One of unwritten questions raised by the Nance-Steinberg study is whether the institution of the student-edited law review remains the appropriate outlet for the "best" legal scholarship, including interdisciplinary and empirical work.
Nance and Steinberg, for example, cite to Judge Posner's remark that the shift away from doctrinal scholarship has left Articles Editors floundering in a "scholarly enterprise vast reaches of which they could barely comprehend." According to this view, student-edited journals should focus on doctrinal work while the more sophisticated stuff should be reserved for faculty-run journals.
This argument is quite popular in some law professor circles. But I think it begs a more fundamental question: What is the purpose of legal scholarship? Perhaps this is a better way to phrase the question: What is the purpose of scholarship produced by law faculty?
A lot of articles published in prestigious faculty-edited law journals are impenetrable, using formal mathematical modeling that only a specialist could understand. There is no pretense that the journal is engaged in dialogue with a larger legal community. Under this paradigm, scholarly "success" is a remarkably insular conversation among elite academics. Why should a law professor be paid to write articles that graduates of his or her law school cannot understand? What is the justification for the disconnect between the classroom and the faculty-edited law journal?
Although the current student-edited system has drawbacks, it also has some huge advantages:
- There are no faculty gatekeepers who have built their careers around established theories and methodologies;
- It demands that the insights of empiricism and social science be written in a way that is intelligible and educates the reader (yes, footnotes can educate!), which is appropriate since many lawyers eventually become regulators and policymakers;
- Seriously flawed studies will be ignored by the marketplace of ideas, which also happens in the peer-reviewed world (see, e.g, here);
- Unlike many social science journals, law reviews permit (rather, expect) an author to explore the normative implications of their empirical work--this is a source of envy for many economists, sociologists, and political scientists.
That said, there is ample room for outlets like the JELS, which has become an important vehicle for setting standards for (intelligible) empirical legal work, including the advancement of methods.
But regardless of publication outlet, we still need to answer the question, "what is the purpose of our scholarship (beyond our own professional advancement)"? If law students cannot evaluate the merits of our articles that bear on the law, perhaps the problem is primarily one of curriculum (and the institutional incentives that perpetuate an antiquated model) rather than publication outlet.