Following up on my post from last week, I’d like to expand upon my earlier, fairly simple suggestion about reforming faculty/student norms vis-à-vis U.S. law reviews, in the process incorporating and responding to some of the numerous comments that that post attracted. To be clear, in making the following suggestions, I don’t have any answer to what is the ‘right’ number of law reviews in the United States, nor do I pretend that anything that I have to say here is going to influence any law school’s internal deliberations about whether or not they maintain their existing law review(s). In all likelihood, with declining enrollments at U.S. law schools, and the declining financial prospects of a number of U.S. law schools, some law reviews—both ‘primary’ and ‘secondary’—will close; there either won’t be the students to staff the journals, or the dollars to pay for their administration. Put another way, what people call ‘market forces’ will heavily influence the aggregate number of U.S. law reviews in years to come—not bloggers’ commentaries, or below-the-line comments to those commentaries.
With respect to ‘the market,’ however, one might say that the arena in which articles have been written—and then accepted, rejected, ignored, or misplaced—by U.S. law reviews has been a fairly lawless one. What I’d like to do here, then, is think out loud about how one might better regulate the ‘law review market,’ whether the robust one of years past or the diminished one of future years. The relatively lawless character of the U.S. law review market very much might work to the advantage of individual law professors, or even legal academia as a whole. However, as my earlier posts on the ‘2 v. 3 debate’ suggest, I cannot imagine a respectable legal academia that is not at least minimally responsive to the concerns and norms of academia more generally.
On that note, our system of non-blinded review is a pretty noteworthy academic travesty. I am familiar with the arguments about how ‘post-publication peer-review’ can work, but those arguments too often depend on a number of simplistic assumptions about the availability of perfect information, robust research resources, and the ostensibly good outcomes of crowd-sourcing intellectual work. Such arguments also tend to take a very insular view of the purposes of and audiences for legal scholarship, generally seeing such legal scholarship as largely a tool for either getting a law teaching job (initially or laterally) or for talking to other legal academics. In these arguments, very little regard is paid to how pre-publication peer-review can help the general public, policy makers, non-legal academics, and others not immersed in—but nonetheless affected by—legal academic work to discern what is worth paying attention to (and what is not) in U.S. law reviews.
But this is not to say that (student-edited) law reviews using non-blind review should be eliminated. Again, individual law schools and individual law reviews will indubitably choose to continue with the status quo, while others will not. As a result, my ‘best practices’ proposals here are more modest in orientation, and include the following four suggestions:
1) Every U.S. law school should have a written policy disallowing their own faculty from submitting articles for consideration to any law review edited by that school’s students, unless it is a symposium issue or there is some other ‘legitimate’ reason. Simultaneously, every student-edited U.S. law review should have a policy automatically refusing consideration to any article submitted by any faculty member of the law school to which that law review belongs, with caveats such as those just mentioned. (This is a repeat proposal from my last blog post on this subject.)
2) Every U.S. law review should, at the beginning of every article published by it (e.g. in the * footnote), explain that law review’s ‘methodology’ for soliciting, reviewing, and choosing articles for publication.
3) When listing publications on their academic CVs, authors should prominently indicate, for each U.S. law review publication, whether that publication was published in a student-edited or a peer-reviewed journal.
4) When evaluating junior law faculty candidates for promotion, publications in peer-reviewed journals should be granted a weight at least as weighty as publications in student-edited law reviews. Perhaps it should continue to be the case that publications in student-edited journals will count (as they presently do most everywhere) for promotion from assistant to associate professor but, for promotion from associate to full professor, there must be publications in peer-reviewed journals. Or perhaps there should be evidence of publications in both student-edited and peer-reviewed journals at each stage of promotion. I am less interested in the details of the particular mix here, but only suggest a mix to reaffirm the importance of (pre-publication) peer-review, while confirming my lack of interest in shutting down (the market for) student-edited law reviews.
I look forward to your comments and further suggestions! And, please, someone put together an AALS or L&S panel on this topic; unfortunately, I will be out of the country next semester and cannot do it!