As all of you know, the publishing venue for the legal academy, law reviews, has two key traits: first, it is incomparably vast (over 600 publications are attached to the roughly 220 law schools in America; in all, there are over 1100 legal publications); second, virtually all law reviews are run by students. No other discipline has as many publication outlets, nor does any discipline allow students such control over its professional/scholarly publications. A century ago, when law journal writing was primarily case analysis and doctrinal writing, a large student role made some sense (although the system had its critic even then, such as Justice Oliver Wendell Holmes, who dismissed law reviews as the “work of boys”). In the modern era, however, it makes no sense.
As I argue in Saving the Constitution from Lawyers, the vastness of the legal publishing realm means that virtually any sort of writing can eventually find a publication venue; student control means that the work submitted is not, and cannot be evaluated on its academic merits. Student editors, though hard-working, diligent, and intelligent, do not possess, and cannot be expected to possess, the knowledge to evaluate submitted work on its merits. Yes, they can find missing punctuation and erroneous citations, but these minor technical errors pale in the light of the fact that they are unqualified to judge whether a submission makes a legitimate argument, reflects proper knowledge of the field, does or does not duplicate existing writing, or even presents arguments and facts fairly and correctly.
Contrast this with the gold standard evaluative system of every other academic discipline, peer review. The reason for peer review is fairly obvious: it is the best system yet devised to judge the merit of academic writing. Is peer review perfect or fool-proof? Of course not. But it has two unassailable advantages not found in student-run law reviews: first, publication decisions are made by professionals with subject matter expertise, which means that the submitted work can be evaluated on its merits; and second, the review process is normally blind, meaning that the reviewers’ names are not known to the author, so that the reviewers (under professional editorial control) can offer full and frank evaluations. The primary check against possible abuse by vengeful or unfair reviewers is knowledgeable editors who can weigh the relative merits of multiple reviewer comments, or solicit additional reviews if needed.
Student editorship has its advantages, most notably that it is an excellent learning experience for top law students. But that hardly justifies the system: second year medical students would learn a great deal by being allowed to perform open heart surgery – but who in their right minds would agree to an improved medical school education by sacrificing hapless heart patients? Yes, it’s also true that law reviews publish many excellent articles. But this cannot be attributed to student editorship. Given the vast pool of submissions, law reviews would continue to publish many excellent articles if the publication decision were made by random drawing.
If law journal writing really didn’t matter, then student control wouldn’t matter, either. But law reviews do matter. In addition to serving the core goal of journals in every profession -- to advance scholarly knowledge -- they shape national legal debate and thinking, influence judges, legislatures, and executives, including the presidency, and public policy. In the final installment, I will discuss two examples of wayward constitutional theorizing cultivated in the pages of law reviews: the Unitary executive power theory of presidential commander-in-chief powers, and a new interpretation of the Second Amendment’s right to bear arms.