing scholarship, they are educational venues in which law students are exposed to legal scholarship and in which they train their critical thinking and writing skills. Without such heavy student involvement, very few students would know or care about what legal academics are writing about because in the grade-driven law school environment there is no incentive to spend free-time browsing through academic journals. Thus, without the student-run aspect, the ideas of legal scholars would be read by a much narrower audience, and would have little chance to inform the thinking of future lawyers. Is that what professional legal scholars really want?

Of course, beyond the education, law reviews also bring students together to work on complicated projects as a team. Students gain experience working with each other, and managing each other. The institutions also serve as morale and community building environments that (when done well) can greatly enrich the law school experience.

2) Proliferation of publishing opportunities. It seems to me that there are vastly more legal journals, and thus vastly more opportunities to publish legal scholarship than in other academic fields. This is largely due to the hours upon hours of free labor law students devote to reviewing and editing articles (something professional academics seem uniquely ungrateful for). Some might view this as a bad thing in that it allows sub-standard scholarship to be published, but I would argue that most academic fields publish sub-standard scholarship all the time. The proliferation of publishing opportunities in the legal scholarship world allows for publication on a broader range of topics -- from the purely academic to the purely practical -- and provides opportunities for people other than professional academics to publish their ideas and analysis. Contrary what some seem to believe, the practicing community does take account of law journal activity -- law journal articles of a practical nature are frequently published and these are in turn commonly cited in briefs, opinions, and treatises. If law journals were controlled by small groups of professional academics I don't think they would continue to serve the broader legal community in this way.

3) Law journals serve a public purpose beyond the needs of the legal academy. The critics of the student-run journal system often seem to think about the practice of legal scholarship as if it was just like any other academic discipline, and accordingly complain that students simply lack the expertise needed to run an academic journal. But, the law is supposed to be open and accessible to the public at large, and I think there is a strong argument to be made that legal scholarship (or a significant percentage of it) should be written in such a way that it is capable of being read and understood and thought about by non-expert members of the profession and intelligent, educated people at large. In most academic disciplines this is simply not the case, nor is there much of a need for sociologists or physicists or even economists to write for such a broad audience. If professional academics suddenly took over all the law journals I suspect that the work those journals published would become more esoteric and insular overtime -- they would transform into "legal studies" journals for academics interested in the purely academic discussions going on in that field. This, I think, would be a disservice to the broader legal community and to the public at large.

Finally, it bears noting that the students on law reviews, especially at the top schools, are pretty bright folks. They are also often quite well read in a variety of fields, and bring that variety to the table when coalesced into a law review. If one's writing doesn't appeal to these people, or if they cannot understand it, I wonder if that is more of a reflection on the quality of the author's work than the readers' qualifications for the job. This is not to say that certain functions -- like distinguishing strong empirical analysis from flimsy -- are not better served by professionals. But I can speak from experience working on a top law review that the people who make submission decisions are generally quite diligent at recruiting experienced faculty to help them bring specialized expertise to the analysis, and I think those students were quite good at eliminating much of the chaff that comes through a law review's door.

I'd also note that it's a free world out there; if professional academics are upset about the current system, start a competing model and see if you can do better.
9.11.2008 10:45pm
Larry Fafarman (mail) (www):
The dirty little secret is that most law journals are not peer-reviewed or even faculty-reviewed but are only student-reviewed! IMO the student editing of the journals is OK, but the lack of peer review of the articles is not. And these law journals are not just educational exercises for the students but have been cited thousands of times in court opinions! The Harvard Law Review alone was cited 4410 times in federal court opinions alone in the decade 1970-79 alone!

kjp said,
Finally, it bears noting that the students on law reviews, especially at the top schools, are pretty bright folks.

I heard a psychology professor observe, "you can't be a genius if you don't know anything." He was referring to the fact that well-educated people tend to do better on intelligence tests than uneducated people, but the principle also applies to particular narrow fields of knowledge. Your argument is what I call a "best butter" argument -- the March Hare in Alice in Wonderland said that putting butter in a watch is OK so long as it is the "best butter," just like you are saying that review of law journal articles by ignorant people is OK so long as they are the "best" ignorant people.

But I can speak from experience working on a top law review that the people who make submission decisions are generally quite diligent at recruiting experienced faculty to help them bring specialized expertise to the analysis

Bringing in experienced faculty from one's own law school is often not enough -- it is often important to bring in experts from outside one's law school and even outside the law profession altogether. And there is no guarantee that student law-journal editors will seek help in editing a law journal or reviewing law journal articles.
9.13.2008 5:17pm