Heald: The Law Review Scam—Humanely Ending Law School Exceptionalism

TaxProf Blog Op-Ed:  The Law Review Scam: Humanely Ending Law School Exceptionalism, by Paul Heald (Illinois; Google Scholar):

Most American law school professors will tell you that anonymous peer-review of article submissions is bunk.  They purport to have a better method for determining which articles land in the most respected journals—delegate acceptance decisions entirely to law students who operate their own law journals.  You heard correctly.  It’s law students, not Harvard law professors, who decide what gets published in Harvard Law Review (and in all of the other 654 student-edited law journals in the US).[1]  It’s time to consider change.

The Power of Inertia:  The law review system emerged in the late 19th century at a time when law schools were professional training grounds with little or no pretense of producing scholarly research on a par with other university departments.  Articles were devoted to nuts-and-bolts legal questions, often aimed at practitioners, and law students provided a real service to the profession by publishing legal updates on a regular basis (very frequently authored by the professors at the same institution as the student editors).

Beginning in the 1970s and 1980s, law schools  moved beyond the trade-school model and aimed to assimilate themselves into the traditional research mission of the university.  Articles became more scholarly, more theoretical, more interdisciplinary, and more empirical.  Unfortunately, the law review system did not evolve in parallel with the maturation of law school research ambitions.  Law students who probably did a competent job in 1920 of reading the cases and statutes discussed in a 5-page submission (the average article at top journals is now 63 pages)[2] cannot in 2022 be expected to judge the originality of a complex interdisciplinary article or check the regression analysis conducted in empirical research.

To complicate matters, student-run law reviews do not operate under anonymity and the rigor that produces.  The most important document submitted to the student journal is the submitter’s resume—containing information about the author’s prior works and often the author’s demographic characteristics—which serves as a proxy for article quality and desirability in the eyes of insufficiently knowledgeable or experienced student readers.

From the professorial standpoint, another huge advantage of the law review system is the number of journals associated with law schools that a student-operated system generates:  654 at last count.  That’s approximately one journal for about every 14 law professors.  As a legal academic, you never have to worry about getting published.  It’s just a question of where.

Despite the implausible nature of their hidebound system, law schools demand that student-selected scholarship be counted toward tenure equally with the peer-reviewed publications of their colleagues in history, sociology, psychology, economics and the like.

The High Academic Price:  Unfortunately, the delegation of labor to partially educated students comes with a significant academic price.

International Disharmony—Not surprisingly, the vast majority of law journals in English-speaking jurisdictions are peer-edited or refereed: (Australia [80 of 81]; UK [202 of 209]; and Canada [53 of 60].  Europeans tell me that they won’t publish in US law reviews because lack of peer review means the publication won’t count (or will count less) for tenure.  Clearly, American professors could change if they were willing to invest more time in serving as peer reviewers; they simply refuse to.

Repetition and Waste—In order to convince a student to accept your article, you must first provide enough background information so that the student reviewer understands your eventual argument.  With technical subjects, this can take up the first 50 pages of a submission.  Since law professors often write with an eye to seducing student editors as much as enlightening other professors, this wasteful and repetitious bloat is inevitable.  In the UK, Australia, and New Zealand, where peer review is the norm, the average length of law articles in their top journals is much shorter—around 35 pages.

Moral Hazard—With a click of an icon on Scholasticahq.com, a law professor can submit to 100+ journals at the same time.  Many professors have no intention of accepting an offer from journals ranked #75-#100, but a quick acceptance allows one to request “expedited review” at a higher-rated journal, a leveraging process which is often repeated multiple times before the final acceptance at the most highly ranked journal.  Untenured professors are coached on how to play a game that obviously wastes limited reviewing resources, chokes an already overwhelmed system, and creates genuine moral hazard.

Overclaiming—Not surprisingly, students are more likely to reward authors who make daring claims to originality (which are sometimes softened after acceptance).  The moral hazards here are significant given the benefit of submitting, “the first article to ever . . .”  Even the most well-known journals are routinely tricked into accepting superficially sparkling pieces that make no significant contribution to the literature.

Lack of Peer Input—Students are often quite good at technical editing and improving the flow and coherence of a submission.  Except in rare circumstances, they lack the knowledge to make substantive improvements to a piece.  When I publish in peer-reviewed journals, I get the advice of an expert reader on how to improve my piece.  Sure, “revise and resubmit” requires extra work, but legal academics benefit from dialogue with their peers in the editing process.

Stunted Professional Development—As the co-editor-in-chief of a peer-reviewed journal, reading submissions enables me easily to follow trends in my discipline.  Editing is an essential way to stay abreast of one’s field and converse around the world, unrealized by all but a handful of law professors.

Subject-Matter-Narrowing Effects—Every student on the managing board of the law review has taken core subjects like constitutional law, torts, administrative law, and civil procedure, making these safer subjects for scholarship.  Woe betide the teacher of comparative law, partnership tax, banking law, admiralty, or insurance, who must compete with more easily digested fare.  The existence of less prestigious specialty subject-matter journals helps established professors in technical fields, but untenured faculty are routinely advised not to publish outside of generalist journals.

Cloning the Elites—Because law students lack comprehensive knowledge of the topics they judge, they often rely on proxies for quality.  They read resumes and know whether the author is chaired Professor Jane Smith of Harvard (J.D., Yale Law School) or Assistant Professor Mary Doe of Nowhere State (J.D. Middling College of Law).  Given student ignorance of the vast bodies of literature underlying all good articles, it’s predictable for them to use prestige as a proxy for quality. Moreover, students at higher-ranked schools understand that promoting scholarship from elite schools will reinforce the elite nature of their degrees.  There’s a reason why 57% of all law professors come from Harvard, Yale, Stanford, Columbia, or UChicago, and why 95% of all professors at the top ten schools graduated from a top ten institution, most having served on the board of their law review.

A Simple But Ambitious Solution:  Over a five-year period, universities should phase in a prospective rule that only peer-reviewed articles count toward tenure or promotion.  Because an insufficient number of peer-reviewed law journals exist in the US, law professors will quickly be forced to take over the tough job of article selection from students.  The ridiculous number of law reviews would likely also decline for lack of professor editors.  For the reasons explained below, I advocate no other change to the student experience.  In addition, any change should be prospective and not punish law profs for having adhered to prior norms.

Confronting the Inevitable, Desperate Pushback:  Any attempt to reverse well-established professional norms will be immediately and vigorously attacked.  Here are the six arguments I hear all the time from my fellow law professors when I try to get them on the peer review train:

The law review experience is important for students!—The law review experience is an intrinsically valuable experience, as well as an important credentialing mechanism.  Therefore, when law professors take over the article selection process, they should continue to let students have a voice, but no vote.  The rest of the student experience can be maintained in its present form.

Peer review takes too long!—Sometimes, but it doesn’t have to.  The peer-reviewed journals I serve on get back to authors very quickly.  Once law professors take over article selection from their students, they can assure review is speedy.  Each discipline has its own norms, and the adoption of a new system would provide fertile opportunities for law professors to improve peer review.

Peer review is political!—Yeah?  You think law students aren’t political?

Open access is costly!—What does that have to do with peer review?  Most law reviews are currently open access, so just keep them that way.

Some journals do ask professors for input!—On rare occasions, but these informal requests hardly constitute true peer review.

Conclusion:  Law professors have learned how to play a complex and tricky game.  Indeed, most of them having been playing it since they were students.  Inertia is the most powerful force in the university, and law professors will object to serving on editorial boards, reading reams of their peers' work, and deciding whether a contribution is really original or not.  But like a lot of bitter medicine, it will be good for them and for the quality of research they produce.

[1] Law review data in this article comes primary from here and some data collected independently by my RA’s.

[2] Rob Wiley & Melanie Knapp, How to Increase Citations to Legal Scholarship, 18 Ohio St. Tech. L.J. 157 (2021).