Criticizing law reviews has been in fashion for quite a while, and in the New York Times there’s a new article with a similar refrain of attacks on law reviews. In essence, the criticisms boil down to: (1) law reviews should be peer review and articles not selected by law students; (2) many law review articles aren’t cited; (3) practitioners don’t read law review articles. We’ve heard all these before, and I’m growing very tired of these stale arguments.
Although law reviews are on odd system for publishing, I think that the model is actually not as crazy as it might seem.
1. Is the grass really greener with peer review?
For all their imperfections, students do a fairly decent job. I don’t think that articles in other academic disciplines in the social sciences are any less obscure or are cited more. Peer review is filled with cronyism and with way too much “I don’t like this article because I disagree with it” or “I don’t like this article because I’m not cited enough.”
Although law review editors can get bogged down in silly footnote citation formalities, for the most part, I’ve been pleased with my editing and have received some really excellent editing that has sometimes been more extensive than the editing I’ve received when publishing with academic book publishers.
2. Do we really want to bother with peer review? Is it still needed in today’s age where there’s no longer a scarcity in publishing opportunities?
Peer review is a “front end” evaluation (prior to publication). It is designed to determine which scholarship is worthy of publication. That made sense when there was a scarcity of publishing opportunities. We wanted good scholarship to be published because being published was something not anyone could do, and it distributed and publicized scholarship.
Today, there isn’t a scarcity of publishing opportunities. Anyone can publish. Most articles make it on Westlaw. Hardly anyone reads the print journals anymore.
Peer review can readily occur on the “back end,” with professors evaluating articles post-publication.
Of course, professors will use law review placement as a proxy rather than read the article and decide its merits for themselves. But this is laziness that professors should blame themselves for. If we want to make things more fair, then professors can be more fair in how they evaluate scholarship and stop using law review placement as a proxy if it isn’t a good proxy.
One reason why professors use law review placement as a proxy is that despite a number of misplaced articles, law review placement isn’t completely random. It’s not a perfect proxy, but for the most part, the top law reviews publish more articles I that I find to be of quality than lower ranked ones. Not always, but I don’t need a perfect proxy in today’s age where it is so easy to search for and find scholarship. It’s a kind of weak proxy that can sometimes be helpful, but it shouldn’t replace making one’s own evaluation.
In the end, if we don’t think law reviews do a good job evaluating scholarship, nothing is stopping us from reading it and deciding for ourselves!
3. Should we be alarmed that so few articles are cited?