A Modest Defense of Law Reviews
It is a pretty common place observation that one of the virtues of markets is that they manage to aggregate a great deal of disaggregated information. Obviously, folks disagree rather vehemently as to how effectively markets do this, but most people, I suspect, would admit that the market is frequently smarter than particular actors within the market. The same is true, I think, of law reviews.
The classical critique of law reviews is that they are staffed by dumb students who don’t know anything. Obviously, there is a lot of truth to this. However, I think that the case for the incompetence of law reviews can be overstated. While obviously no law review is doing a perfect job, citation studies suggest that the article selection process is far from random. All things being equal, articles that appear in top journals get cited more often than articles that don’t appear in top journals. Of course, it may be that law professors are simply dolts who are taking the name of the journal as a signal of quality. However, it seems at least equally probable to suppose that the law reviews — or at least the top law reviews — are identifying important legal scholarship considerably better than the classical critique suggests.
The mistake of the classical critique, in my opinion, is that it assumes that the only meaningful difference between law reviews and other academic journals is peer review. There is, however, a second and equally important factor: law reviews allow multiple submissions. This fact, coupled with the expedited review process, means that law reviews in effect compete with one another for pieces. Hence, you have a system in which a lot of smart but basically clueless students are desperately trying to find good articles. They are grabbing their information from lots of sources: discussions with friendly professors, a quick review of the literature on Westlaw, perhaps even blogs. None of these sources is perfect, and none of them amounts to any sort of expertise. Nevertheless, student editors are not making their choices at random. They are acting on the basis of information. When they act by making an offer, this places pressure on the “price” of the article by providing an additional reason for other reviews to consider it. The result is that taken as a whole, the system of multiple submission and expedited review will tend to aggregate information.
Peer review, in contrast, relies on individual expertise rather than the institutional aggregation of information. Indeed, the process of peer review is designed so as to insulate the peer reviewers from institutional pressure. They don’t compete with other journals. The process is slow. They are deprived of signals about what other people think of the article. Obviously, there are a lot of virtues to this system, and I suspect that in a lot of areas — sophisticated empirical research, for example — it dominates the law review model. However, the important point is to see that it is a model that relies on the conscious and personal aggregation of information, and that this is by no means the only way that information can be aggregated.
Does this mean that the law review system is perfect? Far from it. Obviously, factors such as reputation and law school letter-head have a huge impact on the process. Some of this is probably not such a bad thing. It is not as though reputation and law school letter head tells you absolutely nothing about the possible quality of the piece. Still, I have submitted articles as a practicing attorney and I am sure that there is bias against such pieces in the selection process. As an editor, I reviewed more than one piece that no one on the committee would have looked at but for a big name author. Law reviews, however, are not as bad as people argue they are.
The oddest thing of all is that in a sense it shouldn’t matter. Suppose that we believe that peer reviewed publications are decisively better signals of quality. Who cares? Presumably, the main consumers of academic publications are academics. In other words, they are people who ought to have the expertise to independently assess quality, and therefore don’t require the signal provided by where a piece is published.