New York Times Ethicist (Kwame Anthony Appiah (Professor of Philosophy and Law, NYU)):
Academic publishing in law may be unique in that nearly all scholarly journals are edited by second- and third-year law students, rather than professors or lawyers. Decisions about which articles merit publication are made by students who may be 23 years old and whose only relevant legal experience may consist of having studied law for 20 months or so. Nevertheless, these decisions can affect the way the article and its author are viewed. For example, many law schools brag about their faculty’s prestigious article placements, and such placements can also affect hiring, tenure and salary decisions at law schools.
In recent years, a practice has developed in which authors send their manuscripts to friends on other law faculties and ask them to recommend their paper for publication to the editors of their school’s law journal. Law students understandably feel pressure to defer to the professors who give them grades and who are far more experienced.
I don’t know how common the practice is, though I suspect that many authors who submit to law reviews are unaware of it. On the positive side, the practice means that a professor vets the article. And it is no different from the common practice of using your connections to get ahead.
On the negative side, it can undermine the goal of having prestigious journals publish the best articles in multiple ways. First, it confers a significant advantage on those who both know of the practice and have friends at the right law schools, consequently making it harder for those who don’t have that knowledge to secure top placements. Second, professors who receive such requests probably feel eager to accommodate friends who may someday be able to do them a favor in turn, and this incentivizes them to suggest publication of articles wholly apart from the merits of the pieces. Because the professors may recommend articles without reading other submissions, they will not usually know how the recommended article compares with the other articles submitted to the journal. The practice also contrasts with the blind peer evaluations common in other disciplines, in which referees don’t know whose paper they are evaluating.
In short, to the extent law-review placements are thought to be a statement about the quality of the article — a view that, despite what I say above, I find hard to shake in myself — a result of this practice is that placements may send a misleading signal about the article. That has not stopped me from engaging in it once or twice. Did I behave unethically? Is it relevant that students are involved? Name Withheld
In recent years, law reviews have attracted a fair amount of criticism, in part owing to the peculiarities you touch on. There are more law reviews than ever but fewer subscribers. Even the ones with the largest circulations, like The Harvard Law Review, have a fraction of the subscribers they had a few decades ago. (Electronic databases play a role here.) Their editors are typically inexpert and, given the apprentice system, are subject to the sort of influences you worry about.
As you’ve made clear, the practice of faculty recommendation puts pressures on law-review editors that may involve the abuse of power, temptations to toady and a host of other unfortunate effects. A study of nearly 200 nonspecialized law reviews by the University of Toronto law professor Albert H. Yoon found favoritism toward faculty from their home institutions [Editorial Bias in Legal Academia (more here)]. But traditions can be hard to undo, and the use of student editors has some advantages. Most notable, it can provide them with valuable experience in sorting through complex legal arguments.
Still, some meliorative steps can be taken. Law reviews could adopt an explicit policy that they will not consider articles sent to them via the faculty of their own institution. Indeed, they could simply circulate a letter to their own faculty asking them not to do this. That would permit them to decline the requests of their no doubt highly talented friends to put their thumbs on the scales of journal justice.
(Hat Tip: Paul Parker.)