Friday, July 25, 2014

Reforming Law Reviews II: A Proposal

Following up on my previous post on law reviews, and inspired by some posts at the Business Law Prof Blog here and here, I thought I’d share a modest proposal for how we might move toward what I would consider to be a better world.

I agree that there are significant advantages to the law review submissions process, as compared to full peer review, in terms of the speediness of reviewing submissions, preventing the dominance of the field by entrenched senior scholars, and otherwise allowing a wider variety of voices to be heard.  In particular, for legal scholarship aimed at influencing appellate courts (read: law clerks), student editors are probably better at selecting the most potentially influential pieces than would be faculty.

That said, I think it ridiculous that student law reviews as they are currently structured dominate the legal publishing world.  This is probably more of a problem for some subfields than others.  I think the dominance and current structure of student law reviews is seriously holding back the development of legal scholarship in my field of taxation.

Unfortunately, most of the existing peer-reviewed legal journals have significant restrictions in terms of length and style.  I think there is value to the law review style and I’d love to see more peer-reviewed journals accept traditional law review style publications.  My ideal would be for there to be a bunch of journals like the Tax Law Review, except made fully peer reviewed.

How might we evolve toward a system with more peer-review publishing opportunities for traditional-style legal scholarship? 

I strongly urge student editors at law reviews to start by creating one peer-reviewed issue a year.  The remaining issues of the journals could continue with their existing submission processes, thereby maintaining the advantages of the current system.  But journals could accept submissions for their peer-reviewed issue off cycle.  I imagine that many scholars would then try to submit to one or more peer-reviewed journals prior to the start of the submission cycles, with the intent of submitting through the general non-peer-reviewed process come February or August, for pieces rejected through the peer-reviewed process.

Note that student editors could retain control and primary decision making authority over what pieces are accepted for the peer-reviewed issues.  As I understand it, all that peer-review requires is that the editors solicit formal reviews of scholarship before making a decision and that the decision be based partially on these formal reviews. 

A number of top law reviews already solicit faculty reviews of scholarship.  I have been asked to review pieces on many occasions.  But this is generally done informally and inconsistently.  I understand peer-review as requiring a consistent and formal process for soliciting review letters and incorporating these letters into the process of deciding what pieces to accept. 

Particularly for secondary journals, I expect that making one issue a year peer-reviewed would greatly improve the quality of the submissions received and published.  Currently, I send most of my best work to the Tax Law Review for exclusive submission.  I would happily submit to peer-reviewed issues of secondary journals focusing on tax or business law if such existed. 

If any student editors read this, I would be very happy to work with you to help in establishing a peer-reviewed issue of your journal.  Please don’t hesitate to contact me if you might be interested.

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Think this is a good idea, David. It might be especially helpful for those professors, like me, who teach law in a business school.

The American Business Law Journal ( is a peer reviewed journal that accepts law review-like articles. They seem to accept articles from a broad range of areas - corporate, tax, employment, IP, etc. Their acceptance rate, however, is usually quite low and there is definitely room for more journals like the ABLJ.

Posted by: Haskell Murray | Jul 25, 2014 12:50:32 PM

I like the idea, and I hope it gains traction. As you say, there are some hybrid journals out there with peer review already. I have published with the Energy Law Journal,, and the experience there was great. I got helpful input from the three external reviewers that improved the piece.

Posted by: Joshua Fershee | Jul 25, 2014 1:19:11 PM

The idea is good, but it would be even better to have a faculty-run journal issue, to avoid the problem of students favoring non-technical, glamor, surface-appeal topics (e.g. most con law).
There's also the problem of multiple submissions and of speed that must be dealt with. Referee reports take a lot of faculty effort, so it would make sense for all law reviews to use one set of referee reports. Also, in economics refereeing makes publishing slow--- say, 4 months to get the first referee reports back from the editor, then 3 months for the author to make revisions, then another 4 months for a second set of reports for the revision. If refereeing were done internally that could be shortened a lot.

Posted by: Eric Rasmusen | Jul 28, 2014 9:18:47 PM

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