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October 27, 2013

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Hun

Peer review is important for disciplines that are expected to generate replicable results. Law review articles are often op-ed pieces that simply express the normative desires of the author. You do not need peer review for those unless the goal is to enforce group-think.

Modestinus.wordpress.com

Why is there such a controlling assumption here that "peer review" leads to "groupthink" and "normative bias"? This seems to be the sort of red herring one would want to throw out there if they had a vested interest in keeping the current (dysfunctional) system going. It is patently untrue that peer review is used only in those disciplines that favor "replicable results." Most reputable humanities journals, along with many journals that deal with the non-quantifiable aspects of the social sciences (e.g., political theory), are peer reviewed. Sometimes the review process does impose a bit of "group think," though one counterweight to that is the rise of journals with particular "standpoints" which, in a sense, acts as an early filter for submissions. Older journals, by and large, have a diverse enough review board to where good scholarship isn't going to get shot out of the gate, even if it is challenging. But as has already been noted on here, law students are no less likely than legal academics to let their ideological biases creep into the selection process. However, a panel of established legal academics, where no one person has veto power over an article's acceptance, might reach more fair and sensible results in terms of what does (or does not) get into its pages. Moreover, if a journal appears to be publishing only "one type" of article over time, it will quickly get labeled as a hub for a certain type of scholarship. This is what happened with the Journal of Legal Studies, though it seems to have diversified a bit in recent years.

As for law review articles being amateurish with extra-legal thought, of course they are. Most law professors have two degrees: Their undergraduate and their J.D. Few, if any, learn anything but law (or "law and [blank]") in law school, which means they have to fall back on their undergraduate education (shudder). Some of the better thinkers out there may be capable of digesting another discipline "on the job," but most aren't. Some may, after many years, come to develop a deeper acquaintance with their field which will allow them to publish very reputable works, but even there you are talking 5-10 years before a new legal academic is equipped to break out. By that point, though, the final verdict on their tenure will likely have already been decided; they can't wait for years and years before they start publishing. What a mess.

MacK

I was struck by many of the comments here, in particular MLS' statement that student review defences "confirms why so much of legal scholarship is simply dismissed outside of law."

US Law reviews are mostly dismissed as irrelevant by the broad legal community (except to the extent that law review is considered on student resumés.) None of the comments I have read here has addressed perhaps the most important issue, the issue inter alia that Justice Roberts alluded to, the non-relevance of the vast majority of the contents of most law reviews to legal practice. How will law schools create law reviews that lawyers and judges will bother to read?

Perhaps it is because this is the faculty lounge - but does it bother people that most lawyers think law reviews are not worth subscribing to, that few read them, that so few are ever cited in court decisions? If so ask the question, what would make law reviews more relevant to the law rather than just to academia, the way that say academics Physical Review Letters, the Lancet, etc. are devoured by practitioners?

Paul Gowder

The read by lawyers and judges thing is, in fact, a total red herring.
- How many economics articles are read by practicing businesspeople?
- How many empirical psychology studies are read by therapists?
- How many literature articles are read by writers?
- How many physics articles are read by engineers?

Basic research in a field and practice of that field are different things, and while some publications span the gap between those two, many do not.

Modestinus.wordpress.com

Paul,

It's not as much of a red herring as you think, and your examples seem a little bit stretched. The relationship of academic journals to the professional world is often mediated through professors, leading think tanks, professional seminars, and professional publications/journals which reach out to those "in the field." No one empirical psychology study is likely to be read by a wide number of psychologists, but that study -- if it is powerful enough -- might set in motion a larger research project across the field which eventually results in a new method for addressing a particular problem (e.g., child sexual abuse, PTSD in war veterans, etc.). It will take time, of course, but like most scholarship, it's all about moving the ball down the field by inches, not yards. As the academic studies become more widely accepted, the results will shape the way the particular field is taught and, as I noted, seminars and more professionally geared publications will direct professionals toward internalizing those results and applying them in their everyday practice.

With respect to law, it doesn't usually work that way, though arguably it once did. Consider the road to reforming antitrust law. Beginning as early as the 1950s (though the steam didn't pick up until the 1970s), economists -- and, eventually, economically trained law professors -- began publishing pieces critiquing American antitrust jurisprudence. Over time these articles began to shape the way antitrust was taught to a new generation of lawyers. Eventually, judges (perhaps influenced by their law clerks or, absent that, new seminars and direct reading) internalized the results of this new literature and what you have today is a vastly different antitrust regime than what existed 50 years ago. One might argue that the law reviews in this instance (like most instances) were less a hub for original research than they were for an application of original research that had gone on in economics journals and books for decades. In this sense, law reviews are more akin to professional journals in Clinical Psychology or Business than they are pure academic journals in fields like Empirical Psychology or Economics. Though this has started to change over time as more (albeit still a very small minority overall) legal academics have felt comfortable enough to engage in original empirical and theoretical research, the truth is that law journals are not entirely free of their "professional" orientation. The big problem now (or one of them) is that while these journals and their authors rarely exhibit anything more than professional competence -- that is, they are not academically trained to do rigorous research beyond Google Scholar -- they are trying to write purely academic pieces. The results are, at best, mixed and, at worst, laughable.

MacK

Paul:

How many economics articles are read by practicing business people?

Actually, quite a few read economics articles - I know that in the companies I worked in a lot did - we need to consider the future. And the Economist's circulation is not just to non-practicing economists. I would add that economists employed by banks and other businesses all the time.

How many empirical psychology studies are read by therapists? Well the psychiatrists and therapists I know either read the articles that are based on the empirical psychology studies.

How many literature articles are read by writers? - the writers of my personal acquaintance, including minor figures like Sheamus Heaney, Maeve Binchy, etc. seemed to read quite a lot of articles on literature (but not much published by the MLA to be sure)

How many physics articles are read by engineers? - A lot, especially electronic engineers and those in materials technology. And yes I have direct knowledge of this.

In short your four points were complete tosh ... in every profession, from science to engineer, medicine, writing - practitioners do read a significant number of journals - and indeed outside the US, many academic originated legal journals are widely read by the legal profession. The exception to this I would note is the output of the Modern Language Association, which seems to be read by no-one, not even its own members.

I also have to say that describing most law review articles as "basic research in a field" displays a level of vanity that is quite remarkable.

Again the question remains, how do US law reviews make themselves relevant to legal practice. Other journals are relevant to the practitioners in their fields and their content does get read - when did you last hear of a law review article being a front page news article when published - I have seen it for medical articles from the Lancet and the New England Journal of Medicine, science articles from major journals (including basic research results), economics articles - but not US law reviews (except when someone is nominated and before the Senate and an old article gets dug out.)

What I find remarkable about this thread is the utter lack of interest in making law reviews relevant, and the ludicrous explantations of why that it ok.

MacK

Cripes! I need to proofread better, but still, I save that activity for paying work...

Modestinus.wordpress.com

Mack,

Is it remarkable? The legal academy, like the legal profession itself, remains tightly tethered to "tradition" -- even of a relatively recent vintage. You also have to keep in mind the institutional elements which makes it extremely difficult to inaugurate change. Now that the legal academy in the U.S. has shifted from being a professional school akin to business schools to being a quasi-academic graduate school, it's going to be difficult to reverse that trend. Too many actors have a vested interest in the current model, and law reviews now play a key role in perpetuating the myth of an authentically academic "legal academy."

In a "perfect world," the legal academy would be divided into two unequal parts. The first -- and largest -- part would return to the professional school model where law students learn, well, law along with the other skills contemporary lawyers need (which ought to include entrepreneurial and project management skills). The second -- and radically smaller -- part would be academic departments of legal studies. They could be attached to political science departments or left separate, depending on the institution. In the end, though, their mission would be to promote the scholarly study of law as a separate academic track with M.A. and PhD degrees awarded. Its literature would be scholarly, peer reviewed, and more positive than normative. Moreover, by being attached to the larger academy as a whole, it would benefit greatly from critique and analysis offered by other academic disciplines. My suspicion is that only a handful of schools would be able to take on these types of departments, which would greatly cut back on the superfluous literature out there while demanding a greater degree of academic rigor amongst its participants. These types of departments should have little-to-no interest in training lawyers, though it's not inconceivable that those with law degrees may want to continue their studies in these types of departments. Law schools, though, should be left to train lawyers and its faculties should be primarily comprised of experienced lawyers and judges, not professional academics with little-to-no experience in the everyday legal system.

It won't happen. I know this because too many hack academics have their futures tied up in pretending to be real academics in law schools. As for legal literature, the division sketched above ought to lead to two tracks of law writing: The first being professionally oriented law review articles which are of use to the wider legal profession; the second being purely academic writings which may, in time, trickle down into the professional journals, but only to the extent its insights -- after testing, analysis, and critique -- prove sound. If this became the new model, most of the specialty journals in this country could fold (thank goodness) and law reviews could get back to the business of at least trying to be useful to the legal profession.

MacK

Oh dear - here I am defending law professors - but "It won't happen. I know this because too many hack academics have their futures tied up in pretending to be real academics in law schools."

I do not really agree with the hack academic characterisation - moreover, there are a lot of academics whose work I respect and read, many of whom are serious legal scholars - both Posners for example (and there are many others.) I do agree that there is a lot of "hack academic" publications, but I do think that law professors, for the most part, could do better - they do have the resources and the time and indeed the ability (even if many lack real experience.) The problem is an environment, a system that either enables intellectual sloth, or broadly rewards it, encourages it.

That is what I find disappointing about this discussion - it never addresses relevance. Tuition subsidises law reviews - none break even - what is sad is that so much of what is in law reviews is just irrelevant junk. It is not science, it is not "basic research" (to use that term is so outrageously stupid I found Paul Gowder's post to be ... well indescribably self regarding while full of the proverbial...) There are law professors who write articles that are very relevant - not many, but they exist. Law professors in general could write papers of relevance - but would they be published? Would they be frowned on by the academic culture?

Go back through the posts in this thread - did any ask how to make law reviews more relevant to the law as practiced? But outside academia this is the main critique. And the overall impression is frankly, law professors are irrelevant to legal practice, their scholarship is pointless and they don't give a ....

Paul Gowder

Look, I agree that a lot of crap is published in the law reviews. But is the "basic research" characterization really all that bizarre? Consider even Roberts's (kind of silly) example: "evidentiary approaches in 18th century Bulgaria." Suppose someone did write a well-researched piece of original historical research on that. Do you think that wouldn't count as basic research?

What if it were evidentiary approaches in 18th century England? Now we're getting closer to immediate practice relevance, thanks to things like the common law. No chance of this trickling down in the same way as antitrust scholarship? Or what about 18th century colonial America? (And what if, gasp, it turns out that 18th century Bulgaria influenced one of these more practice-relevant areas? Or what if it produced some helpful institutional innovations that could be transposed to the contemporary domestic context?) To what extent are you committed to dismissing the entire field of legal history?

Or, heaven forbid, what about the normative work you guys hate so much? You're aware, I assume, that there are entire fields of academic research outside law schools that are substantially or entirely normative, right? Ethics, political philosophy, political theory, public policy, large chunks of economics (which is often at least based on implicit normative presuppositions), various kinds of professional ethics outside the law schools including medical ethics, business ethics, etc. Would you like to throw out those too? (Is political philosophy to be abolished because politicians and voters don't read it?)

Now, the question of whether law professors are qualified to do that work is a different one. Well, here's where I agree with the people who think that peer review should be introduced in some form: that's the only real way to answer these questions. Note that part of the point of blind peer review is just to avoid having to ask these questions about qualifications: if someone with merely an undergraduate degree in the subject can get past peer review in a history journal, or a philosophy journal, or whatever, this gives us some strong reason to think that they're qualified to be opining on the subject.

But that's beside the point. I wasn't arguing that we shouldn't have peer review in the law journals. I think we should, in some form (details of the form to be supplied on request, later, when I have more time). I was simply pointing out that we don't demand that every damn article speak to on-the-ground practitioners in other fields, and we shouldn't impose that demand on law either.

MacK

"I was simply pointing out that we don't demand that every damn article speak to on-the-ground practitioners in other fields, and we shouldn't impose that demand on law either."

But nearly no US law journal articles speak to legal practice - indeed practical irrelevancy has become a point of pride to law professors.

Again I ask, why has none of this discussion focused on relevance?

Paul Gowder

Hmm... ok, here's a fairly random selection from some of the "top" law reviews' current issues.

Columbia law review:
"Intellectual Property Defenses
By: Gideon Parchomovsky & Alex Stein"

from the abstract: "To remedy this problem, the Article proposes that defendants who raise class or general defenses be allowed to implead other potential defendants. To this end, it develops two mechanisms: “preclusion” and “restitution.” Both mechanisms permit impleaded parties to decline the invitation to join, but attach a consequence to the refusal. Under the preclusion mechanism, parties who choose to opt out would be barred from raising any general or class defense that was unsuccessfully asserted by the original defendant, if sued by the same plaintiff. The restitution mechanism imposes no procedural bars on the parties selecting to opt out. Instead, it requires them to pay the defendant a fair share of her litigation costs should she prevail on a class or general defense as they, too, benefit from her effort. The Article ultimately endorses the restitution mechanism."

Sounds pretty practically relevant, at least to Congress, right?

Ok, how about... let's keep it in the Cs. Cornell law review:
"Reviving the Paper Patent Doctrine
by John F. Duffy
One of the most interesting developments in patent law during the last century is the catastrophic collapse of the paper patent doctrine, which had authorized courts to discriminate against patents that were never successfully practiced by their patentees. The doctrine’s demise opened the door for the dramatic and controversial rise in patent litigation by “nonpracticing entities” or “patent trolls”—entities that, in the words of President Obama, “don’t actually produce anything themselves.” This Article undertakes a comprehensive review of this lost doctrine and shows that the doctrine took a balanced approach, hurting patentees who never developed their technologies but helping those who had. The doctrine declined because it could not be reconciled with the theoretically impoverished views about information disclosure embraced by courts of the late twentieth century. With the advent of more sophisticated theories about the value of learning-by-doing and, more generally, about the problems associated with generating and disseminating information, the paper patent doctrine now has what it lacked in the past—a solid theory for favoring patents that were taught not just through paper
disclosure but also by real-world practice. This Article concludes that the paper patent doctrine should be revived and that existing case law provides a sufficient foundation for a revival."

Sounds like something that courts might want to think about, eh?

How about the California Law Review. Bet those dirty hippies at Berkeley really just want to talk about bringing about world communism, right? Hmm...

"Appellate Review of Social Facts in Constitutional Rights Cases
Caitlin E. Borgmann
There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts' findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This Article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except in certain readily identifiable circumstances, it makes sense for appellate courts to defer to trial courts' findings of social fact. Federal bench trials are better suited than the appellate process to vetting social facts when laws are challenged as violating constitutional rights. When key social facts are missing from the trial record, a remand for further factfinding at the trial level will often be workable and appropriate. Since a court's findings of social fact can determine whether constitutional rights claims succeed or fail, it is crucial to achieve a clearer understanding of the roles and respective authority of appellate and trial courts in factfinding in constitutional rights cases. This Article sorts out the tangle of rules and precedents concerning appellate review of trial court factfinding in the constitutional rights context. It then proposes a framework for assessing whether and when appellate courts should defer to trial courts' findings of social fact in constitutional rights cases."

Woah. Gosh, if I'm bringing an equal protection claim, maybe I wanna cite that?

Let's stay in the Cs, but move a little down in the rankings, shall we? Case Western law review doesn't have abstracts up, but let's just say that I suspect the following are rather likely to be practice relevant, at least to those practicing environmental/energy/natural resources law, the EPA, etc.:

"Symposium - Hydrofracking: State Preemption, Local Power, and Cooperative Governance by John R. Nolon & Steven E. Gavin

Symposium - Recognizing the Shared Ownership of Subsurface Resource Pools by Peter M. Gerhart & Robert D. Cheren

Symposium - Shale Oil and Gas State Regulatory Issues and Trends by Christopher S. Kulander

Symposium - Awakening the Slumbering Giant: How Horizontal Drilling Technology Brought the Endangered Species Act to Bear on Hydraulic Fracturing by Kalyani Robbins

Symposium - Hydraulic Fracturing and Water Management in the Great Lakes by Nicholas Schroeck & Stephanie Karisny

Symposium - Shale Gas and Clean Energy Policy by Joseph P. Tomain

Symposium - Climate Change and Natural Gas Dynamic Governance by Elizabeth Burleson

Symposium - Applying Some Lessons from the Gulf Oil Spill to Hydraulic Fracturing by Heidi Gorovitz Robertson

Symposium - Frackonomics: Some Economics of Hydraulic Fracturing by Timothy Fitzgerald"

Have I made my point yet?

Jeff Redding

Hi everyone, I think we clearly need a new thread on what peer-review is and can be, and I'll try to start something like that towards the end of the week/beginning of next week. Nancy Leong's point that peer-review can operate on a continuum is spot-on, and it would be helpful for people to talk about the different kind of peer-reviews they have participated in (as either a submitter or a reviewer).

MacK: "Practical irrelevancy has become a point of pride to law professors"??? I really do not know who you are talking to. Most law professors I know are happy or proud when their scholarship gets pointed to or cited outside of academic contexts. Non-academic audiences are not the audience that many legal academics are writing to specifically often enough, but no one (that I know) treats day-to-day law practice as uninteresting or shun-worthy, or takes "pride" in "practical irrelevancy." As well, people have different experiences with how to be "relevant," or want to experiment with different ways. Law blogs are one such experiment.

Modestinus.wordpress.com

Paul,

That's disingenuous because one can go to the same issues and find such things as...

Columbia Law Review -- Jamal Greene, "Pathetic Arguments in Constitutional Law"

Abstract: Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle’s classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse—think of “Poor Joshua!”— but existing accounts of constitutional practice do not provide resources for understanding the place of and limitations upon such appeals when they appear in judicial opinions. This Article begins to fill that gap. Pathetic argument is one of the acceptable modes of persuasion that constitutional argument shares with other deliberative domains, though at its best it can be used to amplify arguments within the set of discourses—text, history, structure, precedent, and consequences—that make constitutional law a distinctive form of politics. Normatively, appeals to emotion are most easily justified in opinions that seek to declare rather than apply law; in separate writings; when addressed to accepted subjects of constitutional argument rather than the ultimate outcome in the case; and when they arouse other-regarding rather than selfregarding emotions. A nuanced account of the proper place of pathetic argument in constitutional law is instrumental to understanding what it means to engage, and not to engage, in constitutional discourse.

Setting aside the fact that Greene's article is unlikely to be of any practical value, it's an example of a law scholar yanking from other disciplines in an amateurish way. Morevoer, at nearly 100 pages, it's excessively long. If there really is that much to say on the topic, write a book. (Though this is a side note, the article is another example of a professor being published in his own school's journal.) While I actually found a few of Greene's observations interesting, "interesting" is not tantamount to "useful." Also, much of his analysis is impressionistic, which feeds right into the hands of critics (like Richard Posner) who believe that law scholarship has gone wayward over the years.

I think, however, that a distinction might need to be made between Tier 1 and Tier 2-4 journals. The more "elite" the journal, the more likely the content is going to be academic, abstract, and colored by interdisciplinary references. Most of these articles are going to be needlessly long, dripping in "normativity" (which, more often than not, means liberal moralism), and of little-to-no value to the legal profession at large. Lower ranking journals do tend to have more "practical" pieces in it, perhaps because they are not attractive to the "leading lights" of the academy and therefore receive more submissions from practitioners and clinicians (that's just a guess -- I don't know the actual numbers). Also, not everybody who teaches in a law school aspires to be the next paradigm shifter in his profession. Some just want to make intelligent and sensible contributions to law through narrow, subject-specific analysis. That's fine. The problem is that most of this type of work won't make its way into elite journals and therefore those generally intelligent, but perhaps "non-theoretical" or "non-interdisciplinary," types are going to be at a serious disadvantage when it comes to hiring, promotion, and tenure. Someone who has written intelligently on, say, the Warsaw/Montreal Conventions and the applicability of forum non conveniens in aircraft accident cases and, subsequently, have had their work cited repeatedly by courts adjudicating those issues is far less likely to find a home in the academy than a recent Ivy League graduate who did a year clerking for a federal judge before penning, "Transsexual Evidence Law in the Light of Lacanian Psychoanalytical Themes" or "Tort Law as Concentration Camp: An Agambian Analysis."

Paul Gowder

Not disingenuous in the slightest. Again, I didn't claim that all articles were practice relevant (indeed, I defended the proposition that they don't have to be). I demonstrated that I could spend a lousy five minutes of effort to find a bunch of articles that are, and thus conclusively refuted MacK's claim that "nearly no US law journal articles speak to legal practice - indeed practical irrelevancy has become a point of pride to law professors"

Jeffrey Harrison

Very late to a really good discussion. I am probably repeating some of what has be said although I tried to read all of it. There probably are too many reviews but that reflects the fact that they exist for the students. The proliferation can be traced to the "everyone is above average" mentality that my generation started. I expect there will soon be reviews for each student and each student will be EIC and be able to put it on his or her resume.

Slightly more seriously, the number of reviews means there is virtually no chance that a piece will go unpublished (although I have come close). This, when joined with the push for more lines on one's resume, means quality can suffer. And there is a temptation to write and rewrite variations on a theme.

I think each school should annouce that it will consider only one scholarly work per year for assessing the effort of facutly. Sure, you can write 5 but if you know everything depends on one work, the incentive would be to write the best possible single article.

Fewer and better articles would appear. Some journals would go away.

I would add two other rules. No expedited review and all reviews are blind reviews.

Jeffrey Harrison

Opps, forget to mention this. I notice two aspects of the discussion that are important. (Many are but I am noting only two.) From time to time I read about the usefulness of legal scholarship. I'd like to know to whom it is useful. More specifically, does it advance the public interest or private ends. If it is the later then tuition or taxpayer supporter legal research is simply a transfer payment from tuition or tax payers to the shareholders of private entities -- much like the process of training people to be lawyers who then go into private or corporate practice.

The other matter is cost. Suppose like at my school you get a 9 hour rather than 12 hour teaching load if you write. At a salary of 200K that is 50K a year for research. And if there are 30 people on the faculty in the same boat we are up to $1.5 million. Maybe if we leave the cost side out, legal scholarship is a plus but when the costs are considered it looks like a disaster, at least investment-wise.

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