ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Thursday, February 25, 2021

Crazy Stuff in the World of Law Reviews

I recently learned that the top law reviews submit articles that they are considering publishing for outside review.  I do not know the details.  Based on reports on Twitter, the people who do such reviews often do not know the extent to which the student editors rely on such outside reviews.  Nobody asked my opinion, but I think this, coupled with exclusive review and the separate submission model to which the top student-edited journals have moved, is a terrible development.   The playing field tilts towards the people with the best letterhead, and exclusive review and peer review that is not blind review (because it can't be) just make matters worse.

I have written in praise of student-edited journals before, and so it seems time to dust off this post from 2013 (edited a bit).  In short, the system was imperfect, but it was never broken, so there was no need for a fix.  The hundreds of student-edited journals are not the only game in town, so if you prefer peer review, there are venues for that.

My post from 2013 starts with a discussion of the Peer Review Scholarship Marketplace, which seems to be defunct or it may be the basis for today's practice -- I don't know.  

For years, there has been a movement to replace student-edited law reviews with a more professional model.  Judge Posner threw his support behind an operation called PRSM -- the Peer Reviewed Scholarship Marketplace.  But the idea has not caught on (judging by the stagnating PRSM membership).  In my view, it is a fine thing to have different models out there, so it is fine with me that some student-edited journals are experimenting with peer review (and I hear anecdotally that many student-edited journals have been doing so informally all along).  But my main point here is to stress how we all benefit from student-edited journals, and law professors should stop griping and realize how lucky they are to have the current arrangement.  

I have written on this subject before here, emphasizing the benefits students derive from their work on law journals.  . . .

In this post, I would like to address some of the advantages of student-edited journals from the author's perspective.  The main advantages of student-edited journals is that they are plentiful and rely on free labor.  Since as I explained above, the labor is a valuable component of legal education, I don't feel too badly for the students who are not paid for their editorial work.  But their efforts are responsible for raising the level of legal scholarship well above that of other humanities and social sciences.  

When I was a historian, I submitted articles for peer review.  I waited 3-6 months for readers' reports.  Sometimes the readers' reports were positive, and my article got published without further editing beyond typesetting.  Other times, I was told to revise and re-submit.  In general, I would say that the suggested revisions were recommendations that I recast my own research to satisfy the reviewer, and I was not always convinced that doing so would enhance the quality of the piece.  But I would do my best to revise, and there were times when my attempts to satisfy the reviewer were unsuccessful.  I could move on to the next journal, but I don't think I ever did.  I published in a specialized field, and there were usually only a couple of journals where it made sense for me to publish.  The universe of qualified reviewers was also limited.  Two of my historical writings, to which I devoted months of work were never published, and one of them should have been.  

Without a doubt, legal scholars benefit from being able to submit simultaneously to scores of publications.  If none of those publications bite, we wait six months for the next round and try our luck with a fresh crop of editors who may not have the benefit of a meaningful institutional memory.  At some point, worthwhile scholarship finds its way into print, and as long as the publication is included on a database, and most journals are, students, attorneys, and scholars can find it regardless of the prestige of the publication.  

Okay, so what is the downside?

One potential downside is that a lot of useless nonsense gets published.  I would be very interested to see evidence that peer review prevents the publication of useless nonsense.  People bandy about the statistic that 40% of law review articles are never cited.  Okay, is a higher percentage of peer reviewed material cited?  In any case, as I wrote in another post:

As for scholarship itself, Brian Leiter was here a few weeks ago to deliver our annual Seegers Lecture on Jurisprudence.  In response to a question about the value of scholarship, he said something very close to my view.  Most of what gets published is a dead end.  But a certain percentage of it is very valuable, and there is no way of telling ex ante which scholarship is going to move the ball in a meaningful way.  That's why we need lots of people doing their best to move the ball and why we need to continue to support faculty scholarship. 

The other downside is that students are incompetent as editors not only in selection but also in the way they deal with the text.  This, I say, is nonsense.  Peer review may be more rigorous but peer editing clearly is not.  Whenever I have submitted essays for peer review, the final product is almost identical to the original, except for formatting and the repair of the odd typo.  Student editors work hard to improve the quality and clarity of the writing, and they also find authority where it is lacking.  They make us seem much more lucid, knowledgeable, and careful than we really are -- or than we are when we first submit our offerings up for publication.  

The last time I published in a peer-review, peer-edited journal, my piece was: 1) accepted, 2) rejected following a coup on the editorial board, and 3) re-accepted after the coup unraveled.  The re-acceptance was conditional on revisions.  The readers' reports came to me nearly two years after the original submission, but I received many vague missives from the journal suggesting that I had very little time to make the necessary changes or the journal would pass on publication.  I made the requisite changes (which were idiotic and necessitated a new research project) and re-submitted.  For months, I heard nothing.  My inquiries received no response until I received the page proofs.  The page proofs corresponded to my original draft.  That's right, the "professional editors" who insisted that I revise my article were then prepared to publish my article without the revisions.  Publication followed some months later, well over two years after the article was first accepted for publication.  I know we all have horror stories about student editors, but could they really have done much worse than that?

I have been storing these thoughts up for a while, hoping that I would one day have the time to publish them in a student-edited law journal.  For now, a blog post will have to do.

I am eight years down the road and still grateful that I can simultaneously submit to as many student-edited journals as I like, confident that one will take them, and then I will have six months (at least) to revise, at which point the student editors will get to work and make certain that my piece is sufficiently clear and that my claims are adequately supported.

That said, I wonder what problem we think we are solving through by supplementing student review with peer review.  From what I hear the peer review is not double-blind, nor could it be in the typical case.  The * note on the typical law review article in a top journal often names 15-30 people who have already read and commented on drafts, along with a smattering of conferences and workshops at which the article has already been presented.  People at top law schools often workshop their pieces for months before they submit them for publication.  By that time, the people most eligible to serve as reviewers have already provided their feedback.  They already like or dislike the project, so having people who already have formed opinions about the authors and their work does not really tell the journals whether or not the article is suitable.  And there is the huge danger on the other side.  If the eligible reviewers have never previously seen a piece, might they not be inclined to think, "Who is this person writing in my field?  Why haven't I seen it?"  And if those thoughts run through the reviewers' heads, might they not be inclined to more skepticism that they might have when reviewing a known quantity?  Isn't that why we have double-blind review in the first place?

The system is rigged in ways that cannot change, and given other variables, beyond the control of student editors, I don't think they should.  Top 20 law review have to publish people from top law schools because if untenured people from top law schools cannot place their pieces in the top 20, they won't get tenure.  Moreover, people at top law schools have all sorts of advantages in preparing their scholarship for publication.  They have the workshopping opportunities, the colleagues devoted to scholarship with whom they can bat about ideas, colleagues in other departments with whom they can collaborate, more money for research assistants and are more likely to have research assistants who have strong research skills, better access to libraries, databases and support staff, and a better shot that the people they want to interview will take their calls.  They have lighter teaching loads, more teaching assistants, and often a pre-tenure sabbatical.  They have more opportunities to take visiting positions at other law schools and benefit from lighter administrative duties and new colleagues and stimuli.  All of these things enhance the quality of scholarship coming from top law schools, and so the system would be rigged in their favor, even where it not the case, as I believe it is, that the faculty at top law schools are generally excellent scholars, who often have advanced degrees, and have done fellowships before starting full-time teaching that helped them to shape their research agendas. 

None of this is the fault of the student editors.  On the contrary, all of this provides background for why, all else being equal, student editors at top journals would be more likley to accept submissions from faculty members at top schools.  It is irksome that they feel compelled to add a form of peer review to their selection process.  It creates another barrier to entry where the barriers to entry are already high enough.

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