Forum Post #4: What is Right About Student-Edited Law Journals?

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.   

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Alex,

I think an author's desire to protect his or her reputation, plus the ability to workshop a paper, provides sufficient quality control for student-edited journal. Note that virtually all the editing any many (perhaps most) peer-reviewed journals are author edits in response to referee edits. A workshop can have a similar effect. bh.

[Alex]

I agree with the post and the comments, but there is a difference between being qualified to intelligently read an article and being able to edit it.

Take, for example, an author's criticism of an empirical piece for poor data coding. An author could go on at length about another researcher's coding is imprecise, but, absent some plausible systematic bias in the coding, that doesn't undermine the author's conclusions. The idea that errors-in-the-variables biases the estimators of independent variables toward zero is not a particularly intuitive proposition (or at least isn't to me). A lay legal audience doesn't necessarily need to understand errors-in-the-variables -- or, at least, can't be reasonably expected to -- but an editorial board that doesn't get it might be willing to publish an article that goes on at length with a totally irrelevant point.

[Dylan Steinberg]

Legal scholarship is unusual because, in addition to serving an academic audience, it is also used by the practicing bar. (As legal scholarship moves away from doctrinal analysis to more interdisciplinary work, the usefulness to a practicing audience is diminished.) A potentially salutary effect of student article selection is that it encourages authors to tailor their articles to that audience, since the student editors are a reasonable stand-in for the (frequently generalist) practicing readers.

[Michael Heise]

Bill nicely identifies many of the arguments, both pro and con, re: student-edited v. faculty-edited, peer-reviewed law journals.

One small point complements Bill's. During my years co-editing JELS (we're now working on Vol.5) what has become very clear to me is that the best submissions we get, including almost all of the most technically sophisticated methodological papers, tend to be written in clear, accessible prose. To be sure, the correlation is not perfect. But it is strikingly robust. Obviously, what it suggests is that folks smart enough to write first-rate empirical legal scholarship are also smart (and confident) enough to write in plain, clear, precise, and accessible English. In all, something of a pleasant surprise.