Balkinization  

Monday, May 19, 2008

Complaints About Law Review Submissions, And What Is Changing

Brian Tamanaha

As predictable as the sun will rise every day, every couple of months will come a rash of complaints about the unfairness of the law review submission process. The latest round followed from the discovery that Yale Law Journal's claimed "blind review" process is not blind (update: an editor of the journal just sent a note explaining that their review is completely blind, so this complaint against YLJ may well be unwarranted).

The gist of the complaint is that it's all about the letterhead: elite letterheads get a charitable read, less than elite letterheads don't (and sometimes don't get read at all). (This was confirmed in a study a few years ago when the same draft was sent under two different letterheads, and received the predicted disparate responses). One way around this is to ask (or impose upon) a friend in an elite place to urge their law review editors to take a close look at your piece, although many find this distasteful. Another way is to secure an offer from a lower-ranked journal, and try to bargain your way up through the expedited review process (persuading editors of elite journals that they should actually read the manuscript), but that feels like an abuse of the lower-ranked journals. Every now and then a "letterhead-challenged" article breaks through, often enough to keep the hope alive.

That's how it works. And, let's be honest, it's justifiable. There are too many submissions (thousands) for student editors to screen, and using the letterhead as a proxy for quality is as rational as any other strategy. They are students, after all, with classes, exams, and jobs, and limited knowledge about law.

Once we accept this reality, it becomes clear that the only solution for the "unfairness" in the process (though "unfairness" is the wrong word) is to come to a collective recognition that the placement of an article is not itself a measure of its quality. Law professors often say this, but deep down they don't really believe it because elite journals have magical names.

Things are changing dramatically anyway. The emergence of SSRN is altering the face of legal scholarship, in some ways rendering journal placement an afterthought. This new system is slanted in its own way (bloggers have a huge exposure advantage), but it is also much more open to talented people who work in obscure places, especially with the assist of services like Legal Theory Blog, Legal History Blog, and Empirical Legal Studies. Indeed, it seems plausible that student editors will begin to use SSRN, and blog discussions of posted drafts, as a measure of interest in a submission (correcting, somehow, for the blogger advantage), and perhaps even as a way to find and solicit pieces for publication. There are signs that we are headed in this direction, which will bring a new set of winners and losers, and a new host of complaints.

As this plays out, student editors should get a break. It's not their fault. And, funny thing, a good number of these editors go on to become law professors, where they experience it from the other side.

Comments:

Would you mind digressing from your topic and explaining to the rest of us why law journals are edited by students?

The letterhead bias exists in other disciplines, so I recognize that having expert editors would not solve this problem.
 

As a geezer with over 50 years of practice, I appreciate and enjoy the greater timeliness that SSRN provides, even in draft form, of articles that may end up in law reviews. It is not only the Legal Theory Blog but also the Legal History Blog that culls, recommends, links to SSRN articles. I am grateful to them now that I have more time to read for pleasure without the battle of billable hours.
 

William,

I think it happened by accident. The main legal journals in the nineteenth century were run by lawyers and judges (Western Jurist, Albany Law Journal, American Law Journal). In the later part of the century the students at Harvard Law School decided to start and run their own journal, and that's what set it off.

As to why this practice continues today, the answer, I think, is that it takes a lot of work to manage submissions (I was an associate editor for a professional journal) and professors don't want to do it. That's another reason why we shouldn't complain.

Shag,

For a geezer, you are still sharp and active. Thanks for your participation on this blog. And thanks for reminding me about Legal History Blog, which I added to the post.

Brian

Brian
 

Brian, I have two questions: why don't more law faculty members attempt to develop faculty-edited journals? And, why don't more legal academics try to publish outside of the law reviews (e.g., in political science or 'law and society' journals)?
 

Prof. Tamanaha:

We virtually always consult SSRN at my (non-blind, non-YLJ, top-20) law review. If we happen to be aware of blog discussion/publicity/interest, that gets considered in addition to the traditional criteria such as the author's CV, faculty recommendations, and what we independently think of the article. I'd be surprised to learn that other (non-blind) journals don't operate in the same way. Thus, it's not so much "plausible that student editors will begin to use SSRN" as: this is already widespread practice.

(Incidentally, we will still publish an article lacking all the secondary indicia if we like it enough [and if it the screening AE likes it enough to push it to committee]. More stuff probably gets lost that way, of course. And it's a lot easier to talk yourself into an article from Richard Epstein if you're on the fence than an article from a practicing attorney [to give fairly extreme examples].)
 

Bill,

Law professors do publish in peer reviewed journals, but this is unusual. There is a standard pecking order for the CV value (career enhancing) of publications, dominated by the top 20 law reviews, so that's what everyone seeks. Things are skewed so strongly in this direction that many (most?) law professors would take a top 40 law review placement over a peer reviewed journal, simply because the latter get less recognition within the standard formula.

Joe,

Thanks for the information. That's pretty much what I suspected.

Brian
 

than an article from a practicing attorney [to give fairly extreme examples].)

The lowest of the low, apparently.
 

...bloggers have a huge exposure advantage...

The difference being anyone can start a blog. (I'll submit Althouse as Exhibit A in support of this contention...).

...correcting, somehow, for the blogger advantage...

You mean like they now correct for the Ivy-League vita advantage? :-)

Also, as long as we're trumpeting legal-academy blogs, one of the best is Empirical Legal Studies, particularly for those of us who believe peer review is a better system.
 

"Lower ranked" professors commonly believe that pre-publishing a piece on line (SSRN or their own home page) kills the chance of placement in a journal. They publish on SSRN only after receiving a bid from a law review and getting the review's approval.
 

I'm not quite ready to buy that law review editors will be savvy enough to correct for the blogger advantage.

On the other hand, I'm not quite ready to buy that they even want to do that. The point for the law reviews isn't quality, isn't readers and citations. If a piece is read more, do they really care why it's read more?
 

As a professor at the University of Toledo College of Law in exotic Toledo, Ohio I send articles out and see who picks them up.

We are around 107 on US News and World Report. Some of us get into the top 20 and some don't. Some get into first journals and some get into more specialized journals at top schools.

I understand that at some law reviews you have to shmooze the editors to get them to even read an article. Maybe we'll see forms of payola in the future and some law professor equivalent to Alan Freed will become the scandal.

It is all a very mysterious process. As far as I have seen it, all one can do is write what one thinks is important and send it out. When you die what you wrote is all that will remain that is direct evidence of your contribution to legal thought.

The indirect evidence is in the students that you have a chance to teach and watch them go off and do things and influence others. And then there is the service that is done for something that has meaning.

When I was an Articles Editor for the Harvard International Law Journal - second journal there - we did read all the draft articles submitted. I do not think that there were as many back then as there are now.

Best,
Ben
 

This comment has been removed by the author.
 

Malla,

I can only speak for my own journal on this, but we do not consider your piece to have already been published, and thus refuse to publish it, if you've posted it (a draft, really) on SSRN. To the contrary, it probably helps you, if the piece is downloaded enough to show that there is interest in it, and this is probably even more the case where you're a "lower ranked" professor (we already know that there will be interest in anything Richard Posner writes).

Jason,

I would say that we don't want to correct for the blogger advantage. Free publicity is free publicity, and thus, if you're a regular contributor to Balkinization or Volokh or Concurring Opinions or if you're Brian Leiter, that's likely to count in your favor.

Of course, there's no mathematical formula here -- ultimately it comes down to how we "feel" about the piece. And ultimately we want to get citations and to have our articles be discussed, sure, but we also want everything we publish to be good. So the "blogging bump," as you might call it, won't come into play in a situation where it might need correcting for, i.e. where we think the article simply isn't that good.
 

William said (12:11 PM) --
>>>>>> Would you mind digressing from your topic and explaining to the rest of us why law journals are edited by students? <<<<<<

Excellent question. Richard Posner says,

IN ACADEMIC LAW, AS IN MOST ACADEMIC FIELDS, the principal vehicle for the publication of scholarly work is the scholarly journal. But in other academic fields, except law, the most prestigious journals are edited by seasoned specialists, usually professors, who have had years of experience both as editors and as scholars in the field covered by the journal. Not only that, but in deciding what to publish, the scholar-editors usually are strongly influenced by the advice they receive from other professors, to whom they refer the submitted articles for peer review . . . .

The system of scholarly publication in law is starkly different. With a few exceptions, law reviews are edited by law students rather than by professors or other professionals. The law reviews are numerous, are published bimonthly or at more frequent intervals, are edited without peer review, and are seemingly unconstrained in length.
(emphasis added)

What qualifies law students to edit law journals without even using peer review ? In what other learned profession does this kind of thing happen? Law students are not even considered fully qualified to write law journal articles themselves -- their law journal articles are called "notes." Something else I have noticed is that most law journals are published by individual law schools whereas most scholarly journals in other fields are published by scholarly societies -- it is apparent that the student-editing of law journals helps to account for this difference.

Brian Tamanaha said (2:42 PM) --
>>>>>> I think it happened by accident. The main legal journals in the nineteenth century were run by lawyers and judges (Western Jurist, Albany Law Journal, American Law Journal). In the later part of the century the students at Harvard Law School decided to start and run their own journal, and that's what set it off. <<<<<<

Richard Posner also said,

This system -— so strange, even incomprehensible, to scholars in other fields -— first emerged in the latter part of the 19th century, when legal scholarship was primarily a professional rather than an academic product. Its primary aim was to serve judges and practicing lawyers, rather than other professors, by offering careful doctrinal analysis, noting, for example, divergent lines of authority and trying to reconcile them.

Brian Tamanaha continued (2:42 PM) --
>>>>>> As to why this practice continues today, the answer, I think, is that it takes a lot of work to manage submissions (I was an associate editor for a professional journal) and professors don't want to do it. That's another reason why we shouldn't complain. <<<<<<<

There is plenty of reason to complain. Having submitted papers peer-reviewed by experts in the subjects of the papers means less work -- not more work -- for journal editors because the journal editors then don't have to review papers on unfamiliar subjects. How this pattern of student-editing of journals without peer review of papers ever became the norm in the legal profession is beyond me. The law journals are not just educational exercises for the students -- the Harvard Law Review alone was cited 4410 times by federal courts alone in the decade 1970-79. The courts' acceptance of law journal articles that have not been peer-reviewed shows that the law profession has very low standards. Another sign of the profession's low standards is the practice and acceptance of arbitrary censorship of visitors' comments on law blogs.

In contrast to the field of law, peer review is a fetish among Darwinists -- a common argument against criticisms of Darwinism is that the criticisms were not published in peer-reviewed journals. In Kitzmiller v. Dover, Judge John E. Jones III, in a profession where scholarly journals are typically not peer-reviewed, hypocritically ruled that Intelligent Design is not science because supposedly it has not been published in peer-reviewed scientific journals.

Brian Tamanaha said (original post) --
>>>>>. . . . it becomes clear that the only solution for the "unfairness" in the process (though "unfairness" is the wrong word) is to come to a collective recognition that the placement of an article is not itself a measure of its quality. Law professors often say this, but deep down they don't really believe it because elite journals have magical names. <<<<<<

Also, William said (12:11 PM) --
>>>>> The letterhead bias exists in other disciplines, so I recognize that having expert editors would not solve this problem. <<<<<<

Law is the most snobbish of the professions. A post on my blog titled "Hahvahd Law School snobbery" describes the grotesque degree of overrepresentation of Ivy League law schools -- particularly the Harvard Law School -- on the US Supreme Court and in the courts' citations of law journal articles.

Larry Fafarman
-- Association of Non-Censoring Bloggers
 

I just want to clarify.

Brian Tamanaha said,
>>>>>> As to why this practice continues today, the answer, I think, is that it takes a lot of work to manage submissions (I was an associate editor for a professional journal) and professors don't want to do it. That's another reason why we shouldn't complain. <<<<<<

I don't see anything wrong per se with student editing of law journals -- what irks me is the lack of peer review. And peer review is not just for the purpose of screening papers -- peer review also helps improve papers.

Peer review of law papers is often easier than peer review in other fields -- for example, in mathematics it may be difficult to check another mathematician's derivations.

So often have I read biographies of prominent people and seen that they were student editors of law journals and thought nothing of it. Now I am really shocked to learn that these law journals are not peer reviewed, are the official law journals of law schools, and are frequently authoritatively cited by court opinions, other law journals, etc.. I can now see why legal professionals see nothing wrong with arbitrary censorship of visitors' comments on blogs. My opinion of the ethical standards of the law profession grows lower by the day.
 

The website of the Berkeley Journal of Criminal Law implies that peer review of law journals is unusual:

BJCL is one of the first legal journals to have instituted a Faculty Advisory Committee, which reviews articles we accept for publication. If you publish with our journal, you will have the benefit of peer review of your scholarship by leading criminal law faculty at Boalt Hall.
 

I think that maybe a big reason why the law journals are typically not peer-reviewed is that these journals are usually published by individual law schools whereas the best potential peer-reviewers may be at other law schools or outside the law schools entirely, particularly when a submitted paper is on a very narrow and highly specialized subject. I think that a potential peer-reviewer who is not on the faculty of a particular law school would not be strongly motivated to peer-review papers submitted to a law journal published by that school. IMO journals published by scholarly societies have less trouble in finding peer-reviewers. Any way that one looks at it, the law journal system is screwed up.
 

That's how it works. And, let's be honest, it's justifiable.

Good point. The problem is, it's turtles all the way down. Admissions committees bombarded with thousands of applications use LSATs as a proxy for student quality. Hiring committees looking at hundreds of FARs then use law school as a proxy for quality. Law review editor browsing thousands of submissions use letterhead as a proxy for quality. Then other law professors with stacks of unread articles on their desks use placement as a proxy for quality.

We could short-circuit the whole process by just using LSATs to determine tenure votes.
 

I just can't believe this pattern of law journals generally having no peer review, whether or not they are edited by students. Why don't different law schools have their own policies about peer review of law journals? What kind of credibility should the field of law have when the major journals in the field are not peer-reviewed?

It is almost like the idea of an engineering school having a student-edited flagship journal with no peer review. Engineering has many branches, e.g., mechanical, electrical, and civil, and each branch has sub-branches, e.g., mechanical engineering has strength of materials, fluid mechanics, heat transfer, etc.. And then the sub-branches have their own branches. The journal editors confronted with papers outside their specialties wouldn't have a clue (of course, the problem in engineering is worse than in law because the training in engineering is often highly specialized, but the problem nonetheless exists in law). A psychology professor of mine once observed, "you can't be a genius if you don't know anything" -- the principle applies to individual subjects as well as knowledge in general.

Peer review in law is actual more effective than peer review in some other fields, because everything is out in the open in law and can be easily checked, whereas peer reviewers in other fields often find it difficult or impossible to reproduce experimental results, check mathematical derivations, check computer program coding and computer outputs, etc..

Also, where peer review of these law school journals is done at all, it is often just in-house review by faculty that is done, whereas the best peer-reviewers may be outside the law school.

The Harvard Law Review now requires faculty review of submitted articles, and considering Harvard's great influence, other law journals may follow suit--

. . . unlike many journals, we require faculty reviews and a vote of our entire staff before we can accept a piece.

Peer-reviewed law journals are discussed here.
 

As a student-editor of a journal, i have long been bewildered that students edit journals. Students who barely have a grasp of tort law (okay, those of us who were taught by Prof. Tamanaha have a vice grip on tort law), and who have zero experience in legal academia, are the gatekeepers. We are barely qualified for the task of bluebooking a journal, let alone editing it. We take it seriously and work diligently, but editing is a job for professors, not students.

Our use of indicia of eliteness is not only justified, but necessary. Students can't and shouldn't be expected to work at the level of experienced academics. Like so much in law school, it is an insane system that continues via institutional inertia and conservatism.
 

beckett said (10:14 PM) --
>>>>> As a student-editor of a journal, i have long been bewildered that students edit journals. <<<<<<

As I said, to me the big problem is not the student editing but the lack of peer review. Often even faculty members are not well-qualified to review articles outside their very narrow areas of specialization. Often the best peer reviewers are outside the law school and sometimes even outside the legal profession altogether. It shouldn't even be called "peer review" because reviewers outside the law profession are not really "peers" -- it should be called "expert review." I am not a legal professional, but on my blog I have specialized in "monkey trials" -- e.g., Kitzmiller v. Dover, Selman v. Cobb County -- and have read and written dozens of articles about them, and so I understand how long it takes to become familiar with a very narrow area of the law.
 

Here is a new development that is likely to affect law journals:

. . . the Harvard Law School faculty unanimously voted .. to make each faculty member's scholarly articles available online for free, making HLS the first law school to commit to a mandatory open access policy.

. . . Earlier this semester, the Faculty of Arts and Sciences voted to adopt a policy similar to the Law School's new initiative.


This development may result in more opportunities to comment on the articles. As I said, it is becoming more and more important to have policies against arbitrary censorship of comments posted on the Internet.

Larry Fafarman
-- Association of Non-Censoring Bloggers
 

Why Student Edited Journals?

I provide a short history of the student-edited journal in The Movement for Open Access Law, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=918298, with citations to the longer histories.

One can argue that the publication of student-edited law reviews anticipated legal realism. Judges were initially affronted by student pieces arguing that cases had been wrongly decided, but they then began to cite and publish in the reviews themselves as notions of law and legal authority evolved.
 

MC said,
>>>>> One can argue that the publication of student-edited law reviews anticipated legal realism. Judges were initially affronted by student pieces arguing that cases had been wrongly decided, but they then began to cite and publish in the reviews themselves as notions of law and legal authority evolved. <<<<<<

The tone of your comment suggests that student editing of law reviews without peer (or expert) review, faculty review, or faculty supervision is excusable. As I said, these law reviews are not just educational exercises for the students -- the Harvard Law Review alone was cited 4410 times by federal court opinions alone in the decade 1970-79 alone.

The idea of peer (or expert) review actually makes more sense in law than in technical fields. For one thing, the law lends itself to peer review to a greater degree than technical fields. In the field of law, everything is out in the open for everyone to see and references are easily checked to see that quotation or paraphrasing is accurate and that there is no quote-mining, but a reviewer of an article in a technical field may find it difficult or impossible to reproduce experimental results, verify mathematical derivations, check computer coding and computer output, etc.. Hence, peer review in technical fields is often an exercise in futility. Also, because of the principle of stare decisis in law, the consequences of wrong or bad ideas may be longer lasting in law than in technical fields. There is no principle of stare decisis in technical fields -- wrong or bad ideas in technical fields are readily discarded.
 

Larry Fafarman Said:

"This development may result in more opportunities to comment on the articles. As I said, it is becoming more and more important to have policies against arbitrary censorship of comments posted on the Internet."

What hypocrisy! Larry lists himself as the president of the "Association of Non-Censoring Bloggers", an organization with only one member. At the same time, his own blog "I'm From Missouri", while having a header decrying censorship, is heavily censored. He even goes as far as to copy parts of what he has censored out of context and then comment on them while censoring out any answers.
 

Bill C is full of crap. And he doesn't even have the guts to give his real name.

I finally had to start deleting comments on my blog because trolls like himself were taking advantage of my no-censorship policy by cluttering up my blog with crap like the following:

(1) Gossip about my private affairs

(2) Outright lies about objective facts, e.g., saying that I admitted something that I did not admit and that I denied admitting

(3) Saying that I misunderstood something without giving another interpretation

Meanwhile, he sees nothing wrong with the real arbitrary censorship that goes on at other blogs & websites. He is a hypocritical sack of *&#%@^.
 

> Bill C is full of crap. And he doesn't even have the guts to give his real name. <

As Larry knows, my name is Bill Carter. Although I have known Larry for a half century, he claims that I do not exist. He also claims that his brother Dave does not exist.

> (1) Gossip about my private affairs <

Larry considers correcting misstatements he makes about himself or pointing out his failures in court to be "gossip about his private affairs." Larry has a remarkable string of failures in court which he attributes to "corrupt judges".

> (2) Outright lies about objective facts, e.g., saying that I admitted something that I did not admit and that I denied admitting <

Larry is projecting. He often claims that others have said things that they have not. He has in the same post denied that he has censored anything and then tried to explain why it was censored.

>(3) Saying that I misunderstood something without giving another interpretation <

If another interpretation is given and Larry doesn't understand or agree with it,he pretends that it hasn't been made.

> Meanwhile, he sees nothing wrong with the real arbitrary censorship that goes on at other blogs & websites. He is a hypocritical sack of *&#%@^. <

Larry has been unable to give an example of where he has been censored arbitrarily although he has been banned on at least eight blogs. Wikipedia banned him after his self-proclaimed "edit war". This is described on the Wikipedia site. Ed Brayton banned him not because he asked questions that Ed could not answer but because he engaged in endless personal attacks and sock puppetry. He has yet to show where he was banned anywhere except for his own outrageous behaviour.

This is getting off the subject but when the biggest censor around accused others of censorship, I had to reply. If anyone wants to see what is really going on with Larry's sites "I'm From Missouri" and "Association of Non-Censoring Bloggers", I recommend that they check these sites themselves. The truth of what I am saying and the falsehood of what Larry is saying will be obvious.
 

Bill C is a lying sack of *&$%#^. I don't know him.

He is a lousy, disgusting fink who takes the side of corrupt judges against the little guy.

>>>> Wikipedia banned him after his self-proclaimed "edit war". <<<<<<

Everyone knows that Wickedpedia sucks, dunghill. You are not fooling anyone.

Here is a description of the point where unscrupulous BVD-clad blogger Fatheaded Ed Brayton kicked me off his blog permanently. He kicked me off because he disagreed with my literal interpretation of a federal court rule. I said that when a plaintiff refuses to accept an out-of-court settlement offer that would provide relief equal to or greater than the maximum relief that could possibly be provided by the courts, the judge may dismiss the suit for "failure to state a claim upon which relief may be granted," FRCP 12(b)(6). Duh.

If Bill C.'s claim that I also practice arbitrary censorship of comments is true, then this problem of arbitrary censorship of comments on the Internet is even worse than what I claimed it to be.

Also, I noticed that this blog's blog link list in the sidebar has a link to Fatheaded Ed's "Dispatches from the Culture Wars" blog -- that's a disgrace. Also, why don't you put my blog, "I'm from Missouri", in your blog link list -- my blog has hundreds of posts about legal issues, with many of those posts based on a lot of research. I think that I have the biggest collection of posts on monkey trials of any personal blog on the Internet. If you are too snobbish to link to the blog of a blogger who is not a legal professional, please note that Fatheaded Ed is -- by his own admission -- not even a college graduate.
 

It's like me saying that murder is a problem and Bill C. saying, "you have not presented one example of where you have been murdered."

Forget about that stupid jerk. He not only clutters up my blog with his worthless garbage, but he follows me around to other blogs and clutters them up too.
 

> Bill C is a lying sack of *&$%#^. I don't know him. <

Larry has also claimed that his brother Dave is not his real brother, then he tried to sockpuppet a substitute Dave onto Ed Brayton's blog. Ed exposed that scam brilliantly.

Larry has further claimed that several people including myself, "Voice in the Wilderness" whom Larry has blocked from his blog, "Voice in the Urbanness", "Hector", Kevin Vicklund, and several others are actually sockpuppets of Ed Brayton. I wonder what color the sky is on Larry's planet.

> Here is a description of the point where unscrupulous BVD-clad blogger Fatheaded Ed Brayton kicked me off his blog permanently. <

A more acurate description of what happened can be found on Ed Brayton's "Dispatches From the Culture Wars" blog.

> If Bill C.'s claim that I also practice arbitrary censorship of comments is true, then this problem of arbitrary censorship of comments on the Internet is even worse than what I claimed it to be. <

I don't doubt that arbitrary censorship occurs. The problem is that Larry can't show a real case of where arbitrary censorship is practiced on any blog but his own.

> Also, I noticed that this blog's blog link list in the sidebar has a link to Fatheaded Ed's "Dispatches from the Culture Wars" blog -- that's a disgrace. Also, why don't you put my blog, "I'm from Missouri", in your blog link list <

Perhaps it is because, as Wikipedia says, it is a "crappy" blog.

If anyone wants to know the truth, go to Wikipedia for the truth about Larry's sock puppetry and edit wars. For Larry's antics on Ed Brayton's blog, I would recommend that readers check it themselves. To really open your eyes about Larry's "I'm From Missouri" or his one man "Association of Non-Censoring Bloggers" blogs, I would invite people to check them out themselves.
 

Bill C is a worthless sack of *%$&#@^ who thinks that the readers of this blog give a damn about his personal attacks on me.
 

The level of censorship on Larry's blog is increasing as he finds himself less and less able to defend his lunacy logically.
 

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