Law reviews and meritocracy

This is a pretty extreme example of problems in the current journal system. Others are delay in publication and the fact that only the wealthiest universities can afford many journals.

I think the solution is public posting of papers. The federal government and other sources can root out the sums sent to current journals. They can use their editorial superiority to select papers considered most important and mantain existing structures even as a thousand new journals bloom and new methods of organization and selection burst forth. The fact that a number of key journals may referance the same paper is a strength, not a weakness.

Information by and large paid for by the people and theorectically open to all according to the idealism of science subjected to all kinds of weird controls by structures resembling mercantile guilds .

Put it out there and then orgaize it. If we don’t do this then some of the rising science centers will and the result will be their research having a much better chance of becoming central because it’s “turnaround time” is reduced by 6 months to a year (even more if we add a system which encourages work in progress) is more widely availible and better organized (both electronically and in terms of the vast “critical communities” which can have at it.)

That is a deeply weird glimpse of how it works in law journals.

But it is *nothing* like that in philosophy or classics, the two areas I know something about directly.

I referee quite a number of papers every year, and *all* of them are rendered completely anonymous: not only do I not know whether the author is at a “second tier” school or not, I don’t know their name, their employment status, whether they are a full professor or a grad student or a dog. All I have is the contents of the paper. I have no choice but to judge it on its merits.

Ditto for the APA conferences. I have been reading submitted papers to appear at an APA conference, and these too are *completely* scrubbed of any identifiers.

So, I mean, this is evidence of a deep corruption in the law journals. But it is no part of “a case against the whole post-bachelor’s educational system above all in the humanities” (to quote bertrand above) because as far as I know, the humanities just don’t work this way. At least, in my corner of them they sure don’t.

(I will say that every now and then I get a paper where the journal didn’t do a complete scrub–e.g., they tore off the cover page, but forgot that the institutional affiliation was on the back page. Then I include a rant with my refereeing, telling the journal editors that they have to do a better job. Doesn’t happen much.)

1. The journal editors, who assign the paper to referees, see the author’s institutional affiliation. Since experienced editors do try to influence the decision by the choosing the “right” referees, blind refereeing in itself can’t eliminate institutional prejudice.

2. The American Economic Review study showed that professors at top institutions had even greater advantages under blind refereeing than when the institutional affiliations of authors were revealed to referees. This suggests that:

A. Institutional affiliation of an author is a pretty good proxy for the quality of an article.
(Highly ranked institutions may have their deadwood, but qua deadwood they aren’t dubmitting many papers!)

B. “Corruption” in the refereeing process when the author is known to the referee may be a matter of helping friends and harming enemies, and not institutional prejudice.

3. In my cohort at Chicago it was clear from day one who was going to make it as an academic political scientist, but the single most successful of us came from outside the old boys network, as a mature student from a not particularly prestigious public University. His talent was nonetheless immediately recognized by students of professors alike.

I’m currently in the process of reviewing a small number of papers for a graduate philosophy conference and, as with journal submissions, I have no idea who they are from or which philosophy program the participants are affiliated with. All I have to go on are a set of uniformly formatted Word documents identified by a number.

Unlike panjack I don’t think I could even take a guess at the institution to which the authors are attached.

The law reviews may face the problem of more submissions than they can handle but it does seem like some other metric can be used, one that offers less potential for accusations of corruption, than the affiliated school of the author.

Sorry about the double post. The first returned a series of .php errors — I assumed it hadn’t made it through.

There are a lot of (justified) criticisms of student-edited law reviews, though I believe more of the blame should be laid on law professors who appear happy with a system which lets them slough off responsbility for editing their own scholarly journals.
That said, when I was head articles editor of our law review (top-20), we paid close attention to articles from scholars at lower-tier schools. Our reasoning was that a submission from a prof at, say, UCLA was probably going to attract attention from higher-ranked law reviews, whereas an article from a prof at a low-ranked school could be a diamond in the rough that would be overlooked by higher-ranked journals but would wind up being widely cited once published. So I guess we were gaming the system, too, but acting on the assumption that editors at *other* law reviews were going to go with a scholar’s school prestige over the merits of the article.

In physics, when you referee a paper, you know everything. Who wrote it, their institution(s), and even what previous reviewers said.

Interestingly, the most successful people I knew in physics grad school were all from public universities.

Two things to understand this situation (and indeed, nearly everything else about law schools):

1. The only thing that differentiates a law school is the student body.

2. Law students (and lawyers) are natural game players.

Conclusion: law schools are abstract signifiers of the quality of the student – not the education. The initial admissions decisions are only mediated by final class rank (and making law review). Everyone understands this. Students, professors, and those who hire them react accordingly. The only real questions are of the “big fish little pond vs. little fish in big pond” variety.

There is also a very strong class bias here. Like the “Anna Karenina Principle” (“Happy families are all alike, unhappy families are each unhappy in their own way…”) the students at the top law schools generally had to have everything turn out right – for which an upper class background helps immensely. In turn, they don’t interact with very many students who have harder luck – and thus fail to realize the degree to which luck and birth have selected them for their positions. This leads them to over-estimate the importance of skill and ability in outcome, both their own and that of their peers. Because this group then goes on to become the next crop of professors and hiring partners, the biases get entrenched. Sad, but true.

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Detailed Discussion:

1. The only thing that differentiates a law school is the student body.

I mean really, law isn’t that tough to teach. There’s two parts of law school: the first year where all the incoming students learn to “think like a lawyer”, i.e., making logical arguments supported by facts and evidence. It’s called “critical thinking” and it’s depressing that so many bright and motivated 22-year-olds can be so bad at it. 1Ls also learn HOW to do legal reseach – how to find and cite the correct cases and how to present effectively their arguments in written form.

First years learn the “core subjects” of the law, in part because every lawyers needs to know about Constitutional Law and Property and Torts and Criminal Law, but also because those subjects are areas that students may already have some familiarity with and where the fine legal distinctions have been carefully hashed out over decades (or centuries!) and so can be taught to beginning students.

The second part, called “the rest of law school” is all elective: it involves taking courses in subjects that interest the student, or which may be necessary for the specific practice area the student wants: intellectual property, securities, business associations, federal regulatory and enivronmental law, etc. But these courses are pretty simple: “Black letter law” and the major or recent cases. Almost ALL of it comes out of the textbooks.

There’s little real effort to teach students HOW to practice law: drafting contracts, getting clients, networking, answering discovery, litigating, lobbying, or negotiating. So it’s not like the quality of the faculty at the school is really gonna affect your education.

What matters is your fellow students: better students mean that classroom and hallway discussions will be more informative and will do a better job of developing reasoning skills.

More importantly, since all law schools grade on similar curves, the only difference between top tier school “A” students and lower tier “A” students is the quality of the curve. It’s the “who did you beat” issue.

2. Law students (and lawyers) are natural game players.

Law students, professors, and recruiters, and the big firms that hire new grads all understand that law schools are just symbols – arbitrary signifiers of percevied quality. So the best students all want to go to the best schools. They all think they’re hot stuff – nobody goes to Harvard planning to get Cs.

And, for the most part, most students who can get in to the best schools can go because of financial aid and the promise of very large post-graduation salaries to pay off loans. That said, the law school admission process is not perfect: many outstanding students don’t go to the best schools – maybe they need to stay closer to home, have families, can’t get aid, didn’t do well as undergrads, or didn’t have the particular mix of grades, LSAT score, activities and leadership for the schools they applied to, etc.

Not really an exception: lower tier schools with high-reputation, very specialized programs within a specific sub-field, i.e., patent law, or complex financial instruments.

It’s not … the fault of the students editing these reviews – when you have so many article submissions that you’re literally unable to read them all … you’re inevitably going to have some more-or-less unfair metric for deciding which ones to read

Couldn’t they just toss a coin and throw away all the papers that get tails? This is arbitrary, but it isn’t “unfair”, as only a limited number of papers can be read and everyone gets the same chance of making it to this stage.

Law school is odd. It doesn’t do much as far as teaching you professional skills you’ll need like drafting contracts, negotiating, trial practice, etc. But it goes on a lot longer than it needs to if it’s just bar exam prep. You could teach the courses on the bar exam and legal research/writing in two years or less. The third year is a waste if time.

I also don’t really understand the point of law reviews. In doing legal research and writing I’ve found them consistently irrelevant. I guess they’re just ivory tower exercises?

Law school is odd. It doesn’t do much as far as teaching you professional skills you’ll need like drafting contracts, negotiating, trial practice, etc. But it goes on a lot longer than it needs to if it’s just bar exam prep. You could teach the courses on the bar exam and legal research/writing in two years or less. The third year is a waste if time.

This is known to the law schools. If students leave even a semester early, the law schools lose out on 17% of tuition income. That’s why they go to great lengths to structure their “requirements” to prevent as many students as possible from leaving early. E.g., requiring an arbitrary number of credits high enough to force students into a sixth semester. They might offer a very important or popular class only in the Spring semester, every other year, e.g., Environmental Law or Bankruptcy. Some important subjects are broken up into three or more courses (Intellectual property: Patents, Trademarks, and Copyrights, or the UCC subject courses), some of which may require completion of another, or which are not offered every year. Many firms want to know class rank, and of course, a class rank can’t be determined until the whole class graduates. You can’t be a senior editor of Law Journal if you leave a semester early.

Hiring firms like the three year system because it lets them audition prospective associates for the summer after the 2L year. For students, the third year is a chance to take courses relevant to their probable job after graduation, after they have some exposure to legal work over the 2L summer. It also is a chance to take smaller courses not frequented by the top 5% of students in an effort to pad out GPAs which might have been bloodied in the larger 1L mandatory courses.

I also don’t really understand the point of law reviews. In doing legal research and writing I’ve found them consistently irrelevant. I guess they’re just ivory tower exercises?

Path dependence. The student-run law reviews evolved that way, and it serves everybody’s interest at the top. They are published by students, lending prestige to the editors – what would be considered mindless proofreading drudgery is elevated to high-status “experience”! The student labor is free.

Faculty do not have to spend time reading galleys or peer reviewing the authors. Of course, as others mentioned, this extends turn-around and publication times, leading to the need for multiple simultneous submissions and serious quality control issues.

This also means that practicing attorneys who have acheived some recognition or expertise (not necessarily both) in their field can write articles and get them published in niche journals – and Law Review publications are always impressive on a non-academic’s resume.

In turn, the inexhaustible supply of potential articles (professors have few requirements and can always secure a student research assistant) and eager students (everyone wants to put “Law Review” on their resume) is feeding an ever-growing number of niche journals. Most law schools now have at least three journals, and some have ten or more. This then leads savvy hiring professionals to “rank” the various journals at a single school in an attempt to combat “journal inflation”.

Some, but by no means all, journals are purchased by law school libraries. Nobody except tenured faculty over 60 who can’t use Lexis actually bothers to read the paper editions of the journals. They are uploaded into Lexis-Nexis, making them available to researchers – who, as you find, end up wading through mountains of pedantic uncitable crap in the vain hope that maybe there’s something useful in there

Whether or not anyone actually reads the crap is irrelevant.

There is also a very strong class bias here. Like the “Anna Karenina Principle” (“Happy families are all alike, unhappy families are each unhappy in their own way…”) the students at the top law schools generally had to have everything turn out right – for which an upper class background helps immensely. In turn, they don’t interact with very many students who have harder luck – and thus fail to realize the degree to which luck and birth have selected them for their positions. This leads them to over-estimate the importance of skill and ability in outcome, both their own and that of their peers. Because this group then goes on to become the next crop of professors and hiring partners, the biases get entrenched. Sad, but true.

There’s something to that, but on the other hand, you take a middle class kid who’s overcome a tad bit of adversity and put him in an ivy league setting, and he becomes pretty insufferable. Successful people tend to think the system worked. You could take the class out of it.