Tuesday, March 13, 2018
Timothy T. Lau (Federal Judicial Center), A Law and Economics Critique of the Law Review System, 55 Duq. L. Rev. 369 (2017):
The law review system prizes placement of articles in highlyranked journals, and the optimum method to ensure the best placement, which many scholars have intuited, is a saturation submission strategy of submitting articles to as many journals as possible. However, there has neither been an explanation as to what incentivizes this submission strategy nor any analysis as to what happens to scholars who cannot afford this strategy. This article uses a law and economics approach to study the incentive structures of the law review system, and identifies two features of the system that encourage saturation submission and punishes the poorly-resourced: (a) journals have no availability to accept all articles of equal quality; and (b) there is an insufficient match between acceptance and journal ranking.
It demonstrates that the law review system behaves as a market, and is meritocratic only for those scholars who can afford to practice saturation submission. This article concludes with some thoughts about reforming the system.