Tuesday, July 22, 2014

The Value of the Imperfect Law Review System

Steve Bradford yesterday posted a thoughtful (as is usual for his posts) critique of law reviews. I had drafted a comment, but Steve suggested that I should post links to my prior posts separately, so here goes, along with (what has turned out to be a lot of) additional commentary.

I think Steve has some valid (and compelling) points. As I have written before, though, I can’t go as far as he does.  I won’t rehash all that I have written before on this subject, but one of my earlier posts, Some Thoughts for Law Review Editors and Law Review Authors covers a lot of that ground.  Please click below to read more: 

We do have some common ground.  For example, I agree with Steve 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 can confirm 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 (or both). 

Still, I think the educational value of the law review is greater than some appreciate. In many ways, I think this is the point of law reviews. 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, as my prior post (linked  above) details..

In follow-up to Steve's post, Steve Bainbridge (here) makes some good points, too, and considers the concept of self-publishing works as an alternative.  He notes 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").

I think Bainbridge is spot on with identifying this problem.  I am of the mind that the current system is full of inartful and inadequate proxies for the value of scholarship, mainly citations and law review/law school rankings.  However, I don't see an easy way to skip the proxies, though I support trying to find some more (or additional) objective measures that would be better.  

Easier said that done.  I have actually heard of a faculty member (note this is hearsay and was not someone I worked with and I did not hear it directly) arguing that "all works are equal as long as they completed, even if they are printed and stuck to a tree."  Sorry, but no.  

So, I am all for better outlets for our work, and I think law reviews and other journals can be done in better manner.  As I have noted before, though, it's no easy task (see Step Back A Bit: Law Review Criticisms Not Exactly Unique). I do think that if we, as faculty members, took a greater role in certain aspects of the publishing process, the overall quality and respect for the final products would improve.  That would mean we actually have to do it, though, and getting consensus around more work is often harder than I'd like to admit.  I, for one, would be willing to help, and I'd be happy to be part of moving such a process forward.  

As a general matter, I am proud of my scholarly work and believe it has value, even though virtually all of it would be better if I did it again.  As my co-author Jeff Lipshaw says, "If you don't read your earliest work and gag on a frequent basis, you've got a real problem with self-deception." I do, but I still find things of value in the pieces, too.  I can't help but notice that all the ragging on law reviews necessarily calls into question the quality of my work (and everyone else's) in such outlets.  And perhaps I should be more confident in my work, but despite what I consider a reasonably successful career so far, criticisms of my work sting, regardless of where it comes from.  

Thus, perhaps as a newer scholar I am more willing to defend law reviews because I am defending my own work (and feel compelled to do so), but I don't think that’s it.  I’ve worked both sides of the law review editing process, and I see a lot of value in it. I have read a lot of articles I wish I hadn’t, but I have also read a lot of very good work that doesn't get widely recognized. I absolutely agree that we can, and should do better, but I’m not ready to throw the system out completely.  I just think we’d lose a lot in the transition, so for now, I’d rather work on repairing a broken system rather than trying to create a new one that may not work at all.  


Joshua P. Fershee, Law School, Teaching | Permalink


Making the move to a business school means that I have to (1) educate my colleagues on the law review process; and (2) start making the move, in at least some of my work, to traditional, peer-reviewed journals.

One of the things that I think is much better about traditional, peer-reviewed journals is that the review of the articles is blind. Due to the blind review, the work is more likely to be evaluated on the merits rather than on the CV of the author. I know, as a law review editor myself, that the author’s letterhead factors into the law review article selection process entirely too much in many cases. With 2,000+ articles to “review” student editors must use proxies/filters and school affiliation was the one I saw used most regularly.

I know individuals who never got a placement higher than the one that they got when doing a VAP or fellowship at a top-school. I am sure their scholarship improved after moving to a tenure-track position at a lower-ranked school, but their letterhead wasn’t as impressive.

Traditional peer-reviewed journals typically get many fewer submissions, if only because most require exclusive submissions. I am sure peer-reviewed journals have their own problems. For example, as Steve mentioned, the lag time is typically even longer than the law review lag time, which is really painful if you are working in a rapidly changing area.

Posted by: Haskell Murray | Jul 22, 2014 12:33:17 PM

As a follow-up to my comment - what would be the downside of moving law reviews to blind-review? I believe there are a (very) few that claim to have made the move to blind review already.

Posted by: Haskell Murray | Jul 22, 2014 12:36:34 PM

One concern with blind review is that, given the current system, it's often easy to tell who the author is, at least if they are very prolific, because they will cite themselves. I do think that many journals can be done well with blind review, and it has its place, but I also think the rest of the system, including expectations for promotion and tenure, would have to change if we change the whole system fundamentally. This is a spot where I support the concept, but I am not sure a widespread change is feasible in the near term.

There are some journals that use outside blind reviewers. (I have even been such a reviewer for one top journal.)

There is no doubt peer review is valuable. I had an article in the Energy Law Journal, which uses three outside reviewers, and has a top-flight practitioner senior board. The editors and reviewers gave me outstanding comments and suggestions before publication. It's also my most cited piece.

Posted by: Joshua Fershee | Jul 22, 2014 12:48:21 PM


Just to clarify, my original post didn't really go to the quality of legal scholarship, just whether it needs to be published, long after its actual distribution, in a law review. I think the answer to that question doesn't depend on whether you think legal scholarship is, on the whole, good or bad. (I think that, with the proliferation of law reviews, it's now possible to get almost anything into print, but that's another issue.)

Posted by: Steve Bradford | Jul 22, 2014 12:57:58 PM

Perhaps, but in most cases the student reviewers would have to read past the abstract (and wouldn't be distracted by the letterhead) to find out the identity of the author. Even if they could learn the identity of the author, which I think would be impossible in many cases, the students would likely have to dig deeper into the article, which I think would be an improvement. Perhaps the students could do a more thorough review if they had exclusive submission requirements and a manageable number of submissions. I see that some law reviews, like FSU and Pepperdine seem to be doing that - at least with some of their spots - with announcements for exclusive submission on various blogs.

Posted by: Haskell Murray | Jul 22, 2014 1:06:25 PM

Thanks for the comments, Steve. I'll do my own bit of clarifying. It wasn't my intent to imply you were questioning all legal scholarship. My comments there were to a broader sense of critique that seems pervasive at times.

Posted by: Joshua Fershee | Jul 22, 2014 1:14:44 PM

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