The perennial topic of the foibles of legal academic publishing is back in the news, thanks to a recent “Sidebar” column in the New York Times by reporter Adam Liptak. Much of the article rehashes the standard complaints, going all the way back to Fred Rodell’s 1936 jeremiad against law reviews. The news hook is the publication of three recent articles — in law reviews, ironically — that demonstrate that (1) law reviews are biased in favor of home-school professors; (2) the Supreme Court is not citing them as much as it used to; and (3) almost no one, not even law professors, is happy with the current system.
1. The Rumsfeldian Zen Acceptance of Law Reviews. One of the most common complaints about legal scholarship, from nearly all quarters, is that it is not peer-reviewed prior to publication. Several of the bloggers I link to above do a good job of arguing why peer review is not an unalloyed good and student-run editorial boards are not all bad. Some even seem to argue that, for legal scholarship at least, forgoing peer review might on balance be better. And I’m sure there are non-legal academics who believe that publishing in non-peer-reviewed law journals is on a par with publishing with a vanity press.
I find it difficult to get excited about either of those arguments. No one alive today is responsible for the current law review system, and I’m confident no one today asked to set up a system ex nihilo for publishing legal scholarship would pick law students to select the articles. But to paraphrase Donald Rumsfeld, you publish scholarship with the journals you have, not the journals you might want or wish to have at a later time. Launching a peer-reviewed competitor to the top general-interest law reviews would be an enormously difficult task. It would require launching a new journal that somehow possessed the cachet of the Harvard Law Review or Yale Law Journal — or perhaps would be even more prestigious, because this new journal would need to get authors to submit their articles to it exclusively, and not roll the dice of submitting to the top 20 simultaneously. It’s hard to imagine how a new journal would accomplish this. Perhaps a law journal personally edited by Supreme Court justices.
2. Law Reviews as Status Guardians. There are around 200 general-interest law reviews just in the United States alone, plus another 750 or so specialty journals. Everything can get published somewhere, even the doctrinal scholarship that apparently Chief Justice Roberts wants to see and Judge Dennis Jacobs actually cites. The only question is where.
I suspect a substantial amount of criticism is not about what law reviews do not publish; it’s about what the top law reviews do publish. That is, it’s about status. The top law reviews (however defined) dilute the prestige of X every time they publish something that is not-X, even if they continue to publish some X. Pointing out that plenty of articles address topics of current relevance to practitioners and judges thus misses the point of such criticism; the point is that law reviews shouldn’t be publishing anything that is not of current relevance to practitioners and judges. As Orin Kerr observes, the debate may really be about which audience law reviews should serve, rather than one about whether law reviews are serving their audience well.
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