…Because things are not so bad the way they are…(on the law review front)

Perhaps appropriately on the last day of this fascinating stream of mobbloging, I thought I would try and offer a partial defense of the-way-things-are-right now on the law review front:

  1. Don’t romanticize the alternative: When one begins to publish in the peer-reviewed world, the whole romantic notion of blind review becomes somewhat tainted — in all of the fields i am familiar with — psychology, economics, business, political sci, history and sociology reviews (and also in the fields i am less familiar with, according to my hard scientist friends) there is still A LOT of noise in the system: because of conferences, networks, ssrn and the like, it is VERY easy to figure out for reviewers who the authors are; there is a lot of tit-for-tat — same folks publishing and editing in the A-journals in their fields. To think that a top name (the Cass Sunstein equivalent in any one of those fields) does not impact the decision of her peers is naïve. And even more so because the double blindness from the author’s side is also often tainted — at times, people can guess pretty easily (or hear about it in the process) who the reviewers are. At least with law review editors, the repeat players problem (which of course has many strengths as well in terms of expertise and knowledge about the field and quality of scholarship).
  2. There are in fact quite a bit of law or law related peer-reviewed journal so we are already live in a world of choice and a world of competition.
  3. Law reviews themselves do consult quite frequently it seems with faculty advisors on accepting pieces. It is also my understanding that some of the top law reviews, like the Harvard Law Review, do really have blind review process, and their process is a multi-layered, multi-tiered serious on.
  4. The law review kids actually offer a lot of good editing after the article has been accepted, often better, and most of the time involving more eyeballs, than those of peer-reviewed journals.
  5. I suspect us law professors, like other faculty, would not like Ann’s suggestion to take away the prestige, the wins and losses of the game, of sending out one’s article to journals outside one’s own institution. Our work is intangible enough to not want to give away some passing rewards and signals of success however noisy they are. This is similar to suggesting that we do away with rankings – we should keep rankings, just make them far more meaningful. Remember, type A people strive on competition.
  6. There is something really cool about the speed and timeliness in which law reviews make decisions and then publish articles. Peer-review articles often take years upon years to come out, the review process may mean that things are not relevant by the time the article sees the light of day.
  7. There is also something cool about law review editors having some productive ignorance. Its ok if they sometimes get things “wrong” – its part of what shakes things up, puts some off ideas on the frontlines and disrupts some of the inner-breeding and self-referential work that at times stales the legal academy.

Bottom-line, the baby water and the baby have some advantages.

Institutes of Excellence and the Global, Departmentalized Law School

Thanks to Deven all of us are thinking this week about an issue that we should indeed always be reflecting upon: realities and ideals of law schools. A law school is a multitude of things and has different meanings and consequences for different people. Law schools are workplaces, learning centers, research institutes, communities, and sometimes also advocacy forums and even for-profit businesses. Even if one thinks, as I probably would argue, that as an institution at-large, law schools should usually not be run simply as for-profit competitive businesses nor they should have particular political missions (perhaps though differentiating between the institution as a whole and particular research institutes within it), competition (in all its senses) and mission are part of the game. I think that the best that one can hope for in an institution that inevitably has internal inconsistencies, idiosyncrasies, and at times conflicting goals is a general strive for good faith excellence. Not the kind that is driven by rankings, but the kind that is driven by a group of people interested in getting “it” right, experimenting with various models, reflecting on the various goals and measures of success, and striving for constant improvement.

One thing that I have been concerned about, partly as someone who studies institutional change and organizational theory; partly because I took the non-traditional route to law teach, coming from abroad and getting an LLM and SJD before going on the U.S. teaching market; and partly as someone who teaches in a respected, but non-elite law school, is the possibility of change in an enviornmnet that is highly resistant to real competition and change. Law schools today, in form and to a large extent in substance, look very similar to what they looked like many decades ago. Change is tremendously slow and movements in the rankings between top 10 law schools and others is almost non-existent. There are many reasons for this and I will not touch on all or even most of these reasons, but let me put forth a thought exercise about how things could look a bit different. First, I have been a strong advocate of PhD programs in law. In fact, I believe that in order for law schools to be truly interdisciplinary they must stand on equal grounds to other disciplines and train academics in similar ways to other departments. This would have several positive ripple effects: it would require the legal academy to seriously consider, and constantly reconsider, what it means to get a solid scholarly legal education. It would require us to pose the question internally, not more in a passive reactive way as consumers of other signals across the campus: what are the different forms of legal scholarship and what is the type of training that is useful for them. It would also institutionalize the informal process of mentoring the next generation.

In the hard sciences, not only is a PhD required, but also, a lengthy post-doc is expected before people begin their tenure-track. The model that seems to most fit the bill for law schools however is that of the business school. Business schools are, like law school, professional and interdisciplinary. MBA students are trained to practice business administration in various capacities and sectors of the economy. At the same time, business school professors are expected to produce serious scholarship, published in peer-reviewed journals. And while business schools are interdisciplinary and embody various methodologies and approaches from economics, psychology, accounting, sociology, organizational theory and engineering, they themselves grant PhD degrees and train the majority of their future generation of academics. This leads to more intense and dynamic competition among the various schools, as each school has its own strengths in some departments and capacities and weaknesses in others. It also differentiates between how good a job a law school is capable of doing in training and placing future businesspeople in the industry and how it mentors new scholars. The two are not the same and to think that all of these aspects can be capture in one ranking system is absurd. Finally, the business school model also offers some insight on how a two-track system, professional (MBA or JD) and academic (PhD), contributes to the internationalization and globalization of education. Instead of having the two-tiered tracks of “American” (JD) and “foreign” (LLM/SJD) as in law school, the professional/academic system integrates American and non-American students at all levels of the institution.

I welcome your thoughts, there is a lot to be worked out, I know, but at the very least this can provide a thought experiment as to what we value in the strive for better institutions. More to come…