Comments on: Don’t Blame the Law Students: A Reply to Posner

By: Crooked Timber » » Law reviews and meritocracy

Crooked Timber » » Law reviews and meritocracy — Mon, 08 Aug 2005 19:35:18 +0000

[...] Now I know that there are a lot of complaints among legal academics about the dominant role of student-edited law reviews. But (if this is at all representative), I hadn’t realized quite how bad the problem was. It’s not (as Micah has argued previously ) the fault of the students editing these reviews – when you have so many article submissions that you’re literally unable to read them all (thanks to the practice of multiple submissions), you’re inevitably going to have some more-or-less unfair metric for deciding which ones to read, and which ones not to. The problem is a structural one. But it does suggest that it’s going to be a lot more difficult for a smart legal academic in a second or third tier school to improve her position by publishing material in good journals, than it would be if she were, say, a political scientist or a sociologist. If her school’s position in the rankings counts against her chances of getting published, she may find herself in a Catch-22 situation; the only way to get published in good journals is to improve her personal name-recognition (since her school won’t help), but the only way to improve her personal name-recognition is to get published. Blind peer review, which is the norm across most of academia, does serve as at least a modest corrective to mutually reinforcing hierarchies in journals’ publication records and department rankings. It’s possible, albeit difficult, to publish your way up. As an aside, I wonder whether the importance of name-recognition to legal academics helps explain the large numbers of them who have started blogging – blogging is a cheap and easy way to make your name familiar to the editors of law reviews. posted on Monday, August 8th, 2005 at 2:34 pm Post a comment [...]

By: Wiz Zee

Wiz Zee — Wed, 27 Oct 2004 19:53:45 +0000

I believe the 7000 hours a year was describing the entire law review. That is an EXTREMELY conservative estimate.

By: Howard D

Howard D — Wed, 27 Oct 2004 19:19:26 +0000

7,000 hours of work per year by law review staffers (ie, over 19 hours every day) doesn’t sound like a “conservative” estimate.

By: Wiz Zee

Wiz Zee — Wed, 27 Oct 2004 18:39:53 +0000

Peer review ain’t all its cracked up to be, either. From my experience, plenty of CRAP is published in some of the most esteemed scientific publications in the world (think Science). Not to mention that “peers” often have axes to grind those in their field.

By: Anon

Anon — Tue, 26 Oct 2004 21:13:59 +0000

It’s the feedback effect that’s troubling to me as a faculty member at a decidedly non-name-brand law school, especially in combination with the phenomenon that reg describes. I’ve got an article circulating now that I feel very good about, and since I’ve heard from relatively few journals (something like twenty percent of the journals I sent it to after 9 weeks) I have this nagging sense that it’s sitting on a lot of desks in the “we’ll think about it harder when we’re asked to expedite” pile (including perhaps at UVa), and I don’t know what to do about it except try to make it prettier and re-submit in March. But let me ask this of folks: Would it be unseemly to follow up with some of the journals to say, Hey, if you haven’t already decided to reject this without letting me know, this is really pretty good and you ought to take a close look? (And perhaps to offer a few reasons why, such as “Professor X said so”?) It certainly wouldn’t have put me off back when I was involved in the process, but I’ve long since learned that I’ve got a pretty high tolerance for things that bother others.

By: Jackmormon

Jackmormon — Tue, 26 Oct 2004 17:58:52 +0000

Thanks for the careful responses. It sounds to me that the focus of any attempt to change law journals should be on the genre of acceptable articles (change submission standards regarding length, footnotes, style) and on faculty responsibilities to their departments and fields (what do law professors do when they’re not actually teaching—or blogging?).

By: v.

v. — Tue, 26 Oct 2004 15:41:41 +0000

I like the discussion, but I think it still doesn’t focus enough on the main cause of the problem with law reviews: the laziness of many (not all) law professors. I cannot help but giggle when I read Posner’s call for profs. to “take back” the law reviews. The last thing a typical law professor wants to do is get involved with the grubby work of running a law review (yes, I know some do at Chicago, but that’s rare). Actually administering a law review involves a great deal of drudgery, so why not let bright students do it? It is more fun, and probably easier, to spend time writing articles, then send them off and let law students fix them up, check them, correct the inevitable mistakes, and send them to the printers. There doesn’t seem to be any structural reason why law profs couldn’t take over running journals—lord knows historians, sociologists, scientists, etc. all run theirs—but my guess is law profs benefit too much from the current system for it to change. And while we’re on the topic, one more point (from a former Articles Editor at a top-15 review): many law review articles are, believe it or not, greatly improved by law student editing. I can think of two articles off the top of my head, both published in my law review during my year as editor, which came to the review as a great idea buried in a morass of simply bad writing. A lot of editing turned these into good, and eventually widely cited, articles. Of course, we never heard a word of thanks from either author after publication (in my year publishing 6 issues, we received a thank-you for our work from exactly one law prof, out of close to 20 published, which also tells you something about law profs). Sorry to go on, but serving as an Articles Editor gave me a jaundiced view of many (again, not all) law professors, and it just kills me to see professors turn around and complain about the shortcomings of students running law reviews.

By: Rob

Rob — Tue, 26 Oct 2004 13:48:23 +0000

Posner is clearly right that there is a problem, although I am not experienced enough of US law schools to say whether his prescription is the best one. You might wish to compare US journals to British law journals. If you look at, say, the LQR or the CLJ and compare them with HLR or YLJ you’ll see how much the study of law and what is published has diverged. In Britain journals are not edited by students. In some ways main stream British journals most closely resemble the HLR of 50 years ago. The issues dealt with are not, usually, of the highly theoretical kind but are more relevant to practice. The loss of the connection between academic law and law in practice has been exacerbated by the editorship of the law journals by students who prefer ‘sexy’ topics. Usually ‘Law and …’ rather than Law. In a legal system such as the US with 50 different jurisdictions the loss of careful doctrinal critique being provided by the academy is a disaster.

By: Thomas

Thomas — Tue, 26 Oct 2004 05:45:07 +0000

Jack, in response to your question: There are faculty-edited (which isn’t to say peer-reviewed or blind-reviewed) publications out there. Posner’s own University of Chicago Law is home to three of the most prominent, which isn’t surprising. ( The Journal of Law and Economics, Journal of Legal Studies, and Supreme Court Review are the three I’m thinking of.)

By: Jonathan Edelstein

Jonathan Edelstein — Tue, 26 Oct 2004 04:42:08 +0000

do lawyers read them regularly, cite them, follow their suggestions for fields or arguments of interest? Speaking only for myself, I don't read academic journals regularly, but I do search them on LEXIS whenever I'm researching an unfamiliar topic. how influential are these journals to the state and direction of the law? Depends on the article, journal and author. Given that, articles tend to be most influential where judicial precedent is thin or where there is dissatisfaction with the prevailing rule, and least influential where the precedent is firm. Do these articles carry any degree of authority? What is their authority compared to actual judicial decisions? Are these sorts of articles cited in decisions? Academic law review articles obviously don't have controlling weight, so they aren't equal in authority to court decisions from within the same jurisdiction. On the other hand, they are often strong persuasive authority, and are given some weight by the courts, particularly in areas where the state of the law is still developing. As authorities go, a well-argued law review article is probably as good as an out-of-state case, and courts do cite them frequently. (In the Second Circuit, at least, law review articles are one of the factors a court is supposed to consider when deciding an unsettled issue of state law.) What kinds of lawyers submit articles? do practicing lawyers submit as well as the academic-track lawyers? Well, I do. Seriously, most of the articles in academic law reviews are authored by faculty or students, but practitioners are also represented. Government lawyers and partners at white-shoe firms often write journal articles to polish up their gravitas, and judges are also frequent contributors. Practitioners' articles are more common in bar journals, which are published by professional associations rather than schools and have a more practical focus, but they do appear in academic journals. Are there good student reviews? Are there also peer- and blind-reviewed law journals? I'm not sure about blind review, but some American law schools publish peer-reviewed journals (e.g., the Journal of Criminal Justice). Outside the United States, peer review is much more common; for instance, my sole peer-reviewed article was published in Australia. There are good student-edited journals, and they're more common than many professors think. I've always had good experiences with student editorial boards, and found that they were very serious about producing good articles. People like Posner also underestimate what students can bring to the table; many have had professional careers before law school and can criticize from experience. I suspect that many of the problems (some) professors have with student-edited journals has more to do with their own refusal to listen to criticism than any flaws in the editorial system.

By: Jackmormon

Jackmormon — Tue, 26 Oct 2004 04:21:22 +0000

I’m coming at this from the point of view of an ABD in a humanities field, and so I have a lot of questions for you lawyers, all of which pretty much fall under the category of: What purpose do these articles serve for the profession? do lawyers read them regularly, cite them, follow their suggestions for fields or arguments of interest? how influential are these journals to the state and direction of the law? Do these articles carry any degree of authority? What is their authority compared to actual judicial decisions? Are these sorts of articles cited in decisions? What kinds of lawyers submit articles? do practicing lawyers submit as well as the academic-track lawyers? Are there good student reviews? Are there also peer- and blind-reviewed law journals? When I first started graduate school and my law school friends were talking about editing the school law review, I was really envious: they’re actually starting the work of their profession! they’re in the thick of it! But I also realized the downsides: my law school friends spent a lot of their time editing these journals (time of course that I was spending teaching needy undergraduates…well, and also serving as flunky under admittedly great minds). Law school still seems from a PhD’s perspective to be a mad crash course (what is it? three years?), necessarily resulting in some boilerplate work. Of course, my solution to the problem of substandard articles in both the legal and academic realms would be to abolish the twice-a-year (or whatever it is exactly) article-publication requirement for tenure.

By: Reg

Reg — Tue, 26 Oct 2004 03:54:19 +0000

“So there’s some potential that students will want to publish mediocre articles by major names from major schools, potentially leading to a scholar/celebrity feedback effect. Not sure how often it happens” All the time. When reviewing articles, what we first looked at was the author and where the author was previously published. Then we’d skim the thing, usually have a slightly better idea about the article, and try desperately to guess whether anybody might ever actually read or cite the article. Usually we’d just wait for authors to call and ask for an expedited review. If the person’s article was being published in a journal we thought was okay on a topic we needed to be well rounded, we’d bump it up and give it an offer. Really, there isn’t a good way to review articles when they come in hundreds and hundreds at a time.

By: greglas

greglas — Tue, 26 Oct 2004 03:28:55 +0000

Good critique. One major downside of the current process that you notice (and which Judge Posner fails to notice) is that the submissions are not blind-reviewed. So there’s some potential that students will want to publish mediocre articles by major names from major schools, potentially leading to a scholar/celebrity feedback effect. Not sure how often it happens, but the potential is clearly there. But overall, isn’t it kind of like shooting fish in a barrel to argue that student-run journals aren’t as good as professor-run journals might be? But there are counter-arguments. As quirky and unorthodox as it is to have students current learning the law selecting the “best” articles at the most competitive reviews, I personally kind of like it. One “benefit” of this weird student-run system: because of it, most professors accept that publication in a top review is a very hit-or-miss process, and that great stuff will often show up in Podunk L. Rev. and that fashionable nonsense will often show up in Harv. L Rev. So within a disciplinary area, there’s generally less significance attached to a placement in a particular journal, and more weight attached to the quality of the article. You can’t simply use the journal name as a proxy for quality—but why would you want to do that anyway? I strongly disagree with Posner, though, about the benefits of student editors. While I had one horrific experience years ago where an editor actually introduced a slew of errors and didn’t provide a redline, most students editors are careful, courteous, and genuinely engaged with the article. Almost always, the work comes back better from editing (or at least no worse), and I think part of the reason scholars like to have their works published in the top journals (other than tenure) is that those journals generally improve the work. A former VLR AE.

By: Thomas

Thomas — Tue, 26 Oct 2004 02:30:38 +0000

Posner’s right, and, further, the fact that Posner says what he says may push us a bit further down the road to his being the consensus view. If Posner’s view becomes the accepted one, then articles in the law-and-____ world would be published either in a peer-edited journal, and taken seriously, or published in student-run law reviews, and dismissed accordingly.

By: Kate Nepveu

Kate Nepveu — Tue, 26 Oct 2004 02:20:48 +0000

I also worked on journals when I was in law school, actually on two—the un-adjectived school one, and a less-well-known one that I was more personally committed to. It’s true that I sometimes felt unsure when deciding on submissions, even after doing my best to research the subject. However, as other people have said, once we’d accepted a piece, I worked very hard to strengthen it and make actual useful contributions—and to not piss off my authors! (Both of which took up enormous quantities of time.) The editor on my own student writing (anyone want 21K words on special verdicts in criminal jury trials?) did the same and succeeded. I liked editing. If the only thing I would get to do on a law journal is proofread and source cite, I’d have said “blow this for a lark, I’m going to do another clinic.” What’s more, I think a lot of the best and most motivated students would do the same—I noticed when I was supervising sourcecites that the many of the best sourceciters ran for editorial positions the next year. Or, shorter, “AOL.”