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August 09, 2012


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Jeffrey Harrison

I did a judicial citation study confined to law and economics many years ago and a follow up that will be out soon. I think judicial citations are important in assessing whether we are writing for an audience other than ourselves. The problem is that articles are generally cited that support where the court is going anyway. Thus, perhaps the most important articles -- those suggesting a change as opposed to those (like many in law and economics) adding new support for old ideas -- are not cited. I am not sure how this cuts in terms of article selection but I'd say judicial citation is probably unrelated to quality or at best only moderately related.


I disagree with Jeffrey's comment. While courts will cite to articles supporting the decision - so what? It shows the article was relevant. Moreover, a dissenting opinion (if its an appeals court) can cite to a different article opining a different conclusion. The bottom line of the post is spot on. Too often one writes a great article contributing to the legal profession and it is not published in a top elite school because the author is not associated with a "top school." Yet that article is cited by courts. I realize student editors have to manage their time and of course - its human nature - will defer to the author from an elite institution and will pick his or her article because its a safer pick. Look, is the good looking babe going to go out with the guy in the Prius or the guy with the Z4 convertible? The latter might be a jerk but its the curbside appeal that at least initially - wins.

Jeffrey Harrison

I don't want to be misunderstood. I value judicial citations more that law review citations or (god forbid, SSRN downloads) because it means someone out there in the world of actual law -- a clerk, a lawyer, a judge -- has seen the article and found it useful in some way. I am just not sure that means it is an article of superior quality or that law review editors can be complimented. This may be a distinction between relevance and quality.

Dan Joyner

Thanks for this post, Al. I think its an important issue. I commented on a post on this topic by Brando below, so some of this will be redundant, but I wanted to say it here as well.

I publish in international law, which is one of the fields in which there are a significant number of peer reviewed journals to publish in. In my field, almost all of these are headquartered in the UK and Europe. I know in other fields there are more US based ones. So I have experience in publishing just about 50% of my work in peer reviews, and 50% in U.S. student edited journals.

I think we in U.S. legal academia should not be blind to how unique we are among academic disciplines in having student edited journals as even an option for publication, let alone the primary option. Another way to say this is that we should recognize how much of an outlier we are to mainstream academic practice in this area. No other discipline that I know of, in the U.S. or elsewhere, has this institution. And I think there are very good reasons why other disciplines have not embraced it. Reading the comment from the UPLR student editor that you quote above, I just couldnt disagree more with that student's analysis of the qualifications likely to produce a quality judgment about scholarship. And even more troublingly, this quote seems to me to be evidence that at least some student editors of law reviews arent even aware of how unqualified they are to be judges of scholarly quality of law review articles.

I think that we should as a discipline make the fundamental decision to essentially do away with student edited law reviews, and move to a system of primarily or exclusively peer reviewed journals, like the systems all other academic disciplines maintain.

Now, before everyone jumps on this idea, I know the standard objections. Peer review doesnt necessarily equate to quality review. I get this - believe me. I've had some ridiculous peer reviews of my work.

Another standard objection is that peer reviewed journals require too much time and effort of us faculty, and that inevitably a switch to peer reviews would mean fewer journals overall. I do understand these concerns, and they do raise some possible problems.

So, like all other important things in life, we're not dealing with a clear and easy choice. But would the benefits of a switch to peer reviews outweigh the costs? I personally think it probably would. It would put us on par with all other academic disciplines, in which this calculus has indeed resulted in primarily or exclusively peer reviewed journals.


Dan, your main point is that the U.S. style journal is unique as compared to the European peer reviewed system. Lets not follow Europe into the peer review system. Less innovative thinking and self-interested reviewers putting the screws on academic "enemies". I like the U.S. style - new ideas ideas are explored and there is great diversity among editors. Besides, most U.S. journals consult with faculty members. There are individuals I believe the U.S. journals have served the legal community well. Not everything European is "superior" to our system. Just take a look at their economy - is a stakeholder system of governance really "superior". Lets stick with our U.S. law journal process.


I'm curious regarding the citations, how many of the citations were in federal district court opinions versus the Supreme Court? I've found very few law articles of professional relevance in litigation practice. At best, some were topically relevant, but didn't offer any insight in practical application or were disguised case summaries. But, then again, it's law school, so perhaps yet another law review article on statutory interpretation or the First Amendment is encouraged over a law review article on something of more practical use.

Alfred Brophy


The article I linked to above dealt separately with citations by journals and citations by courts. I've forgotten now the number that were US Supreme Court as opposed to federal courts of appeals -- I think the preponderance was the latter.

Dan Joyner

Dave, that actually was not my main point. My main point is that the U.S. student law review institution is different from every other academic discipline's publishing institutions, and that includes academic disciplines in the U.S. as well as elsewhere in the world. So no, the provincialism which seeps through your comments is not an effective rebuttal to my argument.

Jeffrey Harrison

It looks like this discussion is over but one more thought. The current system is flawed but the politics of a peer review system for those writing in law also seems hazardous. Many if not most law review articles are briefs for one position or another as opposed to research designed to find an answer. Evaluation by objective peers seema unlikely. Student review would not be as much a problem if we stopped putting so much stock in where a piece is published. It seems like many say they hate the system but then they worship it.

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