In Defense of Law Reviews
posted by Daniel Solove
Criticizing law reviews has been in fashion for quite a while, and in the New York Times there’s a new article with a similar refrain of attacks on law reviews. In essence, the criticisms boil down to: (1) law reviews should be peer review and articles not selected by law students; (2) many law review articles aren’t cited; (3) practitioners don’t read law review articles. We’ve heard all these before, and I’m growing very tired of these stale arguments.
Although law reviews are on odd system for publishing, I think that the model is actually not as crazy as it might seem.
1. Is the grass really greener with peer review?
For all their imperfections, students do a fairly decent job. I don’t think that articles in other academic disciplines in the social sciences are any less obscure or are cited more. Peer review is filled with cronyism and with way too much “I don’t like this article because I disagree with it” or “I don’t like this article because I’m not cited enough.”
Although law review editors can get bogged down in silly footnote citation formalities, for the most part, I’ve been pleased with my editing and have received some really excellent editing that has sometimes been more extensive than the editing I’ve received when publishing with academic book publishers.
2. Do we really want to bother with peer review? Is it still needed in today’s age where there’s no longer a scarcity in publishing opportunities?
Peer review is a “front end” evaluation (prior to publication). It is designed to determine which scholarship is worthy of publication. That made sense when there was a scarcity of publishing opportunities. We wanted good scholarship to be published because being published was something not anyone could do, and it distributed and publicized scholarship.
Today, there isn’t a scarcity of publishing opportunities. Anyone can publish. Most articles make it on Westlaw. Hardly anyone reads the print journals anymore.
Peer review can readily occur on the “back end,” with professors evaluating articles post-publication.
Of course, professors will use law review placement as a proxy rather than read the article and decide its merits for themselves. But this is laziness that professors should blame themselves for. If we want to make things more fair, then professors can be more fair in how they evaluate scholarship and stop using law review placement as a proxy if it isn’t a good proxy.
One reason why professors use law review placement as a proxy is that despite a number of misplaced articles, law review placement isn’t completely random. It’s not a perfect proxy, but for the most part, the top law reviews publish more articles I that I find to be of quality than lower ranked ones. Not always, but I don’t need a perfect proxy in today’s age where it is so easy to search for and find scholarship. It’s a kind of weak proxy that can sometimes be helpful, but it shouldn’t replace making one’s own evaluation.
In the end, if we don’t think law reviews do a good job evaluating scholarship, nothing is stopping us from reading it and deciding for ourselves!
3. Should we be alarmed that so few articles are cited?
As far as articles not being cited that much, most things written and produced are not that good and are forgettable. Think of how many books were written and then think of the great books. The ones that have endured are only a very tiny fraction of the ones published. It takes a ton of rather lackluster stuff to produce diamonds. The process is anything but efficient, but good scholarly ideas aren’t something that can be produced on the assembly line.
Most peer reviewed articles also aren’t that great either. Historically, very little that was created — whether it be art, literature, scholarship, etc. — has endured.
4. Should we respond to the gripes of practitioners?
Many practitioners love to dismiss all law review articles, and they can readily point to many that aren’t really written to help practitioners with their research. There are plenty of pieces of great use to practitioners, and these pieces can be found with not too much effort. But some lawyers and judges think who want to justify their general lack of desire to read any kind of scholarship at all will readily be glib and dismissive and just write off all law review articles.
Some lawyers and judges think that that law professors are supposed to write for them. Since when is it the job of a law professor to do free research for law firm attorneys or judges? Many law review articles aren’t written for practitioners — they are written for other law professors. Not all law review articles must be about advocating legal change. Some articles might elucidate the law and make it more understandable. They might critique the law. They might explain judicial behavior. They might provide a history of the law. Law professors need not be reform advocates.
Moreover, I have read many a judicial opinion that I know has relied heavily upon a law review article without citing it. So the statistics about law review articles not being cited doesn’t mean that they lack influence. They might not be cited because judges just don’t like giving a citation to them. In many cases, the judge might not have read and relied upon them, but the law clerks might have.
The NYT article also notes how the Supreme Court is citing to fewer law review articles, but this might be because the Court is less creative from a jurisprudential perspective than it used to be. Many recent Supreme Court opinions have been somewhat workmanlike. I often have to look back to older opinions to find something interesting going on.
5. Are law review articles too obscure?
The NYT article quotes Chief Justice John G. Roberts Jr. who is an outspoken critic of law reviews. Chief Justice Roberts said: “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.”
I find the Chief’s comments to be far too dismissive. . There are many articles irrelevant to the cases he decides, but also many articles of relevance that he doesn’t bother reading as well. The selection of cases by SCOTUS is hardly immune to the criticism that the topics of most opinions are somewhat obscure, with many of the most pressing issues and ambiguities in law being unresolved by SCOTUS. Before criticizing law professors’ choice of topics and work output, maybe he should look inward at SCOTUS’s.