I appreciate Jason's invitation to guest-blog. I'll try to resist the urge to promote my recent paper (with Todd Peppers) on Supreme Court law clerks, and instead focus my comments (mostly) on the ways in which the cultures of the legal and social science academies are sometimes in opposition, and if (and how) those tensions might be resolved. I'd like to start with the issue of peer review, a subject that has received a good bit of attention both on this blog (e.g., here, here, and here), and on several others.
The advantages of peer review (by which I mean single- or double-blind review of singly-submitted manuscripts, as is the standard practice in the sciences, including the social sciences) are well-understood: it ensures (or at least improves the chances) that reviewers will have the necessary expertise to evaluate the work, allows those reviewers to be frank in their evaluations without fear of retribution, and removes at least some of the potential for reviewer bias due to personal factors. While the system generally works well, it is also criticized for (among other things) being slow, inefficient, biased in favor of well-known scholars and/or institutions, subject to predation and plagiarism, and inherently conservative.
All of this is in stark contrast to law reviews, where multiple submissions, expediting, and student review are the norm. Law review turnaround is generally faster than that at refereed journals, and its proponents claim that it lacks the conservative bias that comes from older, more established established scholars acting as gatekeepers. At the same time, it is hard for me to imagine a system more ill-suited to evaluating the scientific merit of a piece of scholarship. In a nutshell, peer review's small-"c" conservative bias is good for the scientific enterprise, but sometimes comes at a cost to the publishability of really innovative work, while law journals' biases toward "hot topics" and unconventional ideas works in the opposite direction.
The implications, particularly for junior faculty, are clear. Social science departments devalue publications in non-peer reviewed outlets, leaving social scientists with an interest in the law little incentive to publish in even the most prestigious law journals. On the other side, law faculty with shorter tenure clocks are less willing to allow 2-3 years (or more) to pass before an empirical paper is published in a peer-reviewed journal, making law reviews all the more appealing. The overall effect is to exacerbate what Frank Cross has called the "unfortunate interdisciplinary ignorance" between legal academics and social scientists.
What to do, then? One alternative, suggested by Valerie Hans in a comment to an earlier post, is to write separate pieces, one for a law review audience, the other for peer-reviewed journals. More radical options call for altering the way the journals (particularly law journals) operate. One suggestion along these lines was offered a few years ago by Lee Epstein and Gary King, but many others exist. One I find particularly creative (and intriguing) is open peer review. The journal Nature has recently implemented this approach on a trial basis; their report on the experiment is due out this fall. Given law professors' apparent affinity for on-line scholarship (cf. SSRN, and this blog!), this strikes me as a particularly strong candidate as a model for peer review of empirical legal research.