Saturday, May 31, 2008

The Professional Literature System of the American Legal Academy – Why Has It Not Been Fixed Already?

We are now well into the aftermath of the law review submission season. The dust has settled on everyone's submissions and all, from the hopeful students to the Ivy League professors, know how well they did on the law review market. It is now time for both aspiring and established legal academics alike to complain and reflect critically about the student-run system of law reviews. Of course, there is nothing novel in these critiques; by now they are well-known and widely shared.

There is no need to reinvent the wheel in order to fix many of the problems with the current law review system. The academic profession long ago found a better, if far from perfect, approach to academic publications – the blind peer-review system. For example, in a past post Michael Dorf suggested a model along these lines.

Seeing that the system of professional publication of the American legal academy has been broken for some time now, the real puzzle in my eyes is not how to fix it but rather why it was not fixed a long time ago? Especially considering that the people who do most of the criticizing are also the same people with the power to change things (a rare occurrence indeed). I cannot but wonder whether some of the reasons why the vast majority of academic legal publications are not blindly peer-reviewed may be, despite appearances, that many legal academics actually have overriding interests in preserving the status quo. This is not to allude to any conspiracy or to entirely rule out prisoners' dilemmas, institutional constraints and the power of habit and tradition. But even discounting all these factors, I still wonder whether the interests of those who have the power to fix the current system actually favor the present state of affairs.

Posted by Ori Herstein


Michael C. Dorf said...

Ori was too polite to make this express, so I'll just spell out the vested interest that we established faculty have in the existing system:

1) It means students do work we would otherwise have to do; and 2) The current system gives well-known professors from high-prestige institutions an advantage.

As to number 1, I would note in explanation of our collective laziness that unlike academics in other disciplines, we have to grade our own exams rather than rely on grad students and, if we're conscientious, we have to change our courses each year, as the law changes more rapidly than, say, Roman history. To be clear, that's an explanation, not a defense.

As to number 2, some law journals use blind processes for at least part of the selection, but given the students' lack of expertise, it's actually sensible (if wildly over and underinclusive with respect to quality) for them to rely on credentials to make publication decisions. Shifting to a genuine blind peer review system would mean that we established faculty from elite schools would lose the unfair advantage we now enjoy in getting our articles selected for publication.

Ori Herstein said...

In that case, I will add another point:

Beyond pure intellectual virtue, interest and curiosity, academics must publish either for tenure or for the professional prestige and for the boons that come with it (better institutions, higher salary, invitations to conferences, chairs, lighter teaching load and the most important academic commodity of them all – honor).

Publishing in peer-reviewed publication is tough. One reason for this is that the standards for publication in terms of novelty and quality are higher when set by experts in the field as opposed to those set by students. Simply put, once one is reasonably established (i.e., is a professor in an American law school) one will most likely get some publication in every submission cycle. Therefore, people can put more emphasis on quantity than on novelty and quality.

David Crowley said...

I know I've said this in a Dorf on Law comment before, but I'll repeat: The problem is not so much with the selection system; it is with the heuristics hiring committees and the article-reading public use to evaluate the quality of writing. I may be wrong, but I bet most articles that are read are viewed or printed off of the internet, either from a journal's website, SSRN, or from Westlaw or Lexis. If that's right, then the benefit of publication in the top journals is limited, for getting published at a lower-ranked journal does not actually make the article less accessible. There should, in theory, be no downside to publishing in those journals so long as the readers approach the articles with an open mind---"de novo review," if you will.

True, student editing at top-ranked schools may be somewhat better than student editing at lower ranked schools, but this can easily be overcome by the writer doing a more thorough editing job herself, or by asking friends with editing skills to assist.

And, of course, for the same reason it is preferable to get an op-ed published in the New York Times instead of the Staten Island Advance, there are benefits to getting published in a journal like the Harvard Law Review, whose website, I imagine, receives a lot of visitors who are not looking for specific articles, but are instead simply browsing. But this will not lead to prestige if the article itself is uninteresting; I'm sure a significant number of articles in top-ranked journals die a quiet death (or live on only to be cited unthinkingly by student research assistants and law review editors looking to support professors' assertions). Further, I do not think a good article that is published in a lower ranked journal fails to get noticed, because writers typically circulate reprints to the respected professors in their field, and because an article only needs to get noticed and discussed once by a respected professor to capture others' attention. Thus, the prestige-conferring audience---the specialists in the field---will likely come across the article one way or another if it deserves attention.

The problem, then, is that hiring committees (and the rest of us) would much rather judge an author by his C.V. than by a review of his work, even though everyone knows the selection system is broken. Once we get over this irrationality, the selection system will become irrelevant, and people can be judged on the merits of their works.

Won Joon Choe said...
This comment has been removed by the author.
Won Joon Choe said...

Dear Prof. Dorf,

Isn't part of the reason why legal academics are so strapped for time also because they are really part-time academics (to put it more charitably), and they spend inordinate amount of time doing advocacy work, rather than serious intellectual work? Lest I am accused of being a churlish outsider, this was precisely the charge brought up by a distinguished legal scholar, Yale's Paul Kahn (I forgot which book--but I think it was either in the Reign of Law or the Cultural Study of Law.)

Regardless, I find the whole student-edited law reviews scheme a bona-fide scam, and it says volumes about the legal academia that it hasn't been fixed yet. At best, you leave clueless students the power of making and un-making careers; and at worst, you create a system where the professors can abuse the system by pressuring or bullying students to publish them (I am obviously not going to get into specifics, but I've heard first-hand stories of this nature from friends).

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