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Thursday, May 04, 2006

Volokh on Law Reviews: The Problems With Membership as Signal

Rick's link below to Eugene's series of posts about law review write-ons motivates me to share my reaction to one of those pieces.  Eugene asks and answers the question, why would anyone want to be on a law review in the first place?  He gives several answers: "[l]aw review is a valuable credential on your resume"; it provides training in editing, proofreading, and source-checking; it provides an incentive to write and opportunity to publish; it offers a chance for collaborative work; and it exposes you to new ideas.

With many of Eugene's commenters, I think his first proffered reason is the most important: it is a credential for employers and judges.  Every other benefit on the list can be obtained without membership on law review.  Eugene suggests that law review membership makes it more likely that students will, for example, find an incentive to write, and that's true.  But it is possible to write, collaborate, and so on without law review membership, and it is also possible that law review membership will not lead to any of the other benefits Eugene discusses.  The credentialing function of law review membership is the tail wagging the rest of the dog here, and I think we all understand this.

I emphatically don't mean to accuse Eugene of inconsistency here, because I don't know his views about law reviews.  But I find it striking in that, in general, the legal academics on the blogosphere have often provided hints and tips about attaining law review membership, while also writing post after post about why the entire system of student-edited law reviews is problematic for legal scholarship. 

Striking, but not surprising.  The legal academy, like the rest of the profession, is ostensibly reformist in orientation but actually highly conservative, especially when it comes to maintaining those status markers that have served them so well.  Criticizing student-edited law reviews while advising students how to win membership on them is about on a par with being a system-smashing CLS scholar who insists on teaching at a top law school, and who feeds elite law students into elite law firms while urging them to strike a revolutionary blow by refusing to laugh at the partners' jokes.  In other words, it is par for the course in the legal academy.  Thus, no matter how riddled with problems the law review system may be, membership is a credential, and one we are seemingly unwilling to disturb.  I think we should. 

[more after the jump]

I write in large measure from my perspective as a Canadian law school graduate.  Most law reviews there are faculty-run, with some student assistance.  Others involve more substantial student membership, and my own former journal, the University of Toronto Faculty of Law Review, of which I was co-editor-in-chief, runs only student pieces (of high quality and from students across the country) and is completely student-run and -edited.  But law review membership, at Toronto at least, was entirely voluntary, with no write-on required.  And it was a minor credential in the eyes of employers and judges.

Now, Canadian and American law firms are not that different.  If they independently valued things like proofreading skills, exposure to legal scholarship, and writing, we would expect law review membership to have some credential value regardless of whether one had to write on.  The fact that it appears to have little such value among Canadian firms suggests to me that law review as credential stems from one fact, and one fact alone: the fact that you have to get onto law review, a process that is generally significantly dependent on first year grades, along with the added weeding-out of the write-on process that demonstrates you can work well under time pressure.  Over time, this has taken on an almost Pavlovian quality, so that employers now automatically associate "law review membership" with "top student."  (To the extent that some law reviews at top schools allow anyone to participate on law review [does this still happen?  Info welcome in the comments section], I suspect they can still free-ride off of this employer association between law review membership and good grades.)

I have no problem with that employer heuristic as such, although like many heuristics it is a rule of thumb whose descriptive and predictive value is decidedly mixed, especially as law review membership has been de-linked from a primary focus on grades, for reasons most of my readers are familiar with.  But if credential-seeking is the primary end of law review, there is reason to think that there is a mismatch between law review membership and the broader goal of improving the law review as a vehicle for legal scholarship.  Some students who might have preexisting expertise in some field, or who are simply strongly interested in legal scholarship, will either fail to "write on," in large part because of two mere semesters' grades, or will decline to undergo the process.  Others who do make it on may have no special value beyond their generalized intelligence, or may have no particular love for legal scholarship.  Moreover, some of the people who do make it on, having demonstrated their eagerness to participate in a system of credentialing for love of the credential itself, may well apply those same values to the article selection process, selecting for authorial prestige rather than article quality.  Why, then, encourage a process and a phenomenon -- law review membership as prestige credential for prospective employers -- that does not help, and may hurt, the value of law reviews as repositories for good scholarship?

We might instead consider eliminating write-on or grade-on requirements altogether.  If someone is interested in working on the law review, let them.  Period.  If law review membership is such a valuable teaching experience, why confine it to those who least need its benefits?  If, on the other hand, it is valued mostly as a credential, why encourage it?  Judges and law firms have plenty of other tools, transcripts foremost among them, for determining students' academic status.  While they might like having one more tool, that is not law reviews' raison d'etre.

I see few strong objections to the proposal that are related to scholarship rather than credentialing.  "Too many people will want to participate?"  Not if it's no longer a signaling device for employers; less interested students either won't bother to participate or will drop out quickly, leaving those students who are most interested in legal scholarship for its own sake.  "We want to weed out the poorer students?"  Why?  A's are not a requirement for cite-checking.  Of course there are other more demanding tasks on law review; but the point is that grades are an imperfect proxy for the criterion we should be selecting for -- namely, skill at the specific tasks called for by law review. 

It seems to me that in the long run, delinking law review membership from the credentialing function will simply lead to a law review staff comprised of people who want to do it for its own sake.  That shouldn't hurt, and might help, the goal of encouraging the kind of student-edited law reviews that we, as legal scholars, ought to be looking for. 

And incidentally, an open membership format is unlikely to dislodge the best students from the top of the law review mastheads.  Although, as I wrote above, law review membership at my journal at Toronto was entirely voluntary (and included first-year students), the fact that it offered little serious employer credential value meant that only the curious and interested signed on in the first place.  Of those, only the truly committed stayed on into their second years, and fewer still ran for the senior editorial board.  Those who did, and who attained senior editorial positions, were not the only top students in the school; some of the very best preferred to focus on classes, or clinics, or other activities.  But they were, pretty well without exception, among the best students in the school, and a look at the top of past mastheads from my erstwhile journal suggests that many of them ended up in academia or on the bench.

In short, perhaps instead of encouraging students to write on to law review, we should be encouraging law reviews to open their doors as wide as possible.  It will offer learning opportunities to students who need them, and it won't exclude the likelihood that many top students will still end up running or deeply involved in the top journals.  About the only thing it's likely to do is make sure that those who run the journals are those who want to be there because they care about law reviews -- not because they think that Stiff & Hidebound, or Judge So-and-So, want them to care, which is a lousy reason to do it and hardly serves the function of legal scholarship that gave rise to law reviews in the first place.    

Posted by Paul Horwitz on May 4, 2006 at 12:13 PM in Life of Law Schools | Permalink

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Comments

Paul, as usual makes a number of cogent points. I have two comments, maybe quibbles. First, I do not see criticism of law reviews and the giving of practice pointers on how to succeed in gaining law review membership as inconsistent. An individual can be both a critic of the status quo and an expert in the running of the status quo. One can hope that eventually one's criticisms will be taken to heart and implemented, but, until then, one has to live with the system in place. Second, the proposal to move to an open system is problematic. The present system give law review members a stake in the system. An open system might prove alluring to some, but there is also the significant risk that it might also prove alluring to those who are not committed to the review, but are willing to "give it a try." An open system could create immense logistical and administrative headaches. I'm not suggesting that the problems are insurmountable, but overall the problems of an open system of candidacy might be equal to the present closed system, just diferent.

Posted by: Jim Fischer | May 4, 2006 1:34:36 PM

Great idea, Paul! In fact, several students (including me) made exactly this proposal -- anyone who wants to can join -- for the Yale Law Journal when I was there. The concerns were exactly the ones you mentioned, along with an explicit concern that eliminating the application process would devalue journal membership as a credential (true enough). My expectation was an initial bulge in membership, then waning as the credential value wore off.

It was a very contentious debate. The main pushback was on the idea that the Journal would lose quality control from "unqualified" students getting on just for the credential (I expressed doubt that there was a huge group of unqualified Bluebookers at Yale, but intuitions vary I guess). So in the end, a compromise was struck: there would be a skills test that everyone had to pass, but you could take it as many times as you wanted. Where it all broke down was in the design of the skills test, which was, if anything, actually harder than the ones given in years past. The result was possibly the most arduous application process ever, with an extremely high initial fail rate and a high percentage who took the test multiple times, which I don't think anyone intended. The next class (the one that went through that hellish process) immediately went back to the old system and as far as I know the idea has never been revisited.

My advice to other journals considering this proposal would be that if you decide to do a "skills test" as part of the package, it will be important to come to agreement on the level of difficulty of that test, and ideally an example test itself, as part of the discussion. That's the part we skipped over, to everyone's detriment.

Posted by: Bruce | May 4, 2006 1:36:32 PM

Thanks, Bruce, for that very interesting contribution. You effectively raise two interesting points. The first is that you can always test for the relevant skill set without looking at grades at all. The second I think is raised implicitly by your comment -- namely, that one set of costs I didn't discuss in my posts was the switch-over costs involved, which law review editors may be unwilling to bear given their short stint on the journal. I think this is a valid concern, but not a sufficient one. On that point, I also note that, as I suggested in my post, journals could free-ride for a while off the current fact that employers treat law review membership as a credential.

Posted by: Paul Horwitz | May 4, 2006 1:51:10 PM

Hi Paul,

Great post. I fully agree that it would be great to get rid of the credentialing function with respect to grades, because I really do feel that law review membership can be wonderful pedagogically, and that there are great benefits to the academy in having students with integrity and curiosity make publication choices.

As an update on Bruce's post, unless things have changed in the last couple years, Yale Law Journal does in fact simply use a skills test now. One part is a bluebooking test, the other part is a short memo in which the applicants read three articles, say which one they think is best qualified for publication, and argue why. Instead of having people taking the test multiple times, a "passing score" is set by the 2Ls who write the test, in advance of grading the exams. A minimum number of members is also set, just in case the exam is badly written and turns out to be too hard. I believe Stanford Law Rev. has a similar system.

There are certainly glitches when the test turns out to be too hard or easy, but in general, I think it just measures desire to be on law review, and in small part, ability to talk about scholarship in a reasonable way.

However, the credentialing is still a problem, because employers and judges just have not caught on. Thus, many students still join law journal even at Yale for resume building reasons. Even if more law reviews moved away from using grades, do you think employers would ever catch on?

Posted by: gowriramachandran | May 4, 2006 10:13:35 PM

I think a lot of what the post and comments say above applied a few years ago. However, as someone who just recently was on law review and then saw myself and my co-reviews enter the legal market, I think that law firms' perceptions of law review have changed a good bit because law review membership is not that great a proxy for grades anymore--and law firms know this.

Because most schools have a good number of write-on spots, law firms know that a good number of law reviewers may be able to write a good essay under pressure, but are not necessarily near the top of the class. This played-out at my school, as those on law review who I knew also had top grades easily obtained 2L big firm summer jobs, while those who I knew had more modest grades had a terrible time finding summer work. It was almost a one-to-one correspondence. At the same time my friends who had top grades but were NOT on law review also landed big firm summer jobs. I heard a few comments about interviewers asking the latter group "well, why aren't you on law review?", so membership definately didn't hurt, but it didn't help much if you didn't have the grades.

Which goes to the age-old story that it's grades to count for employers, not other activities such as law review. That being said, I believe judicial clerkships are different.

Posted by: Former Law Reviewer | May 4, 2006 10:27:29 PM

Paul.

I could not agree more. The world of legal scholarship would be a better place if the model for law review membership became less driven by the credential value, and focused more on attracting people actually interested in legal scholarship. It would likely lead to better articles, happier law students (since those with no interest in journal work would stop doing it and could do other things) and a slightly more honest clerkship and law firm hiring process. But I think there are two reasons why this won't happen, at least not soon.

The first is a horizontal collective action problem across schools. Your argument that once law review membership becomes open to everyone, it will cease being a crediential only makes sense if membership suddenly opens up for every school all at once. Ohterwise, since employers cannot be expected to be all that knowledgable as to specific schools' policies, the credential will continue to have meaning even at schools that no longer use a competetitve selection process. (Witness the modest resume benefit of being a "Senior Editor" on the Yale Law Journal, which requires only of a blue-booking test). This *will* cause problems, since as long as "law review editor" remains a credential, and not just a a job, the position will continue to attract too many people with no real interest in the job itself. Worse, if law review at a particular school is allowed to become a hollow credential, this will serve to obfuscate the difference between the "true" top students vs. those who simply did a good job of packaging themseles, which probably works against the interest of the school in the short and long term.

The second, and deeper, obstacle is a vertical collective action problem across time. Current law review staffs have a strong disincentive to implement this change since, while it would help future classes, it would also work against their own self-interest. If tomorrow, the Harvard, Stanford, NYU and Columbia law editors all agreed to an open membership policy, the value of law review memebership as a credential would be gutted not only for editors of the class of 2008, but likely for the class of 2007 (i.e. the current class), 2006, 2005, etc. And 10 years from now, most employers won't remember the exact year that membership policies switched and will stop caring altogehter.

Posted by: Douglas Brackman | May 6, 2006 1:54:49 PM

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