Another Data Point in the Case for Student-Run Law Reviews

Check out the thorough Report of the Investigative Committee of the Standing Committee on Research Misconduct at the University of Colorado at Boulder concerning Allegations of Academic Misconduct against Professor Ward Churchill. Arguably, the allegations against Churchill provide some support for student run law reviews. Such journals, when well-run, provide checks against just the kinds of misconduct which Churchill has apparently engaged in. Let’s go through the problems in order, and consider whether student edited law journals (“SEJ”) or peer-edited journals (“PEJ”) would have been better positioned to avoid them.[FN*] I assume that a PEJ normally requires authors to check their own citations, relying on something like the honor system and reputational sanctions.

  • A SEJ would have surely questioned the eq. seq.’ing of the General Allotment Act of 1887, while PEJ would let it pass. I’m routinely taken to task by student editors for failure to find pin cites for statutory citations.
  • Neither a SEJ nor a PEJ would have have likely caught the ghost-writing of the support sources, although if the peer reviewer knew of the connection, it is at least possible that questions would have been raised. That is, PEJ’s are better at catching self-citation and its variants.
  • I have to think that a good cite-checker would have caught the problems with respect to the Indian Arts and Crafts Act contained in Allegation “B”. I would have thought a good PEJ would have too.
  • On the other hand, no student editor would have been able to do much about Allegations “C” and “D”, while peer review might under some circumstances have been able to catch the problem. SEJ’s simply aren’t equipped for this level of nuance.
  • A well-run pre-emption check might have caught the plagiarism problem in Allegation “D” and “f”: I seriously doubt that any PEJ process would have.

The point is not, of course, that peer review is terrible and student editing is fantastic. The traditional critique is trenchant. But, student review, when performed by a motivated board, is designed largely to deal with the problems of misattribution of sources, misleading summaries of the relevant law, and to find ways – through very precise citation – to permit later replication of research. It is part of the conceit of law professors that their scholarship, because it is relied upon by courts at least once in a while, needs to be invulnerable to the very close look that Churchill’s work has just received. Whether this reality bears any relationship to practice is an open question. I’d bet that if you compared the average law review article to the average social science peer edited journal, the error-per-citation rate would be lower. [FN**] But perhaps I’ve simply drunk too much of the law review kool-aid.[FN***]

FN* Granted, most of the allegations against Churchill occurred when he published outside of a PEJ or in a PEJ with unknown procedures.

FN** The number of errors would be way higher. The reason is obvious.

FN*** And all this despite having failed, eight years ago this week, to beat the odds in the Harvard Law Review write-on competition.

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2 Responses

  1. Paul Gowder says:

    The question is not which process is better at catching outright scholarly fraud, the question is which process is better at catching subtle errors in reasoning, misunderstandings, etc. It’s fair, you’d agree, to presume the latter is more widespread and a bigger problem than the former?

  2. Nate Oman says:

    “And all this despite having failed, eight years ago this week, to beat the odds in the Harvard Law Review write-on competition.”

    There loss. I wouldn’t worry about it. Some of the riff-raff that they do let on is a bit…