A Dispositive Defense of Student Law Reviews
posted by Dave Hoffman
There is no way that this would happen in a student journal. Delays? Sure. Bad edits? Absolutely. But this nonsense and collusion? I think not. Only non-lawyers would put up with this.
How to Publish a Scientific Comment in 1 2 3 Easy Steps
(H/T: Leiter.)
September 5, 2009 at 7:01 pm
Posted in: Articles and Books, Law School (Law Reviews), Law School (Scholarship)
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Responses (12)
A.J. Sutter - September 5, 2009 at 9:13 pm
One practitioner’s POV: You may be right, but some calibration seems appropriate. (1) In my transactional practice, I’ve found many articles published in scientific journals (Science, Nature, JACS, PNAS, etc.) to be helpful. Ditto for practitioner-edited law journals (e.g. ABA, CA State Bar, etc.). I can’t say the same about a single article in a student-edited law journal. (2) I have on occasion discovered glaring fallacies, inappropriate claims of originality, etc. in top-tier law review articles written by law professors. Despite detailing the issues in comments of several pages’ length that I’ve sent, as a courtesy, to the authors of the papers in question, I have never receieved so much as a “get lost!” in reply from any such author.
Jeff Lipshaw - September 6, 2009 at 2:57 am
This was, of course, the kind of thing that led people like Thomas Kuhn and Paul Feyerabend to conclude that science was less about truth and more about the paradigm and the community of scientists.
Logically the only way this is a defense of student-edited law reviews is that we suppose the students are blissfully ignorant of this kind of academic in-fighting, and therefore offer a clear and unbiased route to the exposure of “truth” in the law reviews. If that’s so, SSRN or BEPress as a medium is even more blissfully ignorant, and doesn’t use a C.V. as a heuristic for determining whether the piece is a contribution to the literature. In short, we have our own issues of the paradigm and the community of scientists – it just takes another form.
Mike - September 6, 2009 at 10:11 am
It’s interesting that, in the abstract, many people recognize the biases inherent in science. Yet anyone who wonders that such biases might be affecting climate change/global arming research is considered a philistine.
Jack - September 6, 2009 at 10:41 am
I call BS. Without citations, giving readers the ability to evaluate this for themselves, the physicist’s tale is just a shaggy dog story.
Anon - September 6, 2009 at 11:28 am
Jack – check out Trebino’s webpage – the details (including the comment and the references) are there.
Vladimir - September 6, 2009 at 12:41 pm
Oh, Dave! This is awesome. And you know what? You’ve persuaded me of the superiority of student edited law reviews (and I never though I’d come around!) So what if crap gets published, even in the Yale Law Journal. A critic can just debunk it the following year, in another journal. It’s better to have too much stuff, some of dubious quality, than to have important stuff suppressed by the reigning paradigm.
We idealize peer review, but really it is parochialism. and given the way academics (and all people, really) are, there’s no way to eliminate turf protecting and ego from any process. So the let 1000 flowers bloom approach of a plethora of law reviews makes good sense.
Dave Hoffman - September 6, 2009 at 12:50 pm
Vladimir,
I can’t tell if you are being sarcastic. So…thanks?
I do think that turf protection (or, more accurately, turf promotion) happens in the law journals — professors place in house, etc. But I don’t think that students would be able to create or maintain this kind of bureaucratic maze. There are too many alternative places to publish, and the students are (in the end) just not that invested. Plus, law professors would make noises about suing in well-drafted nasty letters.
A.J. Sutter - September 6, 2009 at 11:40 pm
Dave, what’s your take on this hypo: an attorney in solo practice or in-house reads a paper in an Ivy League law journal wherein the 30-something-y.o. law professor authors claim several times to be the first to formulate a certain strategy about how firms should obtain patents. The attorney in question knows that this exact strategy, for that exact rationale (or a better one), has been used in industry for decades. What odds of publication of a comment in a student-edited law review with comparable audience to the original article?
I agree with Jeff’s point that SSRN, not student-edited law reviews, is the least-biased recourse. BTW, there’s a similar database available in math and physics (albeit not engineering, chemistry or some other scientific fields): arxiv.org. In fact, Grigory Perelman got the 2006 Fields Medal (the closest thing to a Nobel Prize in mathematics) for a proof that was published only on the arXiv.
dave hoffman - September 7, 2009 at 6:45 am
I’d think that the chances were relatively high, especially in the response were written relatively well. Have you tried, and failed, to pursue that avenue (assuming that’s you?)
A.J. Sutter - September 7, 2009 at 8:06 pm
Thanks for your question. Yes, that was me, a couple of years ago. I didn’t try, for a couple of reasons: (i) The material was inherently difficult to footnote, i.e. to frame in typical “scholarly” style, since it was based on work experience and knowledge about corporate practices. (ii) My comment would have amounted to more like a ‘letter to the editor’, which I’d never seen such a journal publish. (iii) I was by that time already in solo practice, no longer at a big firm or big company. From reading on this blog about academics’ travails of getting published, I figured that the likelihood of an ostensible zhlub like me getting an unusual-format piece published in the same journal or one with a comparable readership was negligible or less.
Around that time, I also found a very flawed paper by one of the co-authors of the first one, in another Ivy League journal, purporting to show “mathematically” how copyright law increases the scope of the public domain. My critique of that was necessarily more detailed than that of the patent-strategy article, and maybe more mathematical than one usually finds in student law reviews. (It had ‘e’, the base of natural logarithms, in it; maybe I also used some freshman calculus.) Plus, since it had been law student editors who’d given a green light to the original paper, I figured most editors wouldn’t have the math/science/engineering sensitivity to see the fallacy I was critiquing.
BTW, since neither of the authors of the two articles I took issue with had replied to my emails, I did worry I’d get into some of the Catch-22 stonewalling dilemmas Rick Trebino describes about replies to comments, etc. In the case of the second paper, I also didn’t see much benefit to my own reputation in posting a paper to SSRN that merely explained how one paper by a particular untentured law prof was wrong; at that time, it would have been my first paper on the database.
I might eventually find a use for the copyright-related material, since nowadays I can place it into a larger context related to the theme of a book I’m currently writing. But if I do wind up incorporating it into a short paper, I think SSRN will still be my best bet for getting it read.
Vladimir - September 8, 2009 at 8:56 pm
Sorry, Dave. I actually was being serious — just got a little too enthusiastic. I think, in the end, after weighing all the pros and cons, that the risk of too much slipping through the cracks is a better one to assume than the risk of stuff being excluded from publication for petty reasons, as your lovely example suggests happens more than we’d like to think.
Concurring Opinions » A Dispositive Defense of Student Law Reviews Reviews Robot - September 25, 2009 at 4:28 pm
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