The Washington Beacon has published an absolutely jaw-dropping piece about the Harvard Law Review’s article selection process, which allegedly gives substantial consideration not just to the assumed identity (race, gender, sexual orientation) of the author, but to the assumed identity of the authors of sources cited. (Who knew that I should have been indicating in every citation the race, gender, and orientation of the author?)
I haven’t bothered submitting to HLR for some time, but if the allegations are true, it still leaves me dismayed that I have had my time wasted as an author and furious that I have had my time wasted doing outside reviews. Don’t ask me to do free reviews when it’s just for show. I’m just waiting for the class action…
It’s easy to dismiss the HLR fiasco as an example of woke gone wild, and that’s undoubtedly part of the problem, but the more fundamental problem is that student editors should have no business selecting articles. Indeed, as I will argue below, law reviews are a medium that has served its purpose and they should shut down—there’s a much better way to disseminate legal scholarship: connecting authors directly to legal research databases (direct-to-database publishing).
The Problems with Student-Edited Law Reviews
The criticisms of student edited law reviews are well-known: in what sane world would second year law students sit in judgment of the quality and originality and importance of scholarship, including on topics about which they have not even taken courses? The students, no matter how bright and hard-working, just do not have the expertise to evaluate the scholarship.
What’s worse, student-editing distorts legal scholarship: we have to work around a biannual article shopping cycle (Shrovetide and Hlamas), and we have to write for an audience of 2Ls. That means we are inclined to pick topics that will resonate with them, which favors big policy debates, rather than important technical issues. We are incentivized to overclaim to make our work sexy. We end up spending too much time explaining and citing for basic concepts, including sections that explain why our work is important, etc. The incentive, especially pre-tenure, is to optimize around over-selling crap to 2Ls. That’s nuts.
Peer-Review Is Poorly Suited for Legal Scholarship
But let’s not kid ourselves into thinking that peer review is a panacea. Peer review is a good mechanism for double checking on methodological issues, like whether an empirical study has the proper controls. It works well when there is a common methodology for an entire field, say, economics. But peer review is not reliable for substantive knowledge issues: a peer reviewer might or might not have the relevant substantive knowledge to evaluate an article. For example, an economist might be able to give a good review of the methodology of the OLS analysis in a paper on bankruptcy claims trading, but the economist (and frankly many law professors) would likely lack the bankruptcy knowledge to realize that most trades in bankruptcy claims are not visible in the claims register, and would thus miss the enormous selection bias problem with a paper that relies on an analysis of trades for which a Rule 3001(e) filing was made.
The even bigger problem with peer review, however, is that it is utterly unsuited for normative scholarship, and a lot of legal scholarship is normative. A originalist reviewer probably isn’t going to like a non-originalist con law analysis, no matter its quality. A pro-choice scholar probably isn’t going to like a work arguing against abortion, regardless of quality. And so on. I’ve seen this first-hand. I submitted my first article to the Antitrust Law Journal almost 20 years ago. One reviewer liked the piece. The other denied that there could possibly be antitrust problems in two-sided markets. iirc, I got a revise and resubmit. In this instance, I told the journal to kiss off and fortunately the students at UCLA didn’t have normative priors that affected their review: payment card antitrust was not something most students would have a view on, making them actually a better screen than professionals who might have a dog in the hunt, even if indirectly. (I note that a PLOS One model of only reviewing for methodology avoids the normative evaluation problem, but that doesn’t work in a field without a methodology…)
What’s the Purpose of Law Reviews?
So where does that leave us? I think we should go back to first principles. What is the purpose of a law review? Law reviews originally began as a method of disseminating legal scholarship. 125 years ago or so, if you wanted to research scholarship on an issue, you had to go through lots of separate print volumes of law reviews. The knowledge went from the author to the reader through the law review (A—>LR—>R). That’s not how it works today. I do not know anyone who reads an actual print general law review. Readers consume articles electronically, generally through databases like Lexis, Westlaw, Hein, and SSRN, that compile law review articles. So knowledge goes from Author to the Law Review to the Database to the Reader (A—>LR—>D—>R). With this structure, one has to ask what value the law review is providing in the process.
As I see it, the law review performs two services in the scholarship process. The first is a vetting service. While the law review’s publication might not mean that the article is any good, it probably screens out the really crazy stuff. Second is an editing service. That’s hit-or-miss, however. I’ve had a few law review editors (I’m looking at you, Dan Hemel) really improve my pieces substantively. But generally, edits have either been minor stylistic improvements, added (and unnecessary) citations, or even stylistic debasements. All in all, I can’t say that my articles have really improved from the editing process, and the improvement certainly hasn’t been worth the effort put in by me and the editors. All of this is to say, law reviews are not adding very much value to the production of legal scholarship.
To be sure, law review also provides an educational service, in that it exposes a subset of students to legal scholarship, and helps them become better at the critical skill of Bluebooking. And it’s a credential that enables greater differentiation of students for clerkship hiring than 1L grades alone. So, basically, law reviews add little value to scholarship and education, but provide a slightly helpful marker for judges who are overwhelmed by the volume of clerkship applications.
Get Rid of the Law Reviews
Accordingly, here’s my modest proposal: let’s cut out the middle man and get rid of law reviews. Legal scholarship should just be published direct-to-database. Authors would submit directly to databases. (A—>D—>R).
Here’s how it could work: Each law school should contract directly with the relevant scholarship databases to publish its faculty’s work. For example, Georgetown Law could contract with Lexis and Westlaw to have the “Georgetown Law Review” that would consist of articles written by Georgetown Law faculty. Georgetown would have its own internal vetting process (that could be as little as “we trust our faculty” or involve an actual review process of sorts). Georgetown could also have its own editing process (either by students or by staff). Either way, the school would do the gatekeeping function. Articles would go up to the database on a rolling basis and would have a citation of vol. Geo. L. Rev. pin (year). But the article would never appear in print unless a faculty member wanted to pay for a vanity offprint. Schools would be the guarantors of their own faculty’s scholarship quality.
We already have something very close to this: SSRN. Lots of working papers get published to SSRN. What I envision is basically the same thing, but with the working papers also going into Lexis, Westlaw, and Hein, and with a more standardized citation format. How much, if any vetting and editing would be up to the particular school, but being a faculty member (including a VAP or fellow) should be vetting enough, and hopefully we can all write good.
Now there is a small amount of legal scholarship published by people not on faculties. I can imagine a small number of traditional law reviews, generally speciality journals existing for their work, but I’m looking for a solution for the 99%, not the 1% here, and I think direct-to-database does the trick of getting scholarship disseminated without the insanity of student article selection and editing or the inappropriateness of peer-review for a frequently normative field.
