In Further Defense of Law Reviews, More or Less
Our system of legal publishing reflects what legal scholarship is like
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.
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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.