Forum Post # 5: A Note on the Irony of Faculty Critiques of Student-Edited Law Reviews

Let me start by congratulating Nance and Steinberg for a study that is well done and has already sparked quite a bit of discussion and controversy.  I share some of the concerns voiced earlier about various survey biases and some of the methodological choices, but I think overall it is a remarkably strong first effort, and a great "first cut" look at a process that likely needs to be studied from several angles before it can be fully understood.  In particular, it is definitely worth thinking about the gap between what people (including law review editors) say they do and what they actually do.

Nevertheless, one of the interesting things about the study's findings is that many of the traditional law professor complaints about law review selection are born out explicitly in the survey responses.  The most obvious are the various responses that highlight where an author works or where an author has previously published, but I think the negative responses to ease of editing and the adequacy of the footnotes are also the sorts of criteria that make law review authors wince.

The generic criticisms I hear from law professors about student edited law reviews, however, often strike me as somewhat ironic.   Law schools are among the most hierarchical and status-obsessed educational institutions in America, so it would make sense that law review editors would consider an author's perceived prestige quite explicitly in making publication decisions. These same editors jumped through similarly narrow hoops to get into law school, to reach their GPAs, to get on to law review, and then to become article editors.   Thus, I always find it funny that the same law professors who help create and perpetuate the various levels of prestige competitions at law school complain when they are subjected to a similar treatment for placement of their articles. 

Bill makes a good list of the strengths of student edited law reviews, but I'll add two more, somewhat subterranean, ways that student-edited law reviews serve the interests of law faculty.  First, there are so many student-edited law reviews that it is not an exaggeration to say that virtually anything a law professor writes that is in English and makes some vague sense can and will be published.  This is an enormous comparative advantage for a law faculty member over other disciplines, since a law professor can remain "productive" regardless of whether their work is relevant or even particularly good. 

Second, having students edit most of the work means that law professors do not have to.  Being a reviewer for a peer-edited journal (let alone being an editor) takes a great deal of time, and is in many ways a relatively thankless pain.  The fact that student editors do the bulk of this work is a major benefit for law faculties.

Lastly, I think Bill is on the right track when he asks about the purpose of law faculty scholarship.  Similarly, it is worth asking about the purposes of having student-edited law reviews at all.  I assume the primary institutional purpose is educational: the students learn a lot by reading and editing faculty scholarship, as well as writing their own notes or comments.  Keeping this purpose in mind helps explain why student editors might behave as they do, and should give us pause before criticizing too harshly.  Given the educational mission of the law reviews and the challenges students face in selecting and editing faculty work I think they do a good job overall.

Comments

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[Jeff Yates]

Ben makes some excellent points here, in fact some that I had planned to make (yeah, that's the ticket, I was going to say that). I had discussed some of the relative advantages and disadvantages of peer review and law review publishing a while back when I guest blogged, but I'll try to add some new points here.

1) I think that there is room for both student edited and peer reviewed journals in law. In fact, there may also be room for hybrid journals in which students act as reviewers for work that they are better trained to handle (e.g. doctrinal, although some may have social science skills) and law faculty are called upon to act as peer reviewers as well. In fact, such legal journals could get profs from other disciplines to perform peer review (did I just say that?). But, the day to day running and editing of the journal falls to students (with supervision). This is one advantage that law schools have that social science journals and their editors do not enjoy - an ample supply of relatively cheap (or free) labor.
2. On the topic of faculty peer review, I think that it makes a lot of sense for law faculty to get more involved in this process. It can be mutually beneficial and faculty may feel better about their treatment at law journals if they know that at least one faculty member has taken a look at their work and had a say in the publication decision.
3. Of course, #2 comes at a price - law faculty will have to spend time engaging in peer review. While this is not the end of the world, it can be taxing. I have a couple of things to review as we speak. I would say that my average peer review total for a year is between 15-20 manuscripts or grant applications (not counting textbooks) and I would say that this is around the mean number for someone with my experience and in my sub-field. Someone who is more experienced usually gets much more and people in certain fields (e.g. methods) get tapped a lot for this service (e.g. 40-50).
3. Ben makes a good point about the number of law reviews - I'm all for having multiple outlets, because limited outlets sometimes muffles creative and innovative ideas, however, with 200+ law journals in existence, there may be a need for some type of quality control measure or ranking system.Perhaps the one in place now is not optimal, but come on...
4. One of the tremendous advantages of law journals is simultaneous review. This is especially helpful for untenured people. You can only imagine how ulcer rendering waiting for 4-6 months for reviews can be when you're on the ticking clock of tenure (and then it's unfairly rejected and you have to wait somewhere else for 4 months). This being said, simultaneous review and peer review do not play well together. I know that some journals (JELS, I believe) allow for some limited form of simultaneous review while using peer review, however the traditional method of submitting to 50+ journals at the same time would have to be modified.
5. A brief point about legal research - While I didn't spend a tremendous amount of time in legal practice, I did find law reviews to be a very valuable source of guidance in day to day lawyering and legal research. Perhaps it depends on your area of practice, but as a corporate counsel handling a multitude of different areas, I found that law review articles were very helpful in framing my understanding of a new field or getting up to speed on a complicated issue. Of course, most of these articles were doctrinal in nature, however empirical work can also help inform legal (and business) decision making.