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Debate Club
DEBATE CLUB 11/15/04

Are Law Reviews Really Rubbish?

Richard A. Posner and Randy Kozel debate.

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In the current issue of Legal Affairs, Judge Richard A. Posner excoriates law reviews for the topics they choose and for how their pieces are edited. The result of the current system, he writes, "is that too many articles are too long, too dull, and too heavily annotated, and that many interdisciplinary articles are published that have no merit at all."

Are law reviews really so flawed?

Richard A. Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School. Randy Kozel is a law clerk and a former articles committee chair of the Harvard Law Review.

Kozel: 11/15/04, 09:00 AM
I have two general responses to your article. First, I don't think things are quite so bad at student-edited journals. Second, with respect to the problems that do exist, I'm not sure that student editing is the cause, or that faculty editing is the cure.

Of course, your article is not the first to paint a rather bleak picture of student editors. The Jim Lindgren article you cite is one of the more distressing entries, offering anecdotes about student editors abusing authors through threats, deceit, sexism—pretty much everything short of kicking authors' dogs (though perhaps some journals have taken to pooch-kicking in the years since the article was published). I really don't have much of a response to these anecdotes: I think it fairly likely that some student editors are knuckleheads. But I doubt very seriously that students have the knucklehead market cornered. I also suspect the number of anecdotes about excellent student editors is itself pretty high—I've certainly come across my fair share of careful, conscientious, and respectful editors during my law review days and more recently as an outside author.

What I found more interesting was your criticism of student journals' abilities to select and edit interdisciplinary pieces. I agree that student editors will sometimes lack the training to analyze, for instance, a sophisticated economic model or an elaborate data set. But the same holds true for faculty editors. Lack of economics training is not something one outgrows with age, so a rookie student editor and a distinguished constitutional law professor may well be equally illiterate in economics.

I suppose your response might be that faculty editors could farm out article submissions to experts for peer review. Student editors, though, can do the same thing. At my law review, we conducted our own time-intensive analysis of each article's arguments and contribution to the existing literature, but we also never accepted an article for publication without sending it for comment to a few scholars in the relevant field. It seems to me that encouraging this kind of student solicitation of peer review would alleviate many of the concerns expressed in your article. Why not promote this type of change instead of calling for the much more drastic step of handing over control of law reviews to faculty?

There's another issue I want to mention in hopes that we can talk about it this week. I worked on my law review's article selection committee, and I was left with the firm conviction that many problems with student journals stem from the article submission process. In short, the current system of simultaneous submissions puts pressure on student editors to make ill-informed, snap decisions about articles, to favor articles on topics they already have some familiarity with, and to give excessive consideration to proxies like the author's prominence, school, and prior publications. I'll talk more about this tomorrow, but I'm interested to hear your thoughts about the current article submission process and possible improvements.

Posner: 11/15/04, 12:47 PM
I agree that showing a submitted article to a faculty member for advice on whether to publish—a gesture in the direction of peer reviewing—is an excellent idea. My impression is that it is done rarely.

Yes, simultaneous submission places pressure on article editors. But it is the price the reviews pay to induce authors to run the hideous gauntlet of law review editing. If publication delays were as long for student-edited law reviews as they are for peer-reviewed journals (which forbid simultaneous submission), why would any author want to publish in a student-edited law review?

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Kozel: 11/16/04, 09:32 AM
I can think of plenty of reasons aside from simultaneous submissions why authors would want to publish with student-edited journals. Some authors enjoy student editing and think their pieces benefit from the considerable time and care students tend to devote to articles. Some are drawn to the readership and influence of many student journals. And some aren't aware of any faculty-edited reviews that seem appropriate for their articles. (Incidentally, I also doubt that most student journals retain their simultaneous submission processes to compete with faculty-edited journals; it seems to me that student reviews tend to perceive themselves as competing mainly with other student reviews.)

That brings me to a broader, and I suppose more theoretical, question I always encounter when reading criticisms of student journals. What is it, in your view, that prevents the emergence of faculty-edited alternatives to generalist student journals such as the Harvard Law Review and the Yale Law Journal? Obviously, there are strong faculty journals in certain fields, with the Journal of Legal Studies providing a good example. But I don't know of any faculty analogs to the most-cited general-topic student journals.

If what you suggest is true—if most authors are loath to subject themselves to the "hideous gauntlet of law review editing"—then we need some kind of story for why these faculty-edited alternatives haven't appeared. In your article, you reason that competitive pressures among student reviews are weak because the reviews are supported by the law schools, who use them as, among other things, signs of status. But this only explains the continued existence of student reviews as organizations; it doesn't explain why good authors continue to submit articles to the reviews, or why courts and commentators continue to read them. What barriers are keeping generalist faculty-edited reviews from relegating student law journals to embarrassing rags, read and cited only by those who don't know any better?

My theory is that, despite the occasional outcries, student editors do a pretty good job—at least good enough to keep faculty from incurring the costs of making a real and sustained effort to displace them.

Posner: 11/16/04, 01:11 PM
I would like some testimonials from authors who "enjoy student editing and think their pieces benefit from the considerable time and care students tend to devote to articles." So I'll offer one, in fact two: When Professor Landes and I many years ago published an article on antitrust in the Harvard Law Review, we received excellent suggestions from Louis Kaplow, then an articles editor of the Review and now a distinguished professor at Harvard Law School. And when years later my Holmes lectures were published in the Harvard Law Review, the editors made a number of very helpful suggestions. I am sure I have had other such experiences that I have forgotten. But on the whole I have obtained far more useful comments from referees of peer-reviewed journals, and the editors of such journals do not make the nit-picking corrections and awful stylistic changes that constitute the gauntlet that I referred to.

The other two of the plenitude of reasons that you believe explain why authors "would want to publish with student-edited journals"—the influence of the journals and the absence of other faculty-edited reviews appropriate for their work—are derivative of the question you ask in your second paragraph, which is a good one: Why haven't such reviews emerged? As you note, most that have emerged are specialized in one fashion or another; most in fact are specialized to economic analysis of law. That is no accident. The culture of academic economics is one of peer-reviewed journals.

I think the main reason generalist faculty-edited law reviews have not emerged is that the law schools are reluctant so subsidize additional journals that would incidentally compete with the student-run journals. The student-edited law reviews provide career benefits to the students, even if they do not, in my view, contribute nearly as much to scholarship as would peer-reviewed journals.

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Kozel: 11/17/04, 09:01 AM
I'm not sure it's enough to say that schools insulate student journals from faculty competition because student reviews provide career benefits to their editors. First, many of these career benefits arise simply from the sorting mechanism that reviews provide. "Making law review" is, along with getting good grades, a significant way for a law student to distinguish herself from her peers, so law reviews function as something akin to honor societies. (Whether making law review actually says anything useful about a student's potential as a lawyer is another debate altogether.)

I don't see why the emergence of faculty reviews would undermine this signaling function. If Harvard, for example, were to subsidize a faculty review that began siphoning off some of the best article submissions, the student-run Harvard Law Review would still have more than a thousand article submissions to choose from. Indeed, the student review would in all probability operate almost exactly the way it does today, and its honor society role would be unaffected.

Second, to the extent that the actual experience (as compared to status) of being a law review editor is tied to important career benefits, I think schools could retain those benefits even while subsidizing faculty journals. I'm sure that some judges, government agencies, law firms, and other employers favor applicants who were law review editors because of the editing experience these folks gained, and because of the determination they showed in devoting so much time to their law review duties. (Torturing authors is not a nine-to-five job.) But I don't think the experience of editing an outstanding article is perceived as meaningfully different from editing a good or mediocre article, and I thus doubt that the emergence of a generalist faculty review, even if it stole away some articles, would harm the career prospects of a school's student editors.

You note that it's "the law schools" who are reluctant to subsidize faculty journals, but I'm not sure exactly who you mean—which decision-makers are so worried about what I take to be a phantom reduction in students' career benefits?

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: 11/19/04, 07:08 AM

Kozel: 11/19/04, 07:09 AM
I'll wrap up simply by noting that, while I think criticisms of student reviews are oftentimes overstated, I'm nonetheless interested in proposals for incremental improvements. We agree, for instance, that it's a good idea for students to solicit faculty input on article submissions, something the time-compressed nature of the current article selection process discourages. Maybe the answer is moving toward exclusive submissions, or limiting the number of journals to which authors can submit simultaneously, or facilitating better communication between student editors and faculty. These kinds of issues—how student journals can improve their article selection processes, as well as their editing practices—are ripe for discussion, by students and commentators alike.

But that's another debate. To close the present one, I'll just reiterate that student editors perform an important function and, in my view, tend to do an admirable job.

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