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