Friday, July 25, 2014
This post started off as a comment to co-blogger Haskell Murray's post Modifying the Law Review Submission and Review Process, and is perhaps overkill, but at least a few of us, thanks in part to Steve Bradford's post, are finding the conversation fruitful, so here we go:
In response to my suspicion that widespread law review changes could impact promotion and tenure (P&T) processes, Haskell writes: "I am not sure why the expectations for P&T would have to change if law reviews instituted blind review. It seems that all blind review would do is make the selection process more fair."
Maybe he is right, but here's my thinking: I believe expectations for P&T would change because I believe that widespread blind review would increase the (already long) turnaround time for getting pieces accepted for publication. If I am right (an open question) that it would increase the review time, it would make it harder for some faculty to get their pieces accepted, which is often required for it to "count" in the review process. Perhaps this would be a good thing, but I would see it as a potentially significant change.
This could also impact higher ranked schools even more. That is, Haskell has noted, people visiting at higher-ranked schools often find that visiting submission to be their most successful submission. (I’ve never had a top-20 or even top-40 school with my name for a submission, so I can’t say for certain.) It is my sense that higher-ranked schools get a bump with law reviews, and that's not always (ever?) fair, but if that bias went away, it could make it even harder to get through the P&T process at those schools without some modifying my understanding of some assessment measures. This is where I agree with Steve Bradford that if schools are using law review rankings as a proxy for quality, they are shirking their duties, but I still think many schools (or at least some people in schools) do. Again, a change may lead to a good shift over all, but it would still be a shift.
I concede it’s possible that blind review could increase the quality of journals, but I think that would also need peer review to go along with it, which could, again, extend the reviewing timeframe. For the current system, I think one of the reasons we don’t have blind review is that the system is full of proxies. These proxies have perhaps been deemed desirable given that we have already ceded publication decisions to 2Ls and 3Ls, and open review gives those students more information. I do think it may be more desirable and more fair to use blind review, though I think there’s also more likely we’d be swapping one problem for another if we don't add more seasoned reviewers to the mix. In one of my earlier posts (linked in my recent one) other disciplines indicate peer review alone won't fix the problem, and I don't think just blind review will either.
I maintain that a faculty- and practitioner-assisted process (including blind reviews) would benefit law reviews and legal scholarship, but it means we’d all have to pitch in even more. (I support that, but it would need widespread buy in.) My sense is that law reviews are slowly responding to the concerns and that we will see a better process result. I think this whole discussion is a net positive, and I hope we’ll see more of an evolution. As I have noted in my other posts, though, because I see value in many parts of law reviews, I think the coming changes should be an evolution and not a revolution.