What if faculty members published their articles exclusively in their “home” journals? That would eliminate the focus on the “placement” of a piece, hopefully with increased attention to actual content as a result, and motivate both students and faculty to do more high quality work, I’d suspect. Bias against scholarly subject areas would be reduced, and generalized bias against faculty at lower tier law schools would no longer affect the “sorting function” that placements have on junior faculty writers. Law faculties that produced good, relevant scholarship would see their home journals get numerous citations. Law faculties that did not woudl see the impact of their home journals and the reputation of their law schools suffer, and deservedly so.

And what if, as is the case at at Yale Law School (or so I understand it), any student who wants to could work on the in-house journals? Laboring hard and well enough for appointment to the Editorial Board would motivate participants to do good work, and good editors would not be excluded from journal participation due to their grades.  Publishing a note or comment would become a possibility for the entire student body, rather than just those who excelled on exams thier first year, making the process more competitive, which could lead to better student scholarship. Earning a spot on the Editorial Board would be just as prestigious as it is now, or perhaps even more so. If students didn’t do good work, they would face real and immediate consequences in terms of a bad grade (if law review work constituted a “course”) and the face to face ire of their professors. Students that put forth superior efforts could enjoy enthusiastic references from faculty members who might not otherwise have recognized their talent and potential.

A little half-baked, perhaps, but ideas to ponder, anyway.

18 Thoughts to “Some Musings About Possible Ways To Improve Law Reviews And Law Schools Simultaneously”

  1. Frank

    I think these are fascinating ideas.

    As for publishing in home journals: to me the chief thing this takes care of is it powerfully reminds the law journal audience that the primary function of law review editors is editing and cite-checking–not choosing the cutting edge of legal scholarship. Articles could then stand and fall on their own merits. Also, anecdotally, I have a sense that at at least one of the major journals, work from their own faculty has gotten quite a bit of preferment–automatic full review by the articles committee, and a mandatory personal meeting between EIC and faculty member if the faculty member’s work is turned down. If this sort of preferment process became transparent/customary, then at least people would be more willing to assess actual article quality rather than the faulty (if occasionally valuable) heuristic of “top placement.”

    As for the second, I like the idea. Let the work be spread among as many will take it. It will make the law review a bit more like a law firm, but that will be good training for success in a complex organization.

  2. Mark McKenna

    Ann –

    Interesting ideas, but are we sure that having faculty publish in their own journals would lead to evaluation of scholarship on its merits? I’m not so sure. One might say of the current law review system (which surely has its flaws) that it actually helps level the playing field. Publishing in the Harvard Law Review is a way to get attention as a scholar even if you’re not at Harvard. I’m not suggesting that placing in the Harvard Law Review is purely a function of merit. But I know its regarded as an indicator of merit (even if a rough one), and publishing in a top journal can get a scholar attention even when (s)he is at a lower ranked school. If Harvard Law Review is filled only with pieces from Harvard faculty, doesn’t that just reinforce the original sorting done by the entry level market? Maybe I just have less confidence that people would really read journals from lower ranked schools and do so impartially.

  3. Ann Bartow

    I think in the long run, if only Harvard faculty were publishing in the Harvard Law Review, the masthead would have less meaning. Top schools who were looking for “new talent” would still search the lower tier faculties, but they’d have to use a measure other than placement for a “quality of scholarship” proxy, and really, could things get any worse than they are now? Law students relying on the trademark value of the author and author’s emplying institution would no long be the arbiters of worth. Surely that would be an improvement.

  4. Ann Bartow

    Consider that Yale doesn’t even really have many IP people, so no one would cite the Yale LJ on IP issues very much. Those citations would be reaped by schools with productive and plentiful IP scholars. Superstars will still be recruited based on their work, and doubtlessly measures of quality will be imperfect, but surely something like citations make more sense than pure masthead. Measures of a law school’s “faculty quality” would be easier to make, if all the faculty scholarship was in one place. Ten years ago that would have meant embarassment for South Carolina, but we have a great junior faculty now. Hvaing all their publications in our law review would make us look great, which of course we are.

  5. Howard Wasserman

    # 1 is very interesting, although I agree with Mark’s points. Two additional thoughts:

    1) Can any journal possibly publish everything its faculty members write in the course of a year? If not, won’t the journals have to make selection decisions? Does that get moved to the faculty members and away from the students?

    2) We could get to something like Ann’s proposal, depending on the direction that SSRN takes in the coming years. Because we already have something like this in the SSRN Paper Series that most schools circulate–journals “published” by that faculty with recent works by its faculty members. Now, many of these are drafts and articles to be published elsewhere. But it reflects the germ of what Ann is talking about.

  6. Schoosl with large productive faculties could publish more issues. Schools with “centers” and “institutes” could publish specialty journals, as appropriate.

    Junior folks at top schools writing in less hot areas would no longer have to worry about looking as if they are “underperforming” if they don’t get top placements, and junior folks at lower tier schools would have one less thing to worry about, at least. Moving up would still require good work, but not require as much serendipty or “connections” or game playing on the placement score, anyway.

  7. Deven

    Counterpoint or recasting: Are research series on SSRN essentially what Ann is describing but in a different context? In other words, I have my concerns that all publishing at one’s school would ossify the academy. Nonetheless, if the brand is diminished because of custom or because the electronic system becomes a better way for people to find the work, perhaps Ann’s idea would work. One publishes like mad and relies on peers to obtain feedback (today that is the process, no?) Then the journals may or may not reflect qulaity of work but one publishes. In in the interim one could publish online (many do) and the work is findable and citable although inclusion in a journal allows for longer term ability to be read and cited because of Westlaw and Lexis.

  8. Howard, I think the point you mentioned is critical. FSU, for example, has at least 10 faculty producing at least 2 substantive articles a year, and almost everyone is writing at least one real and decent article per year. It is already a tremendous effort at a relatively small law school (each year’s class at FSU is about 200 students or fewer) to bring out 4 or 5 issues with two articles or so per issue. (Compare YLJ and HLR, which last year had between 12-15 articles over 6-8 issues.) Ann’s response–just have more issues–is a non-starter where the faculty produces at least 30 pieces a year. Klick alone would eat up a few issues!

  9. Deven

    Dan

    What about the electronic question? That seems to address the number of issues question. In addition, if law professors were more responsible for their cites (as we required on Yale Journal of Law & the Humanities and most other academic disciplines do so too), the strain on students would go down. Of course the law review experience may diminish but finding more cite checkers to increase law review is possible. Now I am not sure what would happen to specialty journals.

  10. Thanks, Dan, but almost all of my work goes in refereed journals as it is. Though I recognize peer-review isn’t a perfect system, it would mitigate a number of problems (mentioned here as well as others), no?

    Still don’t think I’ve heard a good argument for why law school folks, virtually alone in the academy, can’t spend time refereeing like everyone else on campus (I’m sitting on 4 reports [2 econ, 1 l&e, 1 sociology] to be submitted as we speak). If the worry is that peer review enforces too much inertia in scholarship, isn’t that offset now by the wide availability of working papers?

  11. Deven

    Howard

    Sorry I missed that you brought up the SSRN idea already but I agree.

  12. Geoffrey Rapp

    Great thought experiment! On the plus side, this would reveal that some schools which rate (relatively) highly on “academic reputation” don’t really produce that much high quality work. Academic “reputation” sometimes seems far more closely linked to things like overall university prestige and trips to the final four than to the actual work being produced by scholars at a school.

    On the down side, however, this would undercut a way that faculty members have at less “prestigious” schools to get their work noticed. Placement is a silly proxy for the quality of a scholarly work, but at the same time, when faculty members at less well known schools “place highly” their work gets noticed. Presuming that good scholarship will rise to the top without the ‘placement effect’ may be overly optimistic.

    The other potential downside — maybe not all of the things we do to make scholarship palatable to student editors and secure higher placement are all bad. Maybe guaranteed (or near-guaranteed) publication in home journals (given the lack of competition, since no one else could submit piece?) would lead some faculty members to submit sloppy, poorly thought out work. Sure, that work gets published now, but it suffers a “placement penalty”. I would add that maybe legal scholars have a responsibility to write work that has _some_ application (or at least accessibility) to judges and members of the bar. Perhaps student editors serve as a good proxy for an audience many in legal academia would prefer to ignore.

    One final possible downside — what would happen to job candidates? Where would they publish? If practicing lawyers couldn’t place pieces, would faculty recruiting go back to the old days where law school / undergrad prestige was all that mattered, and performance could not be measured? Would this create a further incentive for would-be law profs to sign on to fellowships at “prestige” schools (for journal publication benefits), even if those fellowships might not be the best use of a year?

  13. Howard Wasserman

    Even if on-line publication answers the volume question, is there any selection criteria, what is it, and who decides? Does anything that a member of the faculty writes automatically get published? Right now, everything a member of a faculty writes is eligible for (and encouraged to go in) the “Name Law School” Legal Studies Research Series. Is that also what will happen with “Name” Law Review?

    And if publishing becomes that automatic, what does that do to the respect for legal scholarship as an academic discipline, which already is looked down upon by other fields because of the student-run, non-peer-reveiwed nature of journals.

  14. Nancy Rapoport

    Ann’s idea is especially intriguing because it eliminates some of the snob factor issues about where one has published (see also Al Brophy’s post on this, at http://madisonian.net/2008/04/08/a-focus-on-quality-of-scholarship-rather-than-placement/). Would the students be able to keep up with the pace of writing on the faculty? It’s hard to say–I could see a real difficulty where the student body is relatively small and the output by the faculty is high. What would happen if the scholarly output by the faculty were published in one of two types of journals: a peer-reviewed journal, run by the faculty itself, and a law-student-run journal, run by the students? I’m not sure how this type of bifurcated publication opportunity would play out, but I’m so intrigued by Ann’s idea that I want to mull it over a bit more.

  15. One other thing to contemplate, if this idea were taken seriously, is the transition costs. Students at certain journals, particularly the top ones, might be upset to lose their gatekeeping role; it could be taken away by administrative fiat at most places, but actually Harvard Law Review is an independent and separate organization that I believe is not at all dependent on Elena’s graces. (Bluebook royalties are empowering!) So if you couldn’t solve the collective action problem on the side of the students, you’ll also face some opposition by those prawfs who while not at fancy law schools are able to write for fancy law reviews every now and then. And since those scholars are the ones who often wield clout at many law schools, it’s unlikely the collective action problem of the faculty will be solved. So, my sense is that it’s an interesting thought experiment with mixed results in theory and virtually no practical shot at being implemented for the reasons I’ve mentioned here and earlier.

  16. So a system in which law students who generally do not have much detailed analytical sophistication in scholarly subject areas have a powerful role in “gatekeeping” which law professors succeed or fail in the profession should be preserved for the benefit of the people who like it that way? Phooey.

    Also, the smaller schools with productive faculties can increase the number of students working on their law journals, and hire some “professionals” as editors. Most law schools have very bright fairly recent graduates who would love part time editing work they could do out of their homes as they raised their children.

  17. Ann, to be clear, I wasn’t uncritically endorsing the gate-keeping function some students have, just pointing out that it may be difficult to dislodge them from fulfilling that function.

    And even if you can get smaller productive schools to expand the issues, the pragmatic point is that productive prawfs with clout and high placement records (or those who aspire to join them) will oppose the switch. I’m not saying the normative vision is inherently bad; I’m saying it’s likely to be outside the feasible choice set.

  18. Open a professional journal on bridge engineering, on gynecological cancer surgery. The articles have been selected, criticized and revised by engineering or med students. At school, they spend 80 hours a week memorizing a language they have never heard. They have had hours of experience designing or examining patients. In their spare time, they edit professional journals.

    This contrasts with law students. They have never even written a demand letter in anger. They have never suffered. They cannot even relate to the troubled parties mocked in the articles.

    That sound OK to you?

    That Dean at Harvard Law, the Devil, what’s his name? He came up with the idea. “Why not get the students to do this work? I can spend more time with my good friend, Johnny Walker.”

    Student run law reviews. Brilliant idea from the mind of an alcoholic.

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