According to Professor Christopher Zorn of Empirical Legal Studies, law reviews are “terrible.” And he presents a list of grievances. I’ll get to those, and I’ve already discussed some of the recent “State of the Law Reviews” discussion here and here. But before the grievances, a more fundamental point: Professor Zorn doesn’t make clear his understanding of the purpose of law reviews so it’s impossible to judge whether law reviews are “terrible” or “great” at satisfying that purpose. You can’t call a cheese knife “terrible” just because you have a hard time cutting steak with it.
Let’s say the purposes of law reviews are to (1) get a bunch of ideas out into the universe, with a reliance on post-publication evaluation and sorting, (2) provide information that is useful to the bench, the bar, and scholars in some ratio, (3) have an article’s sourcing and arguments thoroughly checked by student editors, who effectively serve as volunteer student research assistants, and (4) give law students the opportunity to work closely with professors on current scholarship. On those fronts, I would say the law reviews are doing a decent job. But here are Five Reasons Law Reviews Are Terrible, according to Professor Zorn, with my comments:
Terrible Thing #1: “Carpet-bomb submissions” which is when “[o]ne submits one’s paper to literally hundreds of journals at the same time.”
Why is this terrible? Because science, history, and philosophy journals require single submissions. Okay, perhaps the fact that we do things differently is a sign that we should be skeptical of our methods. But Professor Zorn doesn’t explain what terribleness results from legal academics’ “carpet-bomb submissions.” Does it lead to lower quality? A less-practical focus? Worse writing? I’m not sure and he doesn’t explain. If anything, I’d imagine the carpet-bomb approach gets things published faster than a seriatim approach.
Terrible Thing #2: “Publication ‘review’” in which law reviews privilege the work of federal judges, professors at top-20 law schools and famous-ish law professors.
This criticism has some teeth. If, indeed, student-edited law reviews are favoring the “lesser” work of certain prestigious names and ignoring the “better” work of less-advantaged authors, then that sounds like a real problem. Maybe. Given the possibility of post-publication review, the “better” work will likely get picked up by some law review, so it will make it out into the marketplace of ideas where it can be read and discussed by other professors, practitioners, etc. But that brings us to….
Terrible Thing #3: Expediting, which is when professors leverage an offer at a “lower” journal into a fast review and possible acceptance at a “higher” journal.
Professor Zorn notes the process is inefficient. And it sure is. But think about why the process exists at all: Law professors want to move up in the rankings because they want their pieces to get published in more prestigious, highly ranked, big-name journals.
This fact should make us all skeptical that a switch to peer-review would eliminate “Terrible Thing #2”—an undesirable focus on prestige in article selection. Though law professors undoubtedly know more about the law, I’m not at all confident that we are more immune to the biases of prestige, status, and fame. [Quote removed from original post.] [Added text: If anything, students might be more willing to publish articles that upset the prevailing orthodoxy among scholars, the bench, the bar, society, etc.]
Terrible Thing #4: Someone once rejected a brilliant article because of a misplaced comma.
Or something like that. I’m really not sure. Dealing with student editors might sometimes be annoying—I’ve had long debates about Congress’ vs. Congress’s. But I’ve had those debates with professor editors and student editors alike.
Terrible Thing #5: The Bluebook is a “terrible style, seemingly designed for a long-gone era.”
Okay, lots of people hate the Bluebook. I happen to like the Bluebook. But if a professor-author is solely concerned with the quality of the ideas in her piece, then why not just focus above the line and let the editors do what they want with the footnotes/citations. Problem solved. Nothing terrible here.
It seems, however, that Professor Zorn does care about the formatting below the line because his complaint is not so much “I don’t want to worry about this stuff” but is more “I do worry about this stuff and they are getting it all wrong.” So, for example, he claims “cites to numbered references would be far superior” to “Ibid.” in law reviews.
Two things: First, a debate regarding the relative desirability of different methods for referring to already-cited work? As a lover of Bluebook minutia, I’m all for it. But I’m not sure this particular complaint cuts in favor of Professor Zorn’s claim that the peer-review process would be more painless than the student-editor process. Second, there’s no “ibid.” in the Bluebook; only “id.” (Yes, that’s sort of a Ghostbusters reference.)
Terrible Thing Bonus: “One sad consequence of all this terribleness is that law professors and law schools are not taken as seriously by other members of the university community as they might be.”
That may be true. I don’t know. But if it is true, then here’s what that tells me: Other professors are judging law professors by the perceived status of our journal process and not by the quality of our work. If the goal is to focus on the content of scholarship and not on secondary bells and whistles, then it seems these other academics have a ways to go.