Peer-Reviewed versus Student Edited Journals

I thought I'd start off by going back to a previous post by Michael concerning trends in law scholarship publishing. 

Part of the barrier to empirical work in legal scholarship has been the tradition of student-edited journals.  This problem has been partially remedied by the advent of new peer-reviewed journals such as the Journal of Empirical Legal Studies, and an increasing focus in the law and economics journals and other peer-reviewed journals on empirical work.

Having published empirical pieces in both peer-reviewed and student-edited law journals, I have come to the conclusion that student-edited journals can play an important role in improving and promoting empirical legal scholarship.  I see three potential advantages to student-edited journals.

First, student-edited journals have an advantage in cite-checking.  In many (if not most) cases, this is less important in empirical scholarship than in, say, traditional doctrinal analysis.  However, empirical work can turn on the dating of legal change (for example, when did a state adopt an exception to at-will employment?) or the coding of various opinions (was a decision pro-government power or not?).  Peer-review rarely involves checks for coding, but focuses on assumptions and methodologies.  In contrast, students have both the manpower and skill set to check coding.  In the case of a study on case-outcomes, they could randomly sample some cases used in the study and code them themselves to see if the author was honest and careful.  Legal changes are often difficult to date (even in the case of a statute, the effective date is often different from the date of passage).  The prior law that is being supplanted must also be understood to determine if the legal change is a significant departure.  This involves traditional cite-checking and, given the coding issues of many studies, could substantially improve empirical work (or force greater disclosure).

Second, many schools now have empirically-trained scholars (or fellow travelers) on their faculty.  Students thus have access to informal peer-review of a sort and could also access scholars from other departments within their school.  Of course, students would want to pre-screen papers and send only two or so an issue out for review to avoid burdening faculty.  Some peer-reviewed journals offer small honoraria for review, and I see no reason why student edited journals could not do the same.  Such an informal process may have drawbacks by increasing the randomness of rejections, but the ability to simultaneously submit offsets this in part.

Finally, the main objection to the publication of empirical work in law reviews is that students miss important technical issues that would not go unnoticed in a peer-reviewed journal.  I think that, on balance, this is true and will not be fully remedied by informal review.  On the other hand, student journals have an offsetting adavantage: special symposium issues and frequent publication.  The Stanford Law Review has a couple famous issues on hot-button topics where scholars have squared off against each other.  The equivalent in peer-reviewed journals would be the publication of the referee reports.  And in contrast to the famously slow peer-review process (in addition to the publication of far fewer issues), law journals can publish response pieces fairly quickly.

These are just impressions, and I believe that many, if not most, empirical articles are not suited for student edited journals.  In the right case, however, the student-editing process presents significant advantages.

Comments

[Jeff Yates]

I think that both Chris and Valerie make good points on this matter. Political Science (Law & Courts) has certainly seen a trend of more law review publishing and a number of those scholars have moved over to law schools, likely for the reasons Chris mentions.

I agree with Valerie that the decision to publish in law reviews often turns on the intended audience. I would add that it might also turn on the question asked. Let's face it, political science journals aren't exactly open minded as to the types of articles that get published (although I'll admit that they are improving). Certain approaches and substantive concerns are more conducive to law review publication.

Also, I think that I would rather see a fellow faculty member publishing in a good law review than in some of the "Neverheardofit Journal of North Pole Economics and Philosophy" outlets that social scientists publish some of their work in and are, perhaps questionably, peer reviewed.

Academic rigor is important, but there are varying degrees of it in social science journals. Also, there's something to be said for rigor *and* visibility (e.g. good law reviews).

[Valerie Hans]

I publish in both peer-reviewed journals and law reviews. Whenever I think about where to submit a new piece, one of the most significant issues is the intended audience. If I want to communicate the results of a research project to the legal community -- both academics and practitioners -- the law review seems to have an edge in visibility. If I'm writing a piece for a law review, I also try to write in a way that's more accessible to those who are unfamiliar with social science methodology, so I'm sure it's easier to plow through than a social science article. On the other hand, if a research project might at some point be considered by a court as part of litigation, having the work subject to peer review can be critically important. Luckily, some projects are substantial enough to write distinct pieces for both of these venues, and if so I try to do that.

[F.E. Guerra-Pujol]

I found this entry to be helpful. It is dangerous to generalize, but I find that a lot of the papers that are published in student-edited law reviews are by and large 'psuedo-scientific' in nature (to borrow Karl Popper's famous phrase). That is, such papers try to appear rigorous and 'scientific' but, in reality, they are at bottom nothing more than normative statements of what the law in a given area should be dressed-up in sophisticated language, often without a shred of empirical evidence to back up the claims made.

[Christopher Zorn]

Hm.

I think Max is just a bit Pollyannaish here. I suspect most PhD-holding, tenured or tenure-track empirical folks would take umbrage at the idea of a bunch of 3Ls "see(ing) if the author was honest and careful." And the vast numbers of student-run law reviews, together with the relatively tiny number of legal-minded social scientists, makes any sort of peer-review hard to imagine. (Of course, if the answer is "peer-review only for those papers with empirical content," that raises all sorts of equity issues).

Also: I used to be of the mind that the answer to Jeff's (2) was "Nothing good" -- I was explicitly told not to even think about publishing law journals before tenure, and that if I did those papers would actually count against my case.

OTOH, it also appears to be the case that most law schools are skittish about hiring non-JD faculty unless they have some law review papers to their credit. So, if the bulk of empirical scholars ever want the prestige/big raise/other perks that come with a law school affiliation, we'll have to play the law-review game.

[Jeff Yates]

This is an intriguing question. But maybe it should be two questions:

1) What does publishing in law reviews vs. peer reviewed journals mean for law professors? and
2)What does it mean for those in social science departments?