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Law Reviews

Law reviews get little respect both within and outside the legal academy. For those unfamiliar with the system, legal academics publish their articles in law reviews, which are edited and run by law students. Law students select the articles, not professors. In contrast, journals in most other fields are peer reviewed and edited.

The conventional wisdom is that it is immensely silly and problematic to have students selecting and editing our articles. But while I have many gripes about the current system, there are actually many virtues to the law review approach that are not being stated. So I aim to be contrarian and (ironically) defend the status quo.

1. Article Selection. One argument is that a peer-edited system would be better in article selection. On the surface, it does seem quite odd and almost absurd for professors to have students do the article selection. Critics of the law review system say that students often don’t have sufficient knowledge about a field to appropriately assess the quality of articles.

But with student-selected articles, it is not as though peer assessment is vanquished. It just occurs after publication. To the extent that we use law review placement as a proxy for article quality, we’ve got ourselves to blame. I do think that there is a rough correlation in article quality and placement — the system isn’t perfect, and many mistakes are made, but I wonder whether perfection is possible or efficient. To the extent that we doubt law review placement as a proxy for quality, then we can discount it and assess articles on their own merits. In the end, I think that the objection is really about the fact that other professors (not ourselves and our friends, of course) will not appropriately assess the correlation between law review placement and article quality. In a sense, this is an argument that we don’t trust the judgment of our peers. But that shouldn’t mean we blame the law reviews — we should blame ourselves.

And suppose a bad article gets published. So what? Yes, a few trees were destroyed, but law reviews have limited print runs. It just means that the peer assessment of an article occurs after publication rather than before. We’re accustomed to a significant gatekeeping at the publication level, but perhaps this is due to the fact that throughout most of history, publishing was very costly, and so scarce publication resources had to be appropriately allocated. It made sense to have the vetting be prior to publication. But today, getting published is easy. We can still carry on the tradition of vetting prior to publication, but times are changing, and having something in print no longer has the same level of gravitas and authority it had before. This changes the meaning of what it means to be “published,” but it doesn’t necessarily mean that fewer quality papers will be produced or that it will become harder to identify quality papers. We’ll find other ways beyond the publishing gatekeeping function to separate good from bad scholarship.

2. Article Content. Another argument is that students don’t know much about the field, requiring us to add in lots of background information. As Manfred Gabriel writes at Law & Society weblog:

Student-edited scholarly journals are an anomality in academia. Student editors are bright kids, certainly; but kids. They’ve been at it for two or three years and are put in the position of selecting pieces supposed to advance jurisprudence, scholarship, and justice. The effect is that the average law-review article has to spend about 30 pages explaning the subject matter to the student editor, and why it matters, before ever getting to a new idea or synthesis. This affliction of law-review articles becomes painfully obvious when you compare them to articles in peer-reviewed journals, as you would find them in philosophy, for example. The approach there is that a scholarly article should be written for scholars and the reader can be expected to know the lay of the land.

But is this a bad thing? What’s so wrong with some background? I don’t believe that having background in an article will hurt readability and it will not necessarily ruin the scholarly value of an article. Why is it better that a reader must be expected to know the lay of the land when the land can be explained rather simply in 10 to 20 pages? Of course, not all articles should have to set forth background, but for important ones, why not provide a little background if it will increase readership dramatically?

In other words, I certainly agree that articles shouldn’t be required to provide background, but a little background doesn’t hurt sometimes. And I find that really good articles have a way of integrating background into the argument — putting a gloss on the background that is new and useful. In short, maybe having to write for folks who need to learn “why [an idea] matters” is a good thing. And it need not take 30 pages if well-done . . . and those pages need not be extraneous waste to scholars versed in the field either.

3. Submission Process and Editing. Law professors often complain about the process of submitting law review articles, but it is actually a process that is very efficient for us professors. We send our articles out to dozens of law reviews for simultaneous review.

In contrast, for peer reviewed journals, one has to send out an article to each journal one at a time, and wait for an eternity while the piece is reviewed by peer reviewers. If it is rejected, the process must start up all over again at the next journal down the list.

Publishing in a peer-edited journal can take a long time. Student-edited journals have the virtue of speed. That helps us. We shouldn’t be complaining. In fact, I doubt that the peer reviewed model will work well for legal scholarship, which often discusses current legal issues and controversies. Getting an article published quickly has a significant value.

But, some might object, the student editing must be vastly inferior to peer editing. This objection, however, assumes that no peers review and edit a law review article. Not true. Many professors have circulated their articles to numerous colleagues and have extensively workshopped their articles before several law school faculties.

If we professors had to do the article selection and editing, I wonder how good of a job we’d do. After all, we’re quite busy and may not want to carefully read each sentence to catch typos or small errors and omissions. We might also be biased in selecting pieces, as it is hard to turn down a good friend or colleague.

Student editing can be haphazard, but sometimes it can be quite good. Some student editors at top law reviews are interested in becoming professors and are just a few years away from entering the academy. They are thus eager to work hard and to impress, and they’re not too far away from being a peer. While I’ve certainly had my share of bad editing, I’ve also had my share of good editing. I’ve had student editors who have gone the extra mile on a piece, an extra mile most professors wouldn’t have the time or inclination to do.

Therefore, I believe that law reviews should get some more respect. [For those of you skeptical of an ulterior motive, I have no plans to send out an article this spring. Come to think of it, I should have been much more shrewd about the timing of this post . . . ]

In short, the law review system isn’t perfect, but it’s not that bad either. It even has its virtues.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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