Lawprofs arerushingto thedefenseof lawreviews after Adam Liptak's article in the New York Times. I won't rehash the various positions here. I'm pretty sure that a fair bit of this reaction is motivated by a mix of turf-protection and self-(re)validation: it's hard to hear that the esteemed, highly-selective publications in which you made your professional career are terrible.
But they are.*
Liptak gets some of the reasons for their terribleness right, but misses a few, and includes some extraneous things as well. For example, the fact that law reviews are not generally cited by courts or read by practitioners is -- in my opinion -- immaterial. But here are five reasons why they are, in fact, terrible.
1. Carpet-bomb submissions. If you're unaware of how this works: ExpressO. One submits one's paper to literally hundreds of journals at the same time. In contrast, scientific fields are single-submission, but that's not all. Philosophy journals do single submissions. History journals do it. PMLA does it. Even the fiction-publishing industry doesn't condone this behavior to the same extent, in part because it has some seriously negative consequences. More on that below.
2. Publication "review." So, thanks to ExpressO and its ilk, every half-credible law journal receives hundreds, and sometimes thousands, of submissions each submission season. (The existence of "submission seasons," as opposed to rolling submissions, is also terrible, but not sufficiently so to be worth its own bullet point.) At most reasonably prestigious schools, publication review goes something like this:
A. "Is this person a current or former federal judge, a current or former Attorney or Solicitor General, at (a top-20-ish) law school, at (our law school), or otherwise someone I -- a third-year law student -- have heard of? Yes? Go to C. No? Go to B."
B. "Have they indicated that they are expediting (see below) because of an acceptance at a lower-ranked journal? Yes? Go to C. No? Reject."
C. "Is the work interesting and (in my opinion) compelling? Yes? Publish if there's space. No? Reject."
The result gets published, unless it gets expedited up to a higher-ranked journal (again, see below).
Note how late actual quality -- even in the judgment of the 3Ls in charge -- appears in the process. In a credible system, quality would play a larger role than the author's name/title/affiliation, or the people cited in the first footnote. And of course, all this misses the fact that "quality" is itself determined not only by the editors of the journal -- something that occurs only at the margin in most disciplines -- but by third-year law students.
3. Expediting. For the uninitiated: Once one's paper is accepted at a law journal, the standard practice is to "expedite" review by notifying all journals in which you'd prefer your paper to be published over the one that has accepted it (generally but not always, those that are more highly ranked) to get them to make a fast decision on publication. If the higher-ranked journal decides to accept the paper, the process repeats at subsequently higher-ranked journals, until no one higher in the "food chain" agrees to publish the paper.
This is, in many respects, a form of tournament, and one of these days I or someone with better game theory skills than I will get around to analyzing this process from a theoretical perspective. In the meantime, note two things: First, law review editors use the information in the expedite process as an informational shortcut; among other things, that fact gives authors who are good at expediting their work an advantage that is -- arguably -- independent of the quality of the work in question.
Second, the combination of multiple submissions and the expedite process means that the overall publication process is wildly inefficient, with vastly larger numbers of people redundantly (albeit cursorally) reviewing the quality of scholarly work each period. By itself, inefficiency may or may not be something to worry about; and here, it might even be a good thing if student editors get valuable experience from the review process. But another down-side is that the process prevents a move to anything else, because -- particularly with multiple submissions -- peer review would be impossible. (If you don't understand why, imagine being one of two experts on 3rd Amendment law when the "other" expert submits a manuscript to 150 peer-reviewed law reviews simultaneously; within hours or days, you'd get 150 requests to review the same manuscript. Even I don't do 150 manuscript reviews a year.)
In the comments to his Concurring Opinions post, Dan Solove is nice enough to admit that he is -- and suggest that law professors as a class are -- insufficiently interested in the quality of the work in their discipline to invest their time into pre-publication peer review, as scholars in literally every other academic discipline do as a matter of professional responsibility. Assuming he's right -- and, he's the John Marshall Harlan Research Professor at GWU, so why wouldn't he be? -- I would suggest that either (i) law professors are, as a group, insufficiently imbued with a sense of professional obligation, or (b) law professors are aware of the deluge of reviewing that would come with a wholesale move to peer review under multiple submissions, and recognize that it would constitute an impossible burden on the professoriate in that field. I'll leave it to the reader to decide which is more likely to be the case, but do go read Professor Solove's comments before making the call.
4. "Editing." You're 25. You're overworked. You're crippled by the Blue Book (see below). And yet, if the author disagrees with your interpretation about when a comma is or isn't Oxford, they don't get published in your journal. No thanks.
5. The Blue Book. It's a terrible style, seemingly designed for a long-gone era. Something as simple as knowing what citation a particular passage refers to typically sets off a scroll-fest back to at least one previous footnote, thanks to the term every reader dreads: Ibid. As a literary decision, it's fine, but law reviews aren't literature; parentheticals or cites to numbered references would be far superior.
Finally: One sad consequence of all this terribleness is that law professors and law schools are not taken as seriously by other members of the university community as they might be. To take but one example, I have observed open, unbelieving derision from psychologists, engineers, chemists, business profs, and the like when I explain that yes, the members of the law school think that five or six non-peer-reviewed, student-edited papers constitutes a tenureable record at a major research university. (Throw in the fact that lawprofs have three years of post-undergraduate education, have typically generated zero grant dollars or patents, and taught precious few courses, and you can see why law schools are often the poor relations of the university community).
When I was a new faculty member doing work on law and courts, a senior member of my (political science) department who also did work on law and courts told me "If you publish an article in a law review -- even a very good one -- not only will it not count toward tenure, but we'll take it as a sign of your stupidity." As law reviews are currently constituted, that strikes me as good position to take.
* And before you go looking: Yes, I have published two or three pieces in law reviews. In every instance, I'd already been tenured and promoted (and so was close to indifferent about the matter), and my coauthors all had compelling professional reasons for wanting their work to appear in a law journal.
Those seeking to become law professors (particularly those heading to the AALS Recruitment Conference this weekend) will benefit from a recent paper by Tracey George (Vanderbilt) and Albert Yoon (Toronto). In The Labor Market for New Law Professors, George and Yoon assess the market from an empirical perspective and carefully consider an array of variables. While the paper assesses data from a single academic year (2007-08)--and important market changes in law faculty hiring may be underway this year--as well as survey data, it is easily the most comprehensive and current data-driven assessment of law faculty hiring. The abstract follows.
"Law school professors control the production of lawyers and influence
the evolution of law. Understanding who is hired as a tenure-track law
professor is of clear importance to debates about the state of legal education
in the United States. But while opinions abound on the law school hiring
process, little is empirically known about what explains success in the market
for law professors. Using a unique and extensive data set of survey responses
from candidates in the 2007-2008 legal academic labor market, we examine the
factors that influence which candidates are interviewed and ultimately hired by
law schools. We find that law schools appear open to non-traditional candidates
in the early phases of the hiring process but when it comes to the ultimate decision
— hiring — they focus on candidates who look like current law professors."
Debates about law school rankings and notions of "hierarchy" typically generate more ink than insight. A recent paper by Olufunmilayo Arewa (UC-Irvine), Andrew P. Morriss (Alabama), and William D. Henderson (Indiana), Enduring Hierarchies in American Legal Education, however, is one notable exception. The paper draws on a rich and diverse array of data sets, some of which span decades. (By sheer happenstance, the paper's circulation coincides with the distribution of US News ballots for its annual (2014) rankings.) Equally important, this paper contributes to a foundation for future empirical work on legal education and law schools. The abstract follows.
much attention has been paid to U.S. News & World Report’s rankings of U.S.
law schools, the hierarchy it describes is a long-standing one rather than a
recent innovation. In this Article, we show the presence of a consistent
hierarchy of U.S. law schools from the 1930s to the present, provide a categorization
of law schools for use in research on trends in legal education, and examine
the impact of U.S. News’s introduction of a national, ordinal ranking on this
established hierarchy. The Article examines the impact of such hierarchies for
a range of decision-making in law school contexts, including the role of
hierarchies in promotion, tenure, publication, and admissions, for employers in
hiring, and for prospective law students in choosing a law school. This Article
concludes with suggestions for ways the legal academy can move beyond existing
hierarchies and at the same time address issues of pressing concern in the
legal education sector. Finally, the Article provides a categorization of law
schools across time that can serve as a basis for future empirical work on
trends in legal education and scholarship."
In a very brief (7 pp.) technical--though informative--paper circulating on SSRN, Empirical Studies of Copyright Litigation: Nature of Suit Coding, Matthew Sag (Loyola-Chicago) assesses variable coding reliability in a commonly-used database for legal scholars (PACER). Specifically, the paper focuses on "Nature of Suit" variable in the PACER records for empirical studies of
copyright litigation. While Sag finds that the variable does not, in fact, capture all
copyright cases, it nonetheless remains sufficient "for most purposes." Sag notes that the variable is especially suspect for copyright cases that involved pro se
litigants and where copyright was not the primary litigated issue. Sag estimates that the
"820 code" captures "80 to 85% of true copyright cases leading to written opinions."