Monday, July 21, 2014
Remind Me: What's the Point of Law Reviews?
A couple of weeks ago, I posted a review of an article on mutual fund fee litigation. In my post, I apologized for reviewing the article “late.”
I thought about the use of the word “late” after I posted. The article has been available on SSRN, the Social Science Research Network, since March, but it has not yet been published in a law review. But, in the world of blogs and instant access to everything, waiting until publication in print truly is late.
Most legal articles are now posted on SSRN as soon as they are finished, and I, like many other law professors, don’t wait until publication to read articles in my areas of interest. I pull those articles straight off SSRN. SSRN helpfully provides subject-specific emails with abstracts and links to newly posted articles.
My first crowdfunding article had hundreds of downloads before it appeared in print. It came out in a law review at almost the same time the final crowdfunding bill passed Congress; if I had not posted it on SSRN, it would have had no chance to affect the debate. (I’m not sure it had much effect anyway. The drafters of the final bill may have heard some of the notes of my composition, but they certainly missed the melody.)
So, in a world where articles are publicly available and read long before they appear in law reviews, what exactly is the value of law reviews? Most of their content is stale by the time it’s published.
Law reviews as filters
Law reviews certainly don’t do much to filter “unworthy” publications. Law reviews have proliferated to the point that almost anything can be published in a law review somewhere.
Law reviews as signals of quality
The law review in which an article appears may signal the article’s quality; if so, that signal usually comes too late. By the time an article appears in print, I and many others have already decided whether to read it. And reading an article’s abstract and introduction usually provides a much better sense of its quality than the journal name attached to it. Faculty members and expert practitioners are much better judges of the quality of articles in our fields than a student editor without significant expertise in the area. I know this is heresy, but even Harvard and Yale sometimes publish crap.
Law review placement also shouldn’t be used as a quality signal in evaluating untenured faculty members. Tenured faculty members who cede judgments of quality to second and third year law students, even the law review editors at prestigious law schools, aren’t doing their job.
Law reviews as editors
Law reviews provide editing, but, in my experience, that editing is as likely to reduce the quality of an article as to improve it. I can think of several instances where student editing made my article marginally better—including one brilliant addition to a footnote in a humorous article I wrote. (Thank you, Northwestern Law Review editors.) But I can also think of several edits inserted at the last minute without my approval that made articles significantly worse. I can’t think of a single instance where student editing kept me from making a serious substantive mistake.
Law reviews and accessibility
Once articles are published in law reviews, they’re available on Westlaw and Lexis, and thus more broadly accessible. But there’s no reason why availability needs to be tied to law review publication. If law reviews didn’t exist, Westlaw and Lexis would find a way to tie into the SSRN system. Or the free, publicly available SSRN system might eventually supplant Westlaw and Lexis, at least for law review articles.
Law review as an educational experience
I have been focusing on the needs of authors and readers. But what about the student editors? Don’t law reviews provide them with a valuable educational experience?
I see little value in educating students in the fine minutiae of Bluebook citation form, and most actual editing is done by students with little or no professional instruction or supervision. Advanced courses in writing, editing, and legal research could provide better instruction more efficiently.
So I repeat—what’s the value of law reviews?
Great, timely post which I probably shouldn't be reading as I work on two law review articles and a book chapter at the same time. I search SSRN regularly for my sources and many of them aren't even written by law professors anymore.
Posted by: Marcia Narine | Jul 21, 2014 10:39:13 AM
Great post. I reply over at my blog with links to some earlier ruminations.
As I ponder the question now, it seems to me that the decisive question is figuring out what impact self-publishing would have on citation rankings. They are, after all, the currency of the trade in many respects (see, e.g., the old quip that "dean's can't read but they can count").
Posted by: Stephen Bainbridge | Jul 21, 2014 10:41:17 AM
Speaking as an untenured law professor, all I can say is - I'm not in a position to buck the system, but I applaud your efforts to fight the power.
Posted by: Ann Lipton | Jul 21, 2014 10:56:21 AM
Steve, you raise a number of good points here, especially as to the diminishing value of law review publication for authors. Assuming your question is an honest one (!) and not intended to be a mere rhetorical device, I do have a few quick preliminary thoughts in response—two with respect to student value and one addressing the value to faculty. A number of blog posts and articles written about this in the past (and I know, from having read them, that there are quite a number!) may have covered some or all of these issues. If so, I am sorry for repeating them here to those who already have read them elsewhere . . . .
First, as to the educational experience for staffers and editors, I believe it extends well beyond Bluebooking, editing, and legal research and writing skills. It even extends beyond the additional substantive legal knowledge that the students may gain in working on specific articles. I believe that the interactions between and among staffers, between editors and staffers, between staffers or editors and faculty advisors, and between editors and authors teach students about appropriate professional interactions relating to legal work product. Delivering criticism appropriately is at issue throughout the law review editing process. Of course, as you point out, student editing sometimes harms, rather than improves, an author’s work. But that’s a teaching and learning opportunity. And what about managing people and documents, setting deadlines, and meeting commitments? The law review is a great testing ground for those matters, too. All of these prospects for education are important to a successful legal practice and will help students create a strong foundation for a good professional reputation. These lessons can, of course, be learned elsewhere in and outside the classroom. But they are part and parcel of the law review experience.
Second, law review membership and editorship are honorific and historically have provided a signaling device to prospective employers as to student quality. I have read a few pieces on this over times. This may have been one. But employers may be moving away from that view, especially where law schools are admitting a more significant percentage of 2Ls to the law review. I would value an update on all that from someone.
Finally, in terms of the faculty-benefit issues, I know faculty members who believe (rationally or not) that a law review publication is more valuable in tenure and promotion proceedings than a peer reviewed article. In some cases, this relates to the nature of the peer review publication. It may be unknown to the faculty member or be considered a less academic publication venue where the peer reviewers are not all academics. In some cases, this halo factor derives from the historical prestige (deserved or not) of certain general law reviews—including those for which the faculty member served as an author, a staff member, or editor.
Having said this, I am far from confident that the benefits of law reviews are sufficient to warrant their continuation and proliferation in a resource sensitive environment.
Posted by: joanheminway | Jul 21, 2014 10:59:25 AM
I realized after my last comment I should be more specific. I recently had my very first experience submitting to law reviews, and it was excruciating. I desperately wanted to be able to simply accept the offer from the first journal that came in, but career demands required that I use that offer as a basis for expediting at higher-ranked journals. The whole process seems incredibly artificial to me - anyone substantively interested in my article will find it through a Westlaw/Lexis search no matter where it appears, and they'll judge it on its usefulness. I wish that was all that mattered.
Posted by: Ann Lipton | Jul 21, 2014 11:01:36 AM
As I have written before, I think there you have some very valid points. I can’t go as far, though. I won’t rehash what I have written before on this subject (some links below), but I do agree with some of your points. For example, I completely agree that “Law review placement also shouldn’t be used as a quality signal in evaluating untenured faculty members. Tenured faculty members who cede judgments of quality to second and third year law students, even the law review editors at prestigious law schools, aren’t doing their job.” I also agree I have had mixed reviews on the editing front, including some who made my piece better, and others who either dumbed it down or got something wrong.
Still, I think the educational value of the law review is greater than some appreciate. The value that can come from a law review, I think, in part depends on the culture of the school and the review. I admit that my own experience may not be a very good proxy for law review experiences generally, but I learned about a lot more than the Bluebook in my time with the law review. With that said, I’ll leave my prior posts to round out where I think we diverge:
Some Thoughts for Law Review Editors and Law Review Authors: http://lawprofessors.typepad.com/business_law/2011/06/some-thoughts-for-law-review-editors-and-law-review-authors.html
Step Back A Bit: Law Review Criticisms Not Exactly Unique: http://lawprofessors.typepad.com/business_law/2013/10/step-back-a-bit-law-reviews-criticisms-not-exactly-unique-to-law.html
Posted by: Joshua Fershee | Jul 21, 2014 1:44:39 PM
Thanks, Matt. Peer review has its own issues, and much of some I say about student-edited law reviews could also be said about peer-reviewed reviews. In addition, peer review, in many cases, lengthens the delay before publication and makes it even less relevant.
Posted by: Steve Bradford | Jul 22, 2014 8:23:59 AM
Thanks, Marcia. Sorry to keep you away from your work. :)
Posted by: Steve Bradford | Jul 22, 2014 8:25:06 AM
If law reviews didn't exist and Westlaw and Lexis included SSRN, I don't think citations would change in any significant way. Of course, I'm not a big fan of citation counts, even though some of my articles get cited quite a bit. Many quality articles are not cited that much; some bad articles are cited all the time, usually with a "But see" signal.
Posted by: Steve Bradford | Jul 22, 2014 8:28:31 AM
You're right. Until tenured faculty reject the idea of placement as a signal of quality (or whatever they think it's a signal of), untenured faculty like you don't have much choice. For what it's worth, I have generally quit playing the negotiation game you describe. If a good review makes an offer and can promise timely publication with minimal editing, I make no attempt to move up. But that's easier for someone like me who has tenure and is well past the midpoint of his career.
Posted by: Steve Bradford | Jul 22, 2014 8:30:10 AM
Thanks for your long, thoughtful comment. Here are a few responses.
1. Working on a law review requires professional interaction, but I'm not sure it teaches anything about professional interaction. Who exactly is doing the teaching? Some of my interactions with law review editors, even third-year law review editors convinces me that some of them aren't learning much about how to interact professionally. I think clinical and simulation courses taught by experienced professionals would be much more effective.
2. I'm not sure law review membership per se is a quality signal to employers. The quality signal is the performance required to make law review.
3. You seem skeptical about the use of law review publication as a measure for tenure and promotion purposes. I am, too. I pay much more attention to my own review of an untenured faculty member's article and to outside reviewers' comments than to where the article is published. Relying primarily on the reputation of the journal seems like the lazy way out for faculty.
Posted by: Steve Bradford | Jul 22, 2014 8:40:42 AM
Thanks for your thoughtful comments. I hope our readers will go back and review your earlier posts. Just one comment: as I said in my post, I don't see much value in law review editors learning the minutiae of Bluebook citation form. If I had my way, we'd just teach students the basic citation forms and leave it at that. As long as authors provide me with a cite that will let me find the cited material, I couldn't care less whether the citation is in appropriate Bluebook form. (I know this is heresy in legal education.)
Posted by: Steve Bradford | Jul 22, 2014 8:45:37 AM
Thanks for this interesting post.
I will chime in on law review as educational experience. Personally, I learned a great deal from my law review experience.
As a 2L staffer, learning “Bluebook minutiae” mimicked, perhaps better that any other part of my legal education, the learning of various legal minutiae needed in the practice of law. Attention to detail is extremely important in the practice of law and law review promotes extreme, perhaps excessive at times, attention to detail.
As a 3L editorial board member, I received excellent managerial experience. In that respect, it was actually a benefit that our law professors played minimal roles; it was the students’ organization and we had to lead our fellow students, manage relationships with authors, and plan symposia.
Perhaps the above could be said about many student organizations, but most other student organizations I belonged to did not require the same level of dedication, did not manage a significant budget, and did not regularly produce a product.
Posted by: Haskell Murray | Jul 22, 2014 12:07:30 PM
Perhaps, although it still seems like a very inefficient way of teaching either attention to detail or management skills. I think we ought to teach law office management and I think we ought to require focus on detail, but for everyone, not just for people smart enough to get on law review.
Posted by: Steve Bradford | Jul 22, 2014 12:53:25 PM
At many schools, there are multiple journals and you can join one of the secondary journals fairly easily (or start your own journal...and add to the 1000+ already out there). Perhaps all the things learned through law review can be taught, but I am not sure all of it could be captured in a classroom. Also, the main law review often acts as a screening process for BigLaw - (1) were you smart enough to get on law review + (2) do you have the drive to do somewhat mindless tasks for hours on end.
Posted by: Haskell Murray | Jul 22, 2014 1:15:00 PM
Personally, I don't want an attorney who is willing to do mindless tasks for hours on end. :) In any event, I think computerization and international competition are getting rid of that aspect of the practice in favor of those who can act creatively.
Posted by: Steve Bradford | Jul 22, 2014 1:19:01 PM
Ha! Fair enough. Tedious might have been a better word than mindless. You are probably right that much of the document review, due diligence, and other tedious/mindless tasks are getting outsourced or computerized. Still, at least for the first year or two of practice, most BigLaw firms seem to value endurance over intelligence (though both are needed).
Posted by: Haskell Murray | Jul 22, 2014 2:02:16 PM
First, not knowing "what I missed," I graduated from a law school without law review. I've often thought it would have been something that would have been very beneficial. However, following the dialogue of comments it leaves me wondering. I've simply had to become a student of the Bluebook. Second, discovery of SSRN about two years ago added a great "arrow in my quiver." I think it is as "good as sliced bread."
Posted by: Tom N | Jul 22, 2014 6:28:54 PM
There are the reasons law journals say they exist: sort and produce scholarship (does anyone take scholarship seriously that’s “reviewed” by students with no grasp of the literature?) or train students (to do what, exactly?)
And there are the reasons law journals actually exist: 1) as places for scholarship to get published without necessarily having to produce the same quality that would be demanded by peer referees (why would faculty want to subject themselves to the peer review process over the current system?), and 2) as a self-aggrandizing club students can join to signal to future employers how servile they are by doing countless hours of pointless busy work at the whim of a clueless taskmaster (great way to find out who will probably be willing to bill hours on holidays).
Granted I work in government, but I don’t know anyone who takes that experience seriously as a signal of potential as a lawyer. I was glad to hear one of our supervisors tell one of our interns not to waste his time on a journal if he’s interested in working for our agency after finishing law school.
Posted by: Matt Palmer | Jul 21, 2014 10:31:25 AM