Paul L. Caron

Monday, November 16, 2015

It's Time To Replace Student-Edited Law Reviews With Peer-Reviewed Journals

Times Higher EducationTimes Higher Education op-ed:  U.S. Law Reviews’ Dirty Game: Review by Student, by Ken Levy (LSU):

In Times Higher Education’s recent feature on the vagaries of peer review (“On the receiving end”, 6 August), one of the essayists describes being subjected to the scrutiny of one’s colleagues as “the worst form of review, except for all those other forms that have been tried”. Lest any reader doubt this claim, let me explain what awfulness results when an entire field forgoes this traditional form of gatekeeping.

Submissions for almost all American general law reviews and for more than half of the specialised ones are reviewed by law students, selected by more senior law students based on their first-year academic performance. Unfortunately, however intelligent and ambitious they are, students just don’t have the expertise to judge the quality of submissions. As a result, an article’s fate is determined by the application of several superficial criteria.

First is the author’s name and affiliation. ... Second, if an author’s obligatory CV indicates prior publications in journals at schools ranked lower in U. S. News, many students will deem her current efforts to be unworthy of consideration. Third, students feel obliged to accept submissions by their own professors. ... Fourth, students typically prefer some areas of law over others, based not so much on informed legal judgement as on the politics of the day and what they happen to perceive as simpler, more “colourful” topics.

The power afforded to law-review students – especially those at the top 20 schools in the U. S. News ranking – is quite excessive. And many law schools only reinforce their defective publication standards by providing significant financial incentives (sometimes tens of thousands of dollars) to academic faculty who publish in the top-ranked journals, while many professors decide both who to hire and which articles to read and cite entirely on the basis of where articles are published. ...

Suppose I receive an offer to publish from a law journal at a school ranked 95th in U. S. News. The fun has only just begun. I now try to “trade up” to a higher-ranked journal (although not too much higher – that would be perceived by the student reviewers as delusional conceit). I tell all the higher-ranked journals up to a certain number — say, 65 — that No 95 just made an offer to publish and ask them to expedite their review of my article. So if, by No 95’s decision deadline, a journal at a school ranked 75th makes me an offer to publish, I then tell No 95 that I am rejecting its offer and start the “trading up” process all over again, this time with journals ranked higher than No 75.

It is a silly, dirty, ugly game – somewhat like dating without the slightest bit of tact. Authors are incentivised to use lower-ranked law journals as leverage, while the students at higher-ranked schools are basically letting law students at lower-ranked schools screen articles for them. ...

You might well ask how such a distasteful, irrational system ever came to be. The answer is, quite frankly, that most law professors are too lazy to review articles themselves. ...

In the end, only professionals – legal academics, lawyers and judges – are genuinely qualified to review legal scholarship. So I propose that legal academia follow the philosophy model by reducing the number of law reviews and inviting these professionals to serve as referees for those that remain. The honour of being selected to serve, plus a sense of duty to the academic community, are sufficient incentives in philosophy; given that legal scholars and practitioners are generally paid much more than philosophers, these should be sufficient incentives for them too. Alternatively, every law professor, lawyer and judge in the US could be encouraged to contribute to a fund for paying reviewers.

I have heard many of my fellow law professors complain about law journals’ unfair, perverse standards. But if they really want to change the system, they are going to have to step up and offer to take control of it themselves. Until then, they are voluntarily submitting themselves to the absurd tyranny of referees who are far less knowledgeable than they are.

Legal Education | Permalink


I suggest a model proposal or a compromise position: Can we at least get rid of that bibliographic monstrosity known as "The Bluebook" (and replace it with a more simple and elegant MLA or APA style book)?

Posted by: Enrique Guerra-Pujol | Nov 20, 2015 8:00:53 AM

One inevitable subtext of this analysis is that much of the work of our "leading" legal scholars is crap chosen primarily because of their institutional affiliation by students who know very little about the intellectual substance of what they are choosing. It is also a condemnation of the faculty hiring/selection process if law school faculty are evaluating "scholarship" based on the journal in which something was published as opposed to the intellectual merit of the piece. This suggests a degree of intellectual dishonesty among law faculty that makes the idea of a peer reviewed journal system suspect because those same faculty members have been content for decades with an obviously flawed and at its base an anti-intellectual system that is somewhat of an embarrassment. Eh?

Posted by: David | Nov 17, 2015 9:56:14 AM

Depends on what you mean by "well esteemed." If you mean a top-50 law school (as ranked in US News), then you probably have not experienced the problem described in Prof. Levy's article - i.e., being systemically ignored and snubbed by law reviews, fellow academics, and hiring committees. *This* is why there's "a fuss."

Posted by: Anon | Nov 17, 2015 6:12:38 AM

Currently a professor at a well esteemed law school, leaving it vague on purpose. Peer review and student-edited journals both have their place in the scholastic ecology. Peer review journals are great for hammering down the details of nuance articles; student edited journals are great for advocacy and the discovery of new ideas. Peer review journals are particularly sore on allowing innovation in the legal genre. I have also found student edited journals to be fantastic reviewers, often with more curiosity and insight than peer reviews. In conclusion, the world needs both, why the fuss?

Posted by: Anon | Nov 16, 2015 11:07:14 PM

I'm currently a 3L on a law review editorial board. I've always been confused why this process was left up to the judgment of students who know the least about legal scholarship.

Posted by: AnotherAnon3L | Nov 16, 2015 4:44:39 PM

Mr. Levy's arguments have little basis in reality, and inasmuch that they do, the problems he cites wouldn't be resolved by his proposal. If he wants to argue that students don't have the requisite expertise to evaluate legal academic work, then he can do so without dragging all our good faith efforts through the mud.

Posted by: Anon3L | Nov 16, 2015 2:34:55 PM

As a former law review editor, looking back, I can say that we, as 2L's and 3L's, had absolutely no business selecting, editing, or otherwise touching serious scholarship. Period. It was a complete joke, and quite frankly, intellectually insulting to the authors (not to mention that selection these days is driven largely by the author's academic/professional pedigree, not the substantive merit of the piece itself, as Mr. Levy rightly points out).

Posted by: Anon | Nov 16, 2015 11:21:51 AM