The Economics of Law Reviews

librarystacks.jpgI’ve suggested that part of the job of a student law review editor (especially an EIC) is to think strategically about increasing the use of her or his journal by the legal community. This might lead editors to recruit student authors to write doctrinal “mini-treatises” on a regular basis, or to aggressively promote articles to targeted lawyers and judges.

This reorientation of law reviews’ mission from pincites toward promotion has as yet failed to set the world on fire. A stumbling block is that law journals are structured inefficiently.

The economics of law reviews is obscure. Posner’s observation that “[t]o student editors, the cost of an author’s time is zero . . .” was all I could find, though I value my time positively, so I didn’t look very long. Because schools subsidize journals, we know that the supply of articles sold is “inflated,” but we don’t know exactly to what extent. Some law review editors are paid – but that practice is shrouded in mystery too. (The by-laws of reviews available on the web are silent on pay issues). Here is what we do know.

Law schools subsidize law reviews with money and faculty time for three basic reasons, [1] to create quality signals and avoid the market for lemons; [2] to improve the school’s academic reputation (to mixed effect, as Al Brophy has demonstrated); and [3] to compete for entering students. A great deal of this looks to me like me-tooism: schools pay for journals because other uses of money are harder to explain. I don’t think that any law school subsidizes its law review in the hopes that it will one day make money by selling advertising or subscriptions. [Update: I’ve been reminded (in the comments below) that many believe that law reviews provide good educational experiences for their members, which is another reason schools might subsidize publication.]

Though certain (wonderful and wise) students may seek to promote legal scholarship, I imagine that most law students serve as editors for very practical reasons. Signaling is the most important. Apart from the general quality signal, membership on certain reviews may create a proxy for specialization in a practice area in a way the Bar does not otherwise permit. (Thus, if I were want to hire a water lawyer, I might look to those who have served on a natural resources journal.) Students may also seek (in Posner’s words) “useful training” in editing and citation.

The resulting market is interesting.

If students serve as law review editors mostly to warrant quality to employers, why has editing become bloated? A naive analysis might conclude that a student would spend as little time as possible editing, so as to maximize leisure. This analysis (no doubt) explains some editors’ behavior, but there are countervailing factors.

First, each lower-level student may be signaling to her fellows something about her diligence, acuity, and carefulness, to advance in the internal tournament to become a member of the editorial board. When the time to vote comes along, that striving spader might hope that her fellows will say: “Geez, Dori spent months on that article adding pin-cites and notes! She deserves some reward!” Because students have few incentives to evaluate the quality of editing (who wants to cite-check another’s cite-checking?), the law review election process may be contributing to inefficiencies.

Second, editors too may be encouraged to seek quantity and not quality. No one will remember an editor who asks for too many citations (the theory goes): but an author burned by a miscite may go to the ends of the earth to pursue the editor who didn’t catch it. Even to the extent that an editor has no academic ambitions, bloat in editing and writing is a safe strategy.

Unfortunately, no students have particularly good incentives to increase law review quality or citation. I know of no journal that pays its editors more if they increase the journals’ citation count, or (in an analogue to some law school’s practice) “land” a citation in a Supreme Court opinion. (Though, citation in opinions is at best an imperfect gauge of an article’s impact on judges.) Given opportunity costs, the real compensation for editorship is deferred future salary. To the extent that editors do care about such matters, their reward for doing so is diffuse. (This is true even for “marketing editors”, who are attuned to circulation, not citation.) Thus, the current economic organization of law reviews results in predictably inefficient levels of editing, with insufficient attention to the actual quality of articles or their impact on the legal profession.

So, if you were a law school dean interested in remedying this agency cost problem, and increasing the visibility of your school’s law review, what would you do? The default solution to agency costs is compensation structure. Maybe deans should pay editors who, at the end of their tenure, have increased their journals’ impact factor.

Unfortunately, this solution doesn’t work that well for term-limited student editors. By the time that any particular editors’ package of reforms has a chance to work, they will have moved on: increased citation will accrue to the benefit of another editor. Compensation schemes that would defer payment over the course of years are unwieldy, at best, and suppose a level of pay that is vastly higher than what I imagine most deans would agree to.

Judge Posner suggests instead that law reviews should be re-captured by schools and run by faculty. But, given tenure, this proposal is impractical and likely to be poorly run to boot. The sticks available to encourage diligent oversight by senior faculty are weak; junior faculty members are unlikely to believe that they internalize any law review prestige gains.

A better solution, I think, would be for law schools to hire part time promotions/marketing staff for law reviews, whose goal it would be to increase the use of the law review by the community, not its circulation. (I don’t know of any such folks, but I’d be happy to be corrected.) This seems like a good use of law school money, and a cheaper and less risky improvement of journals than the alternative – peer review. Marketers could help students to develop editing strategies, would encourage them to go online to promote articles, etc. Best of all, journal marketers could be encouraged through long-term compensation structures more effectively than students ever could be.

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5 Responses

  1. I thought we subsidized our law review because it was a great learning opportunity for our students. Is there no room for that on your list?

  2. dave hoffman says:

    I’m not sure that it is a great learning opportunity for most students on most law reviews. But you are right, that certainly should be in the mix, and my post is incomplete without it.

  3. Matt Bodie says:

    You may be interested in the presentations at the Lewis & Clark Open Access & Legal Scholarship symposium last spring. Here’s the site: Jessica Litman’s article on the economics of open access has a nice breakdown of the revenues and costs of a typical law review.

  4. Former Exec Editor says:

    Not all law schools subsidize their law reviews. Law reviews are paid by Westlaw and Lexis, and perhaps receive payments from other republication companies, so some law reviews turn a profit (e.g., Yale, Harvard–there may be others).

  5. Paul Gowder says:

    Wait, why is Posner’s suggestion so impractical? Senior faculty in other disciplines run the journals: there are fewer of them, but they’re miles and miles better. Obviously the tenure system didn’t strip the incentives there.