Okay, the title of this post is a bit misleading, since I am not a law student. But I was once a law student, and I do think law students are important! The interests of law students, however, have been largely absent from the debate surrounding Adam Liptak’s The Lackluster Reviews That Lawyers Love to Hate, which has instead focused on judges (“Law reviews are useless!”), professors (“The process is irrational!”), and folks from other disciplines (“Wait, who selects and edits your scholarship?!?).
If you’re new to this week’s version of the Great Law Review Debate, you can find a nice round-up at UW’s Gallagher Blog here and here. I’ll try to avoid repeating what others have already said. Perhaps the best (or at least most enjoyable) statement of the case against law reviews is Fred Rodell’s anticipatory eulogy for law reviews, published in 1936. (Tellingly, Rodell’s farewell to law reviews was published in the Virginia Law Review, and we’re still talking about it today.) During a prior iteration of the Great Debate, way back in 2011, Matt Bodie refreshingly addressed the student side of the equation in this piece. But the interests of law students seem to be largely absent from this iteration. So here goes…
The Students’ Role in the Law Review Process
Law professors are supposed to teach law students. That’s actually one of the things we get paid to do. There has been a lot of talk recently about making law school more practical and more focused on skills. On that front, the student-edited journal process is one of the good guys: The student reads the article; the student tries to get her head around the ideas and arguments in the article; the student considers the author’s claims in the article; the student reviews the author’s stated support for those claims, and then considers whether the particular case, statute, article, etc. actually supports the claims; and then the student has a discussion with the author about whether and how the arguments, claims, and support make sense. Evaluating legal arguments, parsing legal texts, finding weaknesses in legal claims—all of those things sound like “skills” to me.
Now, would it be easier for the author/professor to go through that process with a fellow professor? Perhaps. But why are we trying to make the process easier for professors? If I give a draft paper to a fellow professor, there’s a good chance she’ll read it over, give me some helpful feedback, perhaps wrestle with the ideas a bit, and then move on to her own work. If I give the same draft to a law review editor, there’s a good chance she’ll spend all day Sunday reviewing one small subsection of the draft, ripping my sources apart so she can impress her supervising editor and get the satisfaction of telling some know-it-all professor that the case he cites in footnote 213 doesn’t say what he thinks it says. That sounds like a pretty good deal to me.
Sure, sometimes the student editors will get something wrong or will be a bit of a pain to deal with. (Of course, law professors get things wrong too and we’re not always the easiest to deal with either, but anyway….) If the student gets something wrong, well, isn’t that when we as professors should help explain the error to the student? That seems like part of our job. And if the student is a bit of a pain to deal with, well, perhaps a little professional mentoring is in order. And of course there will be numerous situations where the student won’t be “wrong,” but will bring up some punctilious correction that we’d rather not deal with. In that case, can’t we just say thank you and accept the change?
But here is the big problem with the lack of student focus: What’s the alternative vision of academic legal publishing? A world of legal scholarship in which law professors write articles and then pass those articles around to other law professors who read the articles, check all the sources, and really dig into the footnotes? That process has two terrible drawbacks: (1) It cuts students completely out of the equation, thereby depriving them of the educational experience working as an editor with a legal expert. And (2) it requires the allocation of massive amounts of professor time to scholarly pursuits—drafting and reviewing/editing—that will necessarily detract from professor time working directly with and for students.
There is already a loud chorus of folks inside and outside of law schools questioning whether student tuition should be funding academic scholarship that is sometimes (though not always!) unrelated to the students’ educational experience. That critique gains strength if student participation is completely removed from the process of reviewing, selecting, and editing scholarship.
A Solution in Search of a Problem
Of course, direct benefit to students is not everything. If the current process has disastrous effects on another metric, then perhaps those effects would outweigh whatever benefits students enjoy from the status quo. I must admit, however, that after reading numerous “The Law Reviews Are Terrible” articles over the past few years, I still can’t understand what the actual problem is. Where is the disaster? And without an understanding of the alleged disaster, I can’t figure out how the switch from student-review to peer-review would fix the disaster.
Take the quote from Chief Justice Roberts that Liptak deploys in his article: “Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
Okay, that’s pretty funny. But what does it have to do with student-edited journals? Do we really think that third-year law students are, on the whole, more interested in 18th-century Bulgaria than they are in, say, a practical reconceptualization of the Erie doctrine? When law professors sit around strategizing how to get their next piece published in the Harvard Law Review, are they advising each other to focus on historical studies of Eastern Europe? Anyway, I can’t imagine that the scholarly bias in favor of academic/esoteric topics would be reduced if we turned the reins over to the professors. But maybe I’m wrong; maybe the student demand for 18th-century Bulgaria really is that strong.
What about the complaints from law professors themselves? Professor Richard Wise—author of a study on law review reform and the main source for Liptak’s article—states that “[l]aw professors were more critical [of the current system] than any other group” in his study. Well, okay. But that sounds a lot like those studies showing both that Congress has a 10% approval rating and that everyone loves their own representative. In other words, my article on 18th-century Bulgaria didn’t place highly enough because of incompetent student editors, but your inscrutable tripe on 17th-century Turkey somehow got picked up by the Columbia Human Rights Law Review. (h/t Mel Brooks)
So what is the problem? Is the proliferation of student-edited journals causing an important, practical, judge-friendly draft to sit in the “Rejection” pile at every student-run journal office across the country? And assuming such a draft is sitting in the “Rejection” piles, are the existing peer-edited journals, SSRN, and scholarship-promoting blogs not picking up the slack by promoting this otherwise unread piece? Because unless everything goes completely haywire, it seems like the current system (1) gives many students the opportunity to engage with professors on current scholarly projects, and (2) provides an outlet for the publication of an enormous number of articles, which means lots and lots of ideas (some good and some not so good) are getting out there. And that seems pretty good to me.
Now, sure, the vagaries of the system will doubtlessly result in some articles getting published in “top” journals in situations where some professors might say the article shouldn’t have made the cut. And some articles will get published in lower-ranked journals when they “should” have gotten a better placement. But that seems like a small problem. The information is still out there. If people in the field want to read it, then they can find it on Westlaw, or the journal’s website, or SSRN, or via an email from the author just as easily if the article is published in the #1 journal or the #301 journal. And if those avenues are insufficient for an article to get the notice of specialty-area professors and practitioners, then I doubt a switch over to a peer-review process would be much help for that article anyway.
There really seem to be two main (and related) purported problems, which aren’t really problems at all: (1) promotion and tenure committees look at article placement “ranking” when making decisions, and (2) professors use law review placement as a proxy for quality when discussing scholarship amongst themselves. If those things are happening, and if professors consider that a problem, then the solution is easy: Stop doing those things. Voila! The problem of student-edited journals is solved!