Thursday, June 02, 2011
Yes, law students select and create legal scholarship
As the spring submission season winds down, you can hear the collective sigh of relief. No matter whether one is happy or disappointed with the results, all those involved -- from the profs to the students -- probably have a few new gray hairs. The law review submission process is angst-filled for just about everyone. But why?
There are two contradictory proverbs about law review submissions that most of us seem to espouse: (1) placement does not dictate the quality of the article, and (2) it is important to place your article as "high" as you can. This is the acknowledged paradox of the system. Both statements cannot be correct, at least in the long term. If quality was unrelated to placement, then no one would care where the article placed. But if placement actually does signal the quality of the work, then our field is leaving decisions about quality in the hands of students.
It's that second proposition that is the elephant in the room for many prawfs, especially when explaining law reviews to colleagues in other fields. Yes, we submit to student-run reviews. Yes, publication decisions are made by students. Many of us are embarrassed by this, and so we run back to (a): "It doesn't really matter where we publish. The law review is just giving the article a platform." But then why do so many of us care about the platform? If pressed, the junior scholar will likely blame others: "Well, my senior faculty really care," or "The rest of the academy seems to think it's important, so I guess I have to go along with the crowd."
I think we need to work through this contradiction. But rather than taking the traditional route, I'm going to go in the other direction. Yes, students help decide what is good scholarship. Instead of running away from this, I think we should own it and deal with it.Law school students are in something of a strange place in the academy. They are graduate students, and they are getting a "juris doctor." But unlike other doctoral students, the overwhelming majority will not go on to academia -- they go into practice. This places them in an odd position -- doing extensive study in a particular academic field, but not sticking with the field afterwards. So law professors are expected to train not future academics, but rather future lawyers. And we are expected to write for lawyers as well. We're criticized when our research is not useful to, say, a Supreme Court chief justice. As Gordon Smith felt moved to point out, in italics -- "legal scholars often are not writing for practicing lawyers." But even he felt the need to throw in "often."
Legal scholarship and legal education have always been hybrid propositions. Part academia, part professional school. Part theoretical, part practical. And that goes not only for professors but for students as well. Law students are graduate students. They are learning professional skills, but they are also learning an academic discipline.
Law review editors are a special subset of law students. Most of them, too, will go on to practice. But they are even more engaged in the scholarly enterprise than their fellow graduate students. Law review editors not only select and edit legal scholarship -- they write it as well. Law review notes are direct opportunities for students to participate in the scholarly and professional conversations of the field. It has perhaps become less fashionable for academics to cite student notes, and they matter a lot less than they used to for those students who want to be scholars. But notes remain a way for students to write scholarship.
Student control over legal scholarship can be seen as a historical accident, a locked-in network effect, a solution whose time has passed. But rather than being embarrassed that students are involved in legal scholarship, maybe we should embrace it. Yes, our graduate students run many of our most prestigious journals. They are expected to know enough about the field that they can choose the important articles and help to edit them into even better pieces. The luxury, of course, is that we don't just have two or ten or twenty journals that we have to publish in, or else -- we have hundreds of journals, and a good piece can rise to the top of the field even with a lower placement. But we should acknowledge that yes, our graduate students are part of our scholarly conversation. And there are positives to this.
What if philosophy, or economics, or political science journals were run by grad students? It's an interesting thought experiment, and I'd like to hear from folks in those fields about the effects such a change would have. But having students involved in legal scholarship helps keep the field connected to both future academics and future practitioners. Those students working for a journal are reading, selecting, and editing scholarship. They are involved in the scholarly conversation. It helps to keep the field fresh and accessible and connected to the world of practice. In a hybrid discipline, it is a hybrid approach. If we recognize that, it might change not only our perspective on law reviews, but also how we approach things like teaching and curriculum.
That is not to say that peer review is unimportant. We work in peer review in a variety of ways: a small but significant number of peer review journals, the star footnote, top-10 lists, workshop series, the Stanford/Yale junior faculty forum, a note from a colleague, lateral offers, book contracts, tenure. Overall, we need more peer review, not less. But we need not adopt the level of discipline-loathing that completely disregards the contribution of law reviews. Yes, students help choose, edit, and create legal scholarship. And that can be a good thing, too.
If we start taking seriously the notion that our students choose and create legal scholarship, we can stop putting our fingers in our ears and start trying to make the process better. If we want students to be able to do their work more effectively, what can be done to facilitate the process? The most important thing, in my mind, is committing to the notion that law reviews are not necessary evils, or even embarrassing vestiges, but rather partners in the scholarly endeavor. When we start imagining the role of students in law reviews as a legitimate part of legal education and legal scholarship, we will start to think of ways to improve the overall process. But if we cannot commit to that notion, then we should abandon law reviews altogether and move on to a new system.
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The argument in this post appears to be in the following four sentences: "But having students involved in legal scholarship helps keep the field connected to both future academics and future practitioners. Those students working for a journal are reading, selecting, and editing scholarship. They are involved in the scholarly conversation. It helps to keep the field fresh and accessible and connected to the world of practice."
I'm afraid that I'm having some trouble with this argument. It's a stretch at best to believe that student editors with perhaps a year's worth of experience in the academy are capable of reliably recognizing high-quality scholarship, but I'll suspend disbelief on this one. It is, however, quite impossible for me to understand how having journals edited by students who have never practiced law "keeps the field fresh and accessible to the world of practice." If this is the mechanism for keeping scholarship useful to practitioners, then perhaps it explains why so many practitioners have so little regard for legal scholarship.
Chapman University School of Law
Posted by: Larry Rosenthal | Jun 2, 2011 12:06:44 PM
Do you have any concrete suggestions for how to make the process better by embracing the fact that students select and edit legal scholarship?
Posted by: James Grimmelmann | Jun 2, 2011 12:46:30 PM
I think Larry has a good point on students not really doing much to keep field connected to the practice, but I don't think that was Matt's main argument. I took the basic thrust of the post to be: "Students select scholarship. That's not changing. Let's recognize this and deal with it."
I wholeheartedly agree. Could mean more schools offering 2-credit courses on Legal Scholarship that law rev folks have to take. Could mean more faculty involvement, partnering with students, on article selection. Who knows. But Matt has now changed the conversation in a more constructive direction. Great post.
Posted by: Jason | Jun 2, 2011 12:51:32 PM
In Engineering, as an All-But-Dissertation graduate student, I did peer reviewing for several journals (mostly the one my PhD Supervisor edited, but also for journals to which we had submitted articles). So, I was involved in scholarship as a grad student, but it was up to a senior editor a journal to make the final selections.
The journals we submitted to also require(d) exclusive submission. You get one shot at a time to publish your article not dozens (or hundreds?!).
I think that the legal academy could do this easily if law profs were willing to do the extra work that reading articles and writing reviews entails. I think y'all would have to shorten your articles considerably in order to make it really viable, though. :)
Posted by: billb | Jun 2, 2011 1:07:49 PM
May I suggest that the "student editors" also provide an opportunity not present in peer reviewed systems... albeit one that the academy (and the profession as a whole, for that matter) seems to disdain?
Students who are properly aware of what they're doing when selecting articles will demand a certain clarity of expression in the article that may be less important to peer reviewers. (Admittedly, many student editors are not properly aware of what they're doing when selecting articles... but that's for another time, and is hardly unique to student-edited law journals.) That's not to say that technical terms must be avoided in articles; it is only to say that their use, and definition, must be clear and not cross the line into jargonspeak and similar obfuscation.
From my own days on law review, lo those many years ago, I recall one polarizing article as a 2L doing cite-checks. The article was written by a Big Name at a Big Name school... and it was almost incomprehensibly filled with jargon, ambiguity (both intentional and from bad writing), and contradictory assertions that were never resolved or acknowledged. We did our best to deal with it, but were continually rebuffed by the responsible Articles Editor and 3L board in our requests for clarification so that we could see if the cited authorities supported unclear propositions. That one experience led us to have a formal, internal policy the next year of rejecting all articles that did not come to us as initially submitted in clear, editable English... I think (and citation counts a decade later seem to agree) to the great benefit of the journal.
So, in a sense, that's what the student journals offer that peer-reviewed journals don't: A (potential) demand that articles be written to be accessible to curious, partially trained, doctrinally unsophisticated readers.
Posted by: C.E. Petit | Jun 2, 2011 1:26:47 PM
To C.E. Petit: the argument against allowing students to select articles and in favor of blind peer review is contained in the facts you recall. You say that the article you edited in law school was "almost incomprehensibly filled with jargon, ambiguity (both intentional and from bad writing), and contradictory assertions that were never resolved or acknowledged." And yet, it was selected for publication. Why? Well, because it was written by "Big Name at a Big Name school". Of course.
Posted by: Lev | Jun 2, 2011 3:58:00 PM
Terrific post, Matt. Wonderfully presented, as always, and provocative too. Others may be right in their quibbles, but the fact remains: Great post. Wish you wrote here more often.
Posted by: anon in bellevue | Jun 2, 2011 5:25:19 PM
Lev, I agree that blind reviewing is better. It does not follow, though, that therefore blind peer reviewing is the only alternative to open-attribution student article selection. There's an intermediate case -- blind student article selection -- that merits consideration. Conversely, blind peer review only would tend to undermine the "blindness" of the review process, as some combinations of jargon and research agendas are far from unknown to others, within niche areas and sometimes in much broader ones.
OTOH, there's quite literally nothing in law that is reviewed blind, or at least nothing that I've ever encountered or heard of. In practice, one knows who the parties are and who is representing them (whether we're talking about litigation or negotiation or anything else); one certainly knows who the clients are; and conversely, the tendency of some prosecutors to manipulate when they will apply for warrants so as to get a "more favorable" judge is more than just urban legend.
Posted by: C.E. Petit | Jun 2, 2011 6:07:05 PM
I believe peer reviewing is more important than editors’ academic experience. Maybe internet publishing is a good choice, and the internet publishing should allow people to comment each articles publicly. I wish SSRN have such a function.
And I don’t know if this view is correct:
There are so many footnotes in legal articles and other social articles, and there are so many footnotes in legal books. I tried to check some science articles and science books, I find that the footnote are much less. Are so many footnotes works for copyright, or for the lack of academic experience of student editors? Social science can have non-disputed basic terms/concepts, though it is not able to have formulas as maths or physics. I wish we see more articles which expresses more useful views , rather than restating past sayings with large part of the article, but a small part of his own views. And I wish the law professors not argue these issues anymore: what law is, what is the function of law, what is the element of law, and how does law play its role? With such a base, maybe student editors can select articles better.
Posted by: Lutong | Jun 3, 2011 3:25:26 AM
C.E., you make a good point in your response and I agree that your alternative is worth trying.
Posted by: Lev | Jun 4, 2011 7:30:27 AM
I'll say this in the most polite manner: The idea that peer review is per se better than student-edited, student-reviewed journals is a foolish boast.
I could have said it much less politely.
As the peer review advocates tend to focus on anecdotes scraped together after grumbling about a placement for an article that was lower in 'prestige' than they'd hoped ('prestige' being defined who-knows-how), I will offer the following anecdotal experiences comparing peer reviewed journals with student reviewed ones.
My first exposure to peer reviewed journals came in undergrad while a history major. I had an umber of classes dealing with bleeding edge topics at the time (society in the middle ages, arabic history an orientalism, and some more). This left my professors assigning not text books, but journal articles.
They were peer reviewed. And they were rubbish.
Articles meandered for pages with no point to the prose. Citations were overly verbose, lacking in clarity, or non-existent in important sections. They were dense articles filled with niche jargon, inside commentary (kind of like inside jokes, but more boring), and quite unhelpful on the whole.
I knew I didn't want to write that way—to a too-incestuous audience that perpetuates its insularity.
Law school opened my eyes to how scholarship could be modeled. Law journal articles, believe it or not, were a breath of fresh air. Compared to the history articles I had to read I found law journal articles to be witty, fresh, and succinct. Moreover, they were practical! Even the most arcane, law of the horse, niche area, high theory paper ultimately a practical side.
This comes down to law journals' footnotes (oft-mocked abroad): copious and informative. This allows a researcher to find an article that might not be on point, but it might point towards other resources of great value. I love it. (And I always try to provide this level of utility as much as I can in my own works.)
I was very active in my law journal. I solicited articles (because we weren't a top-100 journal), was head of an editing team, and wrote a comment that got published (and since cited). I enjoyed it so much I wrote an article during bar prep that ended up getting published in another school's topical journal after graduation.
This, I thought, is worthwhile scholarship. It has utility, purpose, and theory all together. It wasn't like the terrible peer-reviewed articles I read as a history major (or worse, the English ones I read as a short-term English minor).
Then I spent a year studying law abroad. A great experience. Interestingly, there was a marked difference in quality in the articles I read in international law journals. They were more dry, unimaginative, rote, and full of jargon.
Funny thing, they were all from peer-reviewed journals! Coincidence? Not in my book.
While there are exceptions to both anecdotal rules (boring articles in U.S. journals, fascinating ones in international journals), I think the similarities to my history and english readings of undergrad are instructive.
What do they instruct? There is great merit in forcing scholars to write to non-experts. Mr. Rosenthal, in an early comment, bemoaned articles being read by students who, in his opinion, can't be expected to "recognize high quality scholarship."
Pish posh I say! Frankly, students are better at recognizing high quality scholarship than most professors. This is because high quality scholarship cannot be obtuse and, therefore, must be recognizable by the likes of law students and practicing lawyers.
Mr. Bodie mentioned that we are a hybrid profession and law schools are hybrid graduate school experiences. This is the essence forgotten by both law professors like Mr. Rosenthal and the lawyers out there deriding law schools are non-practical.
High quality scholarship is scholarship that can be used to understand complex questions. It is the scholarship that echoes a professors goal of teaching his or her students how to understand a complex legal issue. High quality scholarship teaches, explores, and explains.
Obtuse writing, unapproachable jargon, and a paper not capable of being understood by a law student (or lawyer) does not equal high quality scholarship.
Finally, I've read a number of papers, published and submission drafts, over the last few years. I can tell you now that simply bearing the title "professor" does not mean one can write. I've seen many a student article deal with complex legal issues more adroitly than those of professors. I've seen many a lawyer piece do the same.
This is one of the beauties of our profession and our academy. It's accessible to anyone and everyone. Unlike the sciences, our professionals don't need expensive labs and university backing to contribute to the body of ideas. Unlike the social sciences and arts, our body of scholarship is not full of obtuse prose and burdensome jargon.
Peer reviewed journals have their place, but the reason legal research articles are superior to those of other soft sciences and arts is because of our student-edited system. It is a strength of the legal academia, and I dare say those who argue against it really don't know what their peers in other fields are doing.
I do support blind reviews, however. Then again, I'm not Big Name X from Big Law School Y. Perhaps I wouldn't like blind reviews if I was.
Posted by: John W. Nelson | Jun 4, 2011 11:52:52 PM
There are two major distinction between law students and other graduate students, at least PhD students, not mentioned here. First, PhD students also teach. Second, PhD students are required to produce a substantial scholarly work. The one to two year process of writing a dissertation creates a scholarly relationship between faculty members and PhD students which is not replicated for law students. (Aside from teaching, it is most PhD students only academic work.) As if the dissertation itself would not be enough work, PhD students must defend both the proposal to do the work and then the dissertation itself in front of a committee of professors who make an on the spot determination of the publishable quality of the work.
Unfortunately, the law students who review law professor submissions do so without the benefit of the experience of their PhD student colleagues. Article quality is not placed in the context of questions that arise during teaching or dissertation research or defense. Not surprisingly, students use other proxies for quality: reputation of professor, reputation of professor's school and reputation of the other law schools that have published the professor's work.
Other parts of the academy scoff at the idea of young professors selecting articles or serving as referees, much less graduate students. Worse yet, their graduate students have much more in-depth experience at evaluating academic value than do law students. The impact of parallel submission and professional students selecting articles creates the perception of a lower bar for legal scholars. (No one would seriously suggest MBA students picking articles for Finance Journals as an example.)
As law becomes more interdisciplinary, and more law professors have earned PhDs, I suspect that peer reviewed journals will draw better articles as a way of signaling quality. Student edited journals will be the legal professions equivalent of a lemon's market.
Posted by: anon prof | Jun 5, 2011 1:33:10 AM
Other parts of the academy produce works of scholarship of lesser quality than the legal academy. The only part of the academy who's scholarship is on par and, some might argue, superior to the legal academy are the hard sciences. This is also the only part of the 'academy' where the general post-grad model works. It works there because of the resources and expertise needed for some of the more complex experiments. Even then, many of the more prominent articles that have changed paradigms in the sciences have not been based on complex experiments.
As for the idea that peer-reviewed journals don't use the proxies listed by anon prof in choosing articles, "reputation of professor, reputation of professor's school and reputation of the other law schools that have published the professor's work," is complete hogwash. I know many professors and grad students who complain about these very biases. Their complaints of peer-reviewed journals not truly evaluating the quality of work but the names behind it echo those by law professors about law journals.
Finally, the idea that law students are not qualified or experienced enough to "evaluate" academic scholarship is ludicrous. If law students are not so qualified then law professors should look in the mirror to see the reason why. Law journals are populated by 2Ls and 3Ls. Many law journals structure themselves so that it is the 3Ls who are in the final position to say what is and is not published.
If law students cannot evaluate the scholarly quality of a law professor by their 2L, or worse their 3L year, then the failure lies with their professors and school. This is even more so considering law journal members tend to be the most academically and scholarly focused students in a law school. If a law school's students are so ill-prepared to evaluate scholarship, then the professors are failing to teach them how to do so.
As for the quality of law journal articles, let me add another anecdote from my time studying abroad. U.S. law journals are considered some of the best law journals in the world. The top U.S. law journals have better reputations, for the most part, than the top peer-reviewed journals abroad. I met law professors in Europe asking me how to get published in a U.S. law journal because such a publication would raise their stature in their department.
This isn't to say lower-tiered law journals carry the same weight. They don't. Many topical journals do not as well. But naked claims with no evidence supporting the assertion that law students can't evaluate scholarship are, frankly, snobbery and sour grapes. And yes, we've all had those grapes if we've submitted to journals, but they're no different than the sour grapes in the rest of the academic world.
As for me, I view the open market on scholarship created by student-edited journals as a major reason why academic scholarship in the U.S. is heads and shoulders above scholarship in other social science and arts fields, and academic scholarship abroad.
And none of this discussion even touch on the incredibly valuable experiences a law journal member gains by being part of the selection and editing of articles. These experiences are unequaled anywhere else in the world (except, perhaps, Canada).
What are the real reasons of those who push for peer-reviewed journals? Quality, frankly, is not a sound argument. Perhaps there is another. After all, there are truly some areas of the law where a peer-reviewed process may work better. Yet, these are topical, not general, and most law reviews serve a general market.
Posted by: John W. Nelson | Jun 5, 2011 12:34:00 PM
Larry, Lev, and the anons: If you think the student-edited system is a joke, you are welcome to submit your articles to the many peer-review law journals out there: the Journal of Legal Studies, Jurimetrics, Supreme Court Review, etc. If you manage to place there, you can tell your colleagues on your faculty that your placements are better than theirs because yours were peer-reviewed. You HAVE an alternative for publishing if you don't like 2Ls deciding about your scholarship - why don't you use it?
I'll be a little more rude: in my experience, the law profs I know who call for an end to the student-editing system are those who do not read academic articles regularly, whether law reviews or in other fields. They haven't looked at an issue of the Harvard Law Review anytime in the last few years. The grass always seems greener on the other side, and law profs who can't accept the possibility that their own scholarship is mediocre feel certain that they would excel in a peer-review system. Why don't you submit to peer-review law journals, in that case? I frequently read articles from other disciplines (mostly economics, political science, and history) and plenty of the peer-reviewed articles are fluff, and many of them have large sections copied verbatim from the author's previous articles. I read a lot of law review articles as well, and the ones that place in top journals are almost always of much higher quality than articles I read from second-tier and lower. My observation is that the system IS working most of the time for sorting the best articles into the top journals, and the worst articles into the lower-ranked journals. There is a huge observable quality difference between the journals. And the top three journals now DO include a peer-review component in their publication decisions - they are very explicit about that. You can submit to Harvard, Yale, or Stanford and get peer review.
Also - exactly what is it that makes a 2L at a top law school so much less experienced or less learned than the new tenure-track professor you just hired at your school, who is submitting articles to them? Are they coming right from an Ivy League law school, or right from a clerkship? In that case, they may be 2-3 years apart - not exactly a chasm in terms of knowledge. Or are you imagining that peer review will be done only by seasoned, tenured professors? What makes a 2L who is reading hundreds of article manuscripts that much less qualified to sort them than a tenured prof who hasn't published (or even read a law review article) in the last decade? If we abolish the current system and switch to peer review, how will we ensure that all the reviewing is done by tenured profs who are also active writers, up-to-date with the scholarship in their subject areas, open-minded, fair, and reasonable?
For me, the primary advantage of the student-editing system, besides the incredible turnaround speed compared to peer review journals, is that they represent a more general audience. The editors themselves want their journal to be useful to as broad an audience as possible - judges, practitioners, scholars from other fields, other law students, etc. Peer-review systems mean you are writing for a handful of other experts in your field. An article written so that one of the brightest 2Ls can understand it, follow the argument, and see its relevance, is an article that will be more readable and useful to judges, judicial clerks, other students, practicing lawyers, political scientists, and so forth. Moreover, it means a lot to me that the editors deciding whether to publish my article have read literally hundreds of the manuscripts law profs have written that year, and are comparing my piece to what every other law professor has submitted. I don't think the peer-review journals provide the same breadth of comparison for those making publication decisions. If I wanted to write an article just for a dozen other professors around the country who like the same narrow subject (which the peer review system may represent), I could just send it to them - why publish at all in that case?
Posted by: South Texas Law Prof | Jun 5, 2011 4:57:41 PM
The prior posts are much too full-throated "all or nothing" -- and oddly personal -- defenses of the current student publication system employed by the legal academy. Unfortunately, they ascribe a point that I did not make: that student reviewed journals should be eliminated because they cannot determine "good" from "poor" articles.
The main thrust of my post above (and others) is not that second year law students cannot determine article quality. I suspect most can, particularly given that they read more law review articles than anyone else. The issue is that it is difficult for them to weed out articles where an author has completely mishandled an area that is well known to her/his peers. There are two reasons: bias and unfamiliarity with the intricacies and breadth of legal scholarship.
Student reviews can determine if articles are well written, but they have a much harder time weeding out mistakes. The deluge of submissions in a short time frame guarantees that law reviews will publish an article which will make important misstatements. This is particularly true in any area outside of the first year curriculum and with any law and _____ article.
The posts above suggest that because the system works at top tier journals -- some of which now require serial submission as a costly signal -- that the vast majority of student editors on law reviews can determine article quality. I would submit most law students can determine if a piece is convincing and well-supported, but little ability to screen for author errors.
Certainly peer reviewed journals in other fields suffer from the similar problem of bias. Even in a double-blind review it is possible to determine the identity of the submitting author: citations, topic, writing style, etc. Editors frequently have a vested stake in the publication records of friends and certain colleagues. However, the peer reviewed journal system, and its feedback, have a much better feedback loop to stop inaccuracies from being considered part of the scholarly knowledge.
And fortunately for academic legal scholarship, informational proxies do strongly correlate with the ability to produce high quality work. (Although there is some empirical work, and law professor & editor anecdotal evidence, to suggest that top quality journals disproportionately publish their own professors.)
I am not suggesting that good quality articles are overlooked in lieu of poor quality ones. It's at the margin. Because of the sheer number of articles, higher quality articles will get placed in higher ranked journals. My point only explains why good quality articles do not receive the placement they "deserve".
As is the current trend, noted by some of responding posters, the "best" journals now are peer reviewed. I suspect more will do so in an effort to signal quality. Also, in other parts of the academy, peer review is a requirement. So co-authors in other fields will prefer peer reviewed journals. The preferences of the larger academy are important, because most of the academic legal literature, to the complaint of judges and practitioners alike, is not written to inform either group. Legal scholarship largely exists for the consumption of professors.
The shear numbers of articles prevent student run journals from leaving the legal scholarship landscape anytime soon. However, in the same way that top tier journals have higher quality articles than those in lower tiers, I suspect more of those journals will incorporate some type of peer review in the future. Lower tier journals will serve the forgotten purpose of legal scholarship: to inform judges and practitioners.
Posted by: anon prof | Jun 6, 2011 1:57:22 AM
The idea that students can't determine whether an article completely mishandled an area of law goes right to the quality debate. You're still saying students can't determine quality, albeit in a slightly different way to attempt to sound less derogatory towards student ability.
And you're still wrong.
Students spend their first year diving head first into the fundamentals of law. They bolster this in their second year. They know a good deal about the law by the time they decide whether a paper is publishable or not.
Further, to presume students do not educate themselves on the state of the law in an area they're not familiar with indicates you don't have experience with the process (or did not work on a journal that did a good job).
Students educate themselves when they don't know about an area. They read other articles on the topic, check their books, and talk to their professors.
Finally, there is value in publishing articles that some might consider a mishandling of the law. Sometimes the consensus view needs to be challenged, and only articles the consensus viewers look at as mishandling an area of law can do that. Students are much less wedded to such consensus views and this keeps legal scholarship much more vibrant. Peer review, on the other hand, tends to shut down too radical views unless those folks start their own journals. (Which does happen.)
Ultimately, anon prof, you don't think students can mentally compete with professors or grad students in other fields when it comes to selecting articles. I disagree.
I doubt you could list many articles that support your arguments that students cannot measure quality well. And even if you could, I could find just as many showing how students can identify quality.
As for your shift to a discussion of the legal market generally, I find it not as well informed as it might be.
First, all academic fields prefer publication in journals related to that field. Interdisciplinary publications are nice, but they are always weighted less than publications within that field. It is less that peer-review is "mandated" and more that discipline-focused journals are preferred, and the legal discipline is the only one who uses the model it does.
The main reason behind this is that academics are better able to judge the quality of the publications in journals they know about. If they are not in the legal field then they will know less about law journals.
Although, anecdotally, I've heard more willingness from humanities/soft science folk to publish in legal journals than many other disciplines -- although their willingness is often tied to a specific set of law journals. (And these tend to be topical.)
As for the utility of law journal articles, I think you are painting with too broad a brush. I know more and more professors, schools, and journals are looking to see more practical articles. There is a slow trend building that way and away from pure theoretical pieces.
However, even before this trend I've found law journal articles to be quite helpful. I practice law and when faced with new an unique legal questions I've found law journal articles to be a great starting point more often than not.
The most helpful articles tend to be those designed to be more practical, but even the more esoteric theoretical articles provide great value in getting started in a new area. One reason is the oft-derided tendency for law journal articles to pack in a lot of citations. These citations often lead to useful primary sources even from theoretical works. The other reason is that theoretical works can help shape new and unique arguments for pleadings.
So the death of law journal utility is greatly exaggerated. I'd argue the real problem is that legal research does a poor job ensuring students understand how to use law journals (and many other legal resources) in a useful way. (Many students, without Westlaw or Lexis, wouldn't know what to do -- a sad state of affairs.)
Posted by: John W. Nelson | Jun 6, 2011 8:08:39 AM