Law Reviews

In Further Defense of Law Reviews, More or Less

Our system of legal publishing reflects what legal scholarship is like

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Everybody I follow on Twitter is complaining about the system of student-run law reviews again. I think I stand by everything I wrote in In Defense of Law Reviews eight years ago, but I thought I would add a few thoughts.

The law review system has many benefits that we shouldn't take for granted (speed! careful cite-checking! a huge number of publication venues), but the focus seems to be on the downsides. It seems to me that there are three different angles for thinking about those (1) number of false negatives in publication decisions, (2) number of false positives in publications decisions, and (3) inefficient uses of time and energy.  Depending on what one thinks is the biggest problem with law reviews, these call for different approaches.

(1) On the number of false negatives, all of us have had the experience of writing an excellent article that didn't get the placement or attention we feel it deserves. If this is a systemic problem, I think the solution is straightforward: create a new journal. If there are good pieces not currently finding a good scholarly home, presumably there will be an interest from both authors and readers. And my sense is that this is more likely to happen for methodologies or fields that may be underappreciated by student law review editors—tax, etc.

This does require some amount of time and effort and money (although less than it used to), but it could be a good use of resources for those in a serious field subject to serious neglect. And if starting a whole new journal is too much work, maybe professors just need to introduce other ways of credentialing valuable scholarship, whether by awarding prizes or other signs of peer approval. If a field has no market or energy for these, I doubt that student-edited law journals are the problem.

(2) A different complaint about law journal publishing is false positives—"bad" articles that get placed in "good" journals. Creating new journals is unlikely to solve this problem, nor is increasing peer review. Each of these supposedly bad articles was written by exactly the kind of person who will otherwise be asked to provide peer review, so I think this really stems from a lack of agreement about what constitutes a sound methodology, a valid argument, or a substantial contribution, in particular fields. That's a real problem with legal scholarship, in my view, but not one that can be cured by peer review.

All that we can do as individual scholars is to make our own individual judgments about the quality of work, and not be too quick to outsource those judgments to journals' placement decisions.

(3) A final complaint is that the system is wastefully inefficient, especially of the students' time, which is spent simultaneously reading and skimming hundreds of pieces being read and skimmed by other students in a giant melee to take and hold the best pieces. Here the usual proposals are to find ways to limit simultaneous submissions and/or requests for expedited review at other journals.

I don't have a strong view about such proposed reforms, but it does seem to me that they're going to have costs. They may well *increase* the number of false negatives by reducing the number of independent assessments an author can get. Or depending on how authors react (for instance if all authors start with the "top" journals), these reforms might instead end up slowing down the time from submission to acceptance, otherwise one of the great strengths of the law journal system.

Maybe there are still some reforms here that are worth making, I can't tell.

***

In the end, I don't think there's much escaping from some basic facts about the current system of legal scholarship:  There is a lot of it, a lot of it is not very good, but because of the breadth and diversity of methodological approaches in the legal academy even law professors don't completely agree among themselves about which is good and which is bad. Legal publications largely reflect this, and I doubt they could stop it if they tried.

NEXT: “Some References Are Just Sophomoric Attempts at Humor”

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  1. “other students in a giant scrum”
    Scrum has a very well defined meaning in rugby. It does not mean a mob or a gang brawl. As an attorney, Baude, try to use the word correctly, or use a more appropriate term.

    1. This article was not about rugby. Many words take on different or broader meanings outside their original field.

      “Three sheets to the wind” does not refer to loose lines.

      “Come hell or high water” is not a reference to Noah.

      1. It is not about rugby, but is a use of a word that shows gross ignorance and is not even slightly correct by analogy. Baude is not a guy on the street. He has pretenses of being an intellectual.

        Your examples don’t impress. I would guess that you use the word exponentially incorrectly also and don’t care that you do.

        1. “Impress” is related to lithography or some such, and counterfeiters. Which are you?

          That you think you get to decide which words can be sued in what context does not impress.

          1. Very weak comeback. You make a smart-ass snark that has nothing to do with a fair criticism that I made. Moreover, my use is the first meaning of “impress” and has been so for ages.
            What are you an etymologist?

            1. What fair criticism? You complained that a word has more than one meaning, and the one you preferred didn’t fit. Who cares?

    2. Good catch, thanks! Fixed.

      1. Thank you, Will. I expected nothing less from a product of Chicago Law.

    3. “Scrum has a very well defined meaning in rugby.”

      It also has a well-defined meaning in software development.

  2. One of my objections to the law review system is the allowing of the authors to shop their manuscript around to multiple publications simultaneously.
    Such a practice is not allowed in truly peer-reviewed journals and is generally considered unethical. It also says that it’s okay to waste students time for the gratification of authors’ egos.
    Overall it speaks poorly of the academic integrity of the field.

    1. I read that, and I was a little stunned.

      I cannot imagine the abuse on an editor’s time to spam 10 or 20 journals simultaneously with the same article.

      1. Yet all significant peer reviewed journal demand a statement from the authors that the manuscript is not under current consideration by any other journal.

        1. Of course. It’s would be an abuse of the editors time and the peer reviewers time if it wasn’t the case. It’s hard enough to find good peer reviewers as it is.

          Can you imagine if you had to increase the workload 10-fold? And if the peer reviewers knew that the only reason they were reviewing the manuscript was so that the author could use the acceptance to “expedite” the manuscript’s review in a higher tier journal? And can we really be surprised that the upper tier law journals are using “expedite” as a way to winnow the massive number of submissions?

          Why bother doing a good job on the peer review? Why bother with it at all, if the only reason you’re doing peer review is so it can be “expedited” at a different journal. That’s the reason for all the “crap” the positive and negative submissions. The massive redundant workload and feeling that you’re just giving free labor for someone else.

          There’s a simple fix. No simultaneous submission. If you want to submit to Yale Law Journal, that’s great. You can’t submit anywhere else until they’re done with the review, unless you withdraw it. There’s no “expedite” …because you promised not to submit it anywhere else. Requests for “expedites” are met with automatic rejection.

          Yale Law Journal will still get many great submissions. And their workload will drop greatly

          1. AL,
            Exactly right.

          2. “Of course. It’s would be an abuse of the editors time and the peer reviewers time if it wasn’t the case. It’s hard enough to find good peer reviewers as it is.

            Can you imagine if you had to increase the workload 10-fold?”

            Law students, who make up the staffs of law reviews, have a near-infinite supply of free time. By ABA rules, they aren’t allowed to work full-time and attend law school full-time at the same time.

    2. “One of my objections to the law review system is the allowing of the authors to shop their manuscript around to multiple publications simultaneously.”

      This is only a problem if we decide that each submission is for exclusive publication. Let every journal publish if the article was submitted to it. The one with the fastest-to-print editorial process gets to be first.

  3. I like the free accees to legal articles. The role of know nothing students in editing cutting edge articles is ridiculous. It came from a lazy, besotted alcoholic dean. It takes 10000 hours to learn a subject. These kids have put in hundreds of hours in their survey course of a subject.

    All articles should be rewritten ubtil their achieve a reading lwvel of 8th grade. It should avoid violations of critical thinking and avoid cognitive biases.

    Publish to a relevant blog. Get the wisdom of the crowd in the comments.

    1. David,
      You don’t need law reviews for that.
      Legal academics can upload their manuscripts to SSRN and submit to real journals that provide bona fide peer review.

      1. SSRN is great.

        To the extent the salaries of academics are subsidized by the taxpayer, submissions to journals costing a lot money and charging $50 for a copy of an article is not appropriate. I commend legal academia for making its product available to the public.

        If I want to keep up with this technical field, it is quite expensive.

        https://ascelibrary.org/page/jbenf2/subscribe:bridgeengineering

        1. I don’t care about bridges. If you do then the journal could be worth the price.
          The salaries are academics are paid by their universities from tuitions and other income. Summer salaries can come from research grants. So your comment misses on that score. Recipients of government grants are now generally required to publish open access or to place their research publications in freely accessible repositories such as SSRN.

        2. So here’s what you should do.
          Start your own journal, and solicit submissions from the legal academics looking to publish. Then charge whatever fee you like for articles. Not from the public, from the author.

    2. “The role of know nothing students in editing cutting edge articles is ridiculous”

      Whereas the role of know-nothing Internet twits is almost non-existent in the current system. Unacceptable!

    3. “All articles should be rewritten ubtil their achieve a reading lwvel of 8th grade.”

      Irony alert. If you can’t even manage to write at at least a 4th-grade level, why would your opinion on this subject have any merit?

      “Publish to a relevant blog. Get the wisdom of the crowd in the comments.”

      Problem is, the crowd lacks wisdom, if we’re using you as an example of “the crowd”.

  4. Apply your argument (2) to any other peer review process and it runs into the same problem. Which should tell you that your argument is broken. The purpose of peer review is to avoid aberrant peer participants from sneaking bad scholarship in good publications. Peer review has its faults, but the fact that it can’t be perfect is not one of them. Because the alternative is less perfect.

    1. Sounds right.

      Peer review would surely help.

      Isn’t a big part of problem 2, and 1 as well, using student editors?

      Creating new journals – how many are there already? – doesn’t look like much of a solution to a flawed editorial process. That the author thinks the article is good doesn’t make it so.

      1. Starting new journals does not necessarily imply handing them over to students. Either select a good faculty advisor or don’t create the new journal attached to a law school in the first place. Get a big law firm to attach their name(s) to the journal and cover the publication costs.

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