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October 21, 2013

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MLS

There are lots of problems with law reviews but the main problem is not that they publish drivel, which they do but the blame for that lies with Law Professors who write the drivel and there is a lot of it. I think a bigger problem is that schools continue to place so much reliance in hiring promotion etc on where an article is published. There is simply no reason to think that student editors have any means of deciphering quality across subject matters (hence the problem with foreign law getting placed but sometimes the foreign law can be purely descriptive and not necessarily appropriate as scholarship). Law reviews do not do a terrible job of sorting but I have read lots of well-placed articles recently, typically by junior faculty, which really do not say much though they said it at great length and too often, despite the length, while displaying a serious ignorance with the existing literature. And that is the other real problem -- the articles are so damn long mostly because there is a need to explain everything to students who know nothing and there remains a need to propose a solution to some major problem in every article. That is just silly -- silly to write and silly to publish but I blame the writers more than the publishers. In the end professors, scholars, need to be responsible for what they write.

ML

I don't really see the great injustice here. Suppose that Prof. X's article gets placed in his school's journal instead of that of a less prestigious school.

His tenure committee (and hiring committees of other schools, should Prof. X choose to move) presumably expects the school's editors to favor their faculty, and will accordingly give his placement less weight than they would if Prof. X placed his article at a less prestigious school. So I don't see how Prof. X gets an unfair benefit.

To be fair, there is some cost to faculty at less prestigious schools: if the law reviews at tier 1 schools publish their own faculty extensively, they might accept fewer articles from faculty at non-tier 1 schools. But at the schools I have taught at, hiring/tenure committees seem to be able to account for this bias by being less picky about where faculty place their articles than they might otherwise be.

Moreover, at lower-tier schools that are struggling to fill their pages, the "faculty preference" might be a rational way to entice faculty to write for their home school's journal as an act of charity. What's wrong with that?

justme

According to Washington and Lee's law review submission page there are over 700 student edited law reviews in the US.

maybe the first order of business ought to be eliminating 650 of those reviews.

I'm not holding my breath.

Jeff Redding

ML: Thanks for your comments. My initial reactions are two-fold: 1) Publications should not exist solely for advancement purposes, and 2) People other than tenure/hiring committees, for whom law publications should hopefully be helpful, don't have perfect information about the law review placement process, and so probably can't make the 'discount' that you are suggesting. But I'm not sure we disagree entirely... I would just have the 'discount' equal the entire weight of the article in the situations you describe, i.e. I don't think tenure or hiring committees should consider *at all* a publication placed in a home journal, unless it is part of a symposium or some other reason justifies its placement.

JustMe: I am not for the total elimination of student-edited law reviews, which your proposal's #s suggest as a likely outcome. I think such law reviews serve a variety of helpful purposes, including teaching important writing and editing skills to students. But perhaps any faculty who want to put a student-edited law review publication on their CV should have to have it clearly marked as such, so that people outside of the discipline can understand that its quality is not properly certified.

Anon

ML: "To be fair, there is some cost to faculty at less prestigious schools: if the law reviews at tier 1 schools publish their own faculty extensively, they might accept fewer articles from faculty at non-tier 1 schools. But at the schools I have taught at, hiring/tenure committees seem to be able to account for this bias by being less picky about where faculty place their articles than they might otherwise be."

To those who can never place in high-ranked journals because, well, there aren't enough spots due to nepotism., the response is....sorry, we'll take care of it by discounting your work? That is a lame response to a real problem.

Rick Bales

I believe the root of most of the evil described here is the non-blind submission process. I would have no objection to internal publication if submissions were blind. But we know that article selection is anything BUT a meritocracy when journals demand author CVs and refuse even to consider student-written articles.

Jeff Redding

Rick: I think blind (and especially double-blind) submissions processes can help, but some of the most egregious (to my mind) examples of student-edited law reviews publishing home institution's profs articles happens at elite institutions, where students are savvy enough to know what a number of their professors are working on academically, and will be able to discern when they have gotten something from such a prof. Also, at any law school, elite or non-elite, it is totally possible for a faculty member to signal one's work to one's students (e.g. at symposia, public talks, in class, etc.), thus also defeating the purpose of double-blind. To be sure, I think double-blind review can certainly help, but it may not be possible for a number of reasons, and even with it, we need a fairly rigid rule here to prevent the continuing very serious problems with the selection processes on student-edited law journals.

anon

I think law professors should work together to formulate and implement best practices for law reviews. I can think of about 20 candidates off the top of my head. Restrictions on same-school publications would be a good start, but that doesn't strike me as one of the 5 or 10 most urgent issues.

Perhaps someone could organize a panel at either AALS or LSA on the topic of law review best practices. There is reason to be optimistic about the chance of making changes in these policies through collective action. However, given that the present dysfunction is largely due to the abdication of the scholarly process by law faculty, perhaps there is reason to be pessimistic about the chances of collective action taking place.

Jeff Redding

anon: I think your idea of starting some sort of collective action vis-a-vis panels at AALS and LSA is excellent. I hope multiple people run with this idea! I'm curious: What do you see as the 5-10 most urgent issues facing law reviews? Please expand!

Ben Barros

The biggest issue with law reviews isn't with the student editors. It is with law faculty. Note the disconnect between two paragraphs in Liptak's story. The first:

"Law reviews are not really meant to be read. They mostly exist as a way for law schools to evaluate law professors for promotion and tenure, based partly on what they have to say and partly on their success in placing articles in prestigious law reviews."

This paragraph is overblown, but it is accurate as far as it highlights the role of placement in tenure and promotion.

The second:

"Law professors were particularly critical of how students selected articles to publish, saying they lacked the knowledge to pick the best articles and relied instead on authors’ reputations and the prestige of the law schools where they teach."

This paragraph is spot on. Law professors know that the selection process is crap, but (at least at some schools) still consider placement relevant for promotion, tenure, etc. A lot of schools pay bounties to profs for top placements, with top being based on US News rankings that we all know are also crap. If we know that placement has no real meaning, we should stop treating it like it has meaning. Of course, part of the problem is that although most professors know that the placement game is corrupt, many deep down believe that their good placements are the results of the quality of their work.

Orin Kerr

From the post: "To my mind, it’s just #potkettleblahblahblah for an author of jurisprudence like Roberts’ to characterize U.S. law reviews as out of touch."

Why?

Anony

How about a rule that a law review will not publish their own faculty's scholarship? I would think that the editors might appreciate such a blanket prohibition, as it would prevent professors from trying to extert any influence over the selection process.

Bill Turnier

Martin Louis, a long deceased colleague, observed that judges are partially responsible for the fact that law reviews do not publish articles to their liking. He noted that were they to cite articles that were of use to them, the gratification of being cited would soon have an impact on the professoriate.

It is foolish to say that law reviews do not publish articles of use to technical understanding of the law. One only has to look at the footnotes in highly regarded treatises to see that such work is still produced. I personally think that clerks who wish to impress their judges by not owning up to the sources of much of their "original thinking" may me responsible in part for the failure of judges to cite to helpful scholarship. Of course, even judges who know of the source of so e to their thinking may be reluctant to one up to the source. As one federal judge once put it: "You have never heard of a judge being impeached fir plagiarism."

Jeff Redding

Ben: Thanks for your comments. I do agree that we, as faculty, need to step up and take responsibility for the moral mess that law reviews are seeped it, and not focus the blame on students. Yet, to my mind, some reforms do need to target both sides of 'the problem.' At certain institutions, some students certainly have an interest in soliciting and approving certain faculty members' articles, in the hopes of recommendations, etc. Indeed, unscrupulous law faculty who abuse their home institution's law review article selection process were law students themselves somewhere at some point in time... the lack of scruples did not just magically appear at the AALS hiring conference.

Former Law Review Editor

A worthy reform would be to eliminate all but the top 50 or so Journals. Most are worthless. The Internet has meant that anyone can circulate an idea now through a blog, etc. You can count on your fingers the number of articles published nationally that are worth reading and add anything new to the dialogue. Anything practical, such as a discussion of disputed court holdings and a synthesis of the findings is relegated to the American Law Reports or student "notes".

The entire legal education model is an expensive relic. I don't know how law faculty have the juice to keep it going, but I look forward to the day when the wheels fall off, the ABA starts representing lawyers rather than law faculty, and this profession rights the ship.

BoredJD

1) There could be strict rules against quid pro quo arrangements in any system, peer review or student run. The best check against collusion is going to be the reputation hit, i.e. what happens when other law professors realize a journal is obviously playing for the home team.

2) A compromise would be to continue to give the substantive editing and bluebooking to students, while having a committee of professors for each journal doing a blind review and comment on the merits of the scholarship. A hard-and-fast rule that no article will be considered unless it is ready to publish (some of the articles I reviewed had large sections omitted with promises to fill in later) would reduce the work on the student editors even more.

Of course this is going to reduce the number of reviews, but "we want more law reviews because we want more places to put our article ideas" isn't a great reason to continue a system which has very negative effects on students.

Steve Diamond

People overestimate the value of peer review, particularly when so much of what is written is conceptual. The advantage of the law school system is that it is essentially open source and that allows a lot of material to be available. Cream rises to the top. My favorite example: Morton Horwitz landmark article on Santa Clara Railway which appeared in the West Virginia Law Review.

Orin Kerr

Steve, by the time Horwitz published that article, he was already one of the most prominent professors in the country: He was a tenured professor at Harvard Law School with multiple publications in the Harvard Law Review, Yale Law Journal, and University of Chicago Law Review. I would guess that he published that article in the West Virginia Law Review because he decided he wanted to, not because that was the only journal that would give him an offer to publish it.

MacK

I think it would be useful to look at a few approaches to law review articles - neither of which would be greeted by law professors with enthusiasm - but would cause lawyers and judges to actually read them and perhaps cite them. That would be to use modern publishing technology and short lead times to think about targeting more law reviews at current issues. So first I would consider surveying practicing lawyers and sitting judges for "hot topics" and current problems in law - and then commissioning articles (or whole journal numbers) rather than simply taking what is submitted that looks legible, and legible. Frankly 2nd and 3rd year law students are really not up to the job of working out what are current legal issues - and unfortunately a lot of professors are not either. I can off the top of my head come up with subjects that whole journal issues could be devoted to that lots of lawyers and judges would read - and many practicing lawyers could do the same.

- to take an example, trolls, patent litigation, Rule 11, §285, and defining deviancy down ... there is a case before the Supremes now ... a good journal on this, surveying a range of the profession might get used.

- or how about child abduction/custody issues in international practice, addressing the issue, law and practice (treaties, conventions, etc.) Now that would get lawyers, diplomats and consular officials, judges and child safety officials looking at it internationally.

Another approach would be to look at big current issues in litigation - go to the opposing counsel when a case ends, usually by settlement, and ask them to write articles on key legal issues - god knows they will have done the research (I will admit to being a little worried when I write something that it will be thrown in my face at some later date (an issue where professors have, as non-practitioners, an advantage.)

At the heart of my personal complaints about law review articles is that they: (a) are rarely useful, but rather cater to professors' (often impractical) current interests; and (b) shy away from reaching solid conclusions of where the law is, which makes them frustrating (law review articles always prefer to have "open" endings, so it seems to make readers wait for the next episode, like a soap opera). In other words, law reviews need to strive to be more topical and more useful. That is how you get cited - and with all respect to Bill Turnier's comment, the lack of citations is not due to:

"clerks who wish to impress their judges by not owning up to the sources of much of their "original thinking" may me responsible in part for the failure of judges to cite to helpful scholarship."

but rather to the utter inability of such scholarship, in most cases (save for example Posner), to say anything citable or useful. And by the way, I recently cited some useful law reviews in international arbitration - both Dutch (discovery and adverse inference inter alia - they reached solid conclusions and contained declarative statements.) Actually, I find a lot of Netherlands law review articles and symposia proceedings are useful, which is rare for US law reviews (and no, I am not in the Netherlands.)

Zorba

Speaking as a former practitioner and current academic (in a non-legal field), the best scholarship in the law comes in the form of appellate opinions by the smarter Federal appellate court judges. Most law professors are self-trained academics less qualified than the rest of the academy, and it shows in law review articles. It's probably the only field where the difference between students and professors in terms of scholarly ability is so small.

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