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Tuesday, April 08, 2008

Ann Bartow's idea for law reviews

Over at the Madisonian Moblog about law schools as institutions, Ann Bartow suggests that we can improve law reviews and law schools simultaneously by having a school's journal only publish the works of its own faculty. There are some good comments there and Al Brophy adds to her thoughts.

My contribution was the idea that we already have the germ of this: Many schools have their own paper series on SSRN, which contain only the works of that faculty. Obviously, this is not entirely the same as a fully completed and edited article in a published journal. But it is a start in the same general direction.

What do people think of Ann's idea?

Posted by Howard Wasserman on April 8, 2008 at 04:10 PM | Permalink


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Howard, I think the point you mentioned over at Madisonian 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!

Posted by: Dan Markel | Apr 8, 2008 5:02:57 PM

Thanks, Dan, but I already publish most of my stuff in refereed journals. I know peer review isn't perfect, but wouldn't a move in that direction mitigate many of the problems mentioned wrt law reviews? I have never quite understood why law profs don't have to do what almost everyone else in the academy does -- submit work to one journal at a time, having it evaluated by a few experts in your field and an editor with her own expertise, as well as doing the work of refereeing a few times a year (I'm currently sitting on four reviews [2 econ, 1 l&e, 1 sociology] I need to submit). While not perfect, this would certainly improve the signal/certification of quality bestowed by publication in law. Further, it's a bit silly to think that everyone on a faculty can just read everyone else's work and judge the quality (I can't judge con law and you can't judge econometric work very effectively).

Posted by: Klick | Apr 8, 2008 7:57:06 PM

I posted the bulk of this comment on Bartow's original post (or at least tried to).

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?

Posted by: Geoffrey Rapp | Apr 8, 2008 8:13:00 PM

I raised a slightly different version of Klick's point in a comment to Ann: Does publication become automatic--anything a member of FSU's faculty automatically is published in FSU Law Review? If so, that moves the legal academy even further from every other discipline. It no longer is just that students judge our work--now, our work gets published without being evaluated, pre-publication, at all (although I think Geoffrey, in part, addresses this concern).

Alternatively, if there is going to be a selection process: By whom is it applied (faculty or students) and how?

Posted by: Howard Wasserman | Apr 8, 2008 10:20:55 PM

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.

Posted by: Dan Markel | Apr 9, 2008 9:04:11 AM

A different possibility (admittedly to solve a different problem) would be to adopt the opposite policy -- law reviews collectively agree that a law review ought not to accept a publication from a member of its own faculty. To the extent that some think Law Reviews are unduly influenced by members of their own faculty to publish the faculty's work (there was a blog post here a few weeks ago so suggesting, I do not have enough experience to know whether this is right), this would correct for "nepotistic" placement and free up more spaces in more journals.

Posted by: Glenn Cohen | Apr 9, 2008 10:12:42 AM

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