Lawprofs are rushing to the defense of law reviews 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.
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