Friday, May 25, 2012
More on journals
In continuing to think about scholarly journals, I thought I’d return to a perennial topic (for example, here): peer review. I’m still not sure I understand the attitudes towards peer review at law school.
Yes, I get that most law reviews don’t do it, and those that do have some sort of pre acceptance review by faculty or specialists in a field typically rely on a process that is much less formal than the peer review systems in the social sciences and humanities that I am familiar with. I also understand that many law review articles are work shopped along the way before they are sent to law reviews, though we do that as well—more often in conferences, perhaps, than at law faculty workshops, but it’s the same idea. And yes, I realize that when law professors go up for tenure or promotion, their files (along with their publications) are sent to referees who do a post-publication review. But, of course, we do that too in the humanities and social sciences.
What I don’t quite get is why you don’t do it. Is peer reviewing simply not something you’ve done, so you don’t really want to start? Or is it something that isn’t really desirable for some other reason(s)? If there are other reasons, what are they?
Posted by ERD on May 25, 2012 at 07:02 AM | Permalink
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I don't know if the reason law reviews didn't start out as peer reviewed is historical accident or something else. But I think the reason they don't switch to peer review is that it would require changing a lot more about the system than just finding peer reviewers, and there's a lot of institutional inertia against that, and not really many incentives to do it. I can think of a couple of these barriers off the top of my head:
1) Peer review journals generally forbid simultaneous submission. But the sheer number of law reviews and law review articles being subimtted dwarfs anything anyone's dealing with in the social sciences. Under such a system, there'd need to be some way to distinguish the mass of law reviews that are generally considered at the same "level" from each other so that an author knew where to start. Or someone would need to come up with a system where law reviews did a first cut, decided who they wanted to send to peer review, and then authors chose one to stick with. But this would require massive amounts of coordination and, well, who's incentivized to put such a system in place?
2) In other fields, there's a smaller community of scholars. In theory, at least, you can be reasonably assured that you put in your time peer reviewing for people who will later put in their time peer reviewing for you, and it'll all come around. Law reviews get submissions from practicioners and students who will never be academics; there's not the same kind of reciprocity.
3) Students aren't really interested in giving up their positions, and they're only around for two years anyway, so they don't really have any reason to reform things for the next generation. Administrations don't really have any reason to take away prestigious positions that get their students jobs when it won't actually make their school more prestigious in other ways.
I'm sure there's others but that's what immediately comes to mind.
Posted by: Katie | May 25, 2012 8:57:12 AM
Law reviews do other things that social science and humanities journals do not. Most importantly, the law reviews cite check, verifying that the authorities cited both support the author's argument and say what the author claims that they say. That's a major contribution to the usefulness of the article to other lawyers, other scholars, and courts. The peer-review process isn't set up to catch errors at that level of granularity, and I commonly read articles in peer-reviewed journals that have the sort of small but real mistakes that undermine my confidence in the inferences the author draws from the evidence she cites. In my experience, that sort of error is less common in law review publications. Also very important is that working on a law review is not merely slave labor -- student editors have the opportunity to learn an enormous amount. Having the editorial discretion to choose what articles to publish is an integral part of their educational experience. (Yes, law reviews select and publish some silly pieces that make only minor contributions, but so do most peer-reviewed journals.) I've published in both sorts of journals, and I have more confidence that the work I have published in law reviews has been triple-checked to catch stupid mistakes. A down-side is the fight I need to have with law review editors every time to prevent them from roughing up my prose to make it less informal, but I think that cost is worth the gain.
Posted by: Jessica Litman | May 25, 2012 9:00:27 AM
This is a question I had when I went from academia to law school (where I was on a law review). I was surprised, in fact, at how little professorial involvement there was with the law review, other than general editorial supervision by the main faculty contact. To Katie's points in her comment, 1) the sheer number of law reviews is likely intrinsically related to the fact that they are not peer reviewed and that they allow simultaneous submissions; 2) I do not think that there is in fact a smaller community of scholars -- my academic field was medieval church history, and I can guarantee you that there are more criminal law professors in this country than there are historians of the early medieval church; 3) I think there could be a way to keep the student involvement element of law reviews and bring in a peer review element -- this relates also to some of the issues Jessica raises.
I would disagree with Jessica's contention that there are fewer errors in law review pieces than peer reviewed academic pieces. And I worry more about whether a piece is claiming X or Y for a proposition than whether a footnote is correct -- when reading a peer reviewed scholarly article, one has more confidence that the content is accurate than with a law review piece that may have granular accuracy, to use Jessica's term, but the overall thesis might not have merit or be trustworthy.
I am interested in how the non-peer reviewed nature of law review articles dovetails with the issue of criticism of legal scholarship that has been discussed before on PrawfsBlawg (for instance, the Chief Justice's fairly recent critical comments).
Posted by: DHMCarver | May 25, 2012 10:30:41 AM
"What I don’t quite get is why you don’t do it."
It might be helpful if you were more specific in your question. Do you mean to be asking why legal academia hasn't embraced peer review, and instead relies on student-edited journals? The answer would rely a lot on historical explanation and path dependence. The practice probably originated when law reviews were much more open to publishing non-academics, and law schools generally regarded themselves as professional schools as opposed to other liberal arts or scientific disciplines (which themselves did not then have the elaborate forms of publishing they do now). Even now, student-edited law reviews are fostered in part because they are part of a professional student's education, and no school could renounce them.
If the "you" is more at the level of individual faculty, I'd wager that it's because there's relatively little margin in peer review publishing -- in law schools, publishing in student journals "counts" for most if not all professional purposes -- and it's more arduous and slower to market. In this more atomistic frame, moreover, you lack a sufficient incentive to scale up in volunteering labor for peer review processes.
I'd wager that if any other discipline had this kind of arrangement going on, with a substitute labor supply and little professional cost -- and little apparent risk of externalities, like bridges collapsing or therapies misfiring as a result of any ensuing errors -- you would find little internal movement for reform. Besides, as pointed out upthread, it isn't clear that there is a decisive difference in terms of published accuracy.
Posted by: Me | May 25, 2012 11:22:49 AM
DHMCarver, my point was not to discuss the causality, it was to say that there are huge institutional barriers to switching. Regardless of why there are more law reviews, switching to a system that didn't allow simultaneous submission would require huge changes in how they worked and perhaps force a lot of them to shut down - there's a big incentive not to do that.
And on the "community" point, the fact that there are a lot more criminal law professors, combined with judges, practitioners, and students who also want to publish articles on criminal law, was actually the point I was making. There's a lot less incentive to "peer" review an article when it's likely to be for someone who isn't and never will be, functionally, a "peer."
Posted by: Katie | May 25, 2012 11:28:46 AM
While much of what was said above is true, it doesn't directly address why we haven't seen more peer reviewed law journals in the US. While it is certainly true that low ranked general law reviews benefit from the status quo (and, indeed, I would say depend entirely on it), some of the elite journals would probably benefit from moving to peer review—they would get exclusive submissions, the number of junk submissions would decline, the prestige of the journal in other fields would increase, etc. That they don't is most likely a combination of students unwilling to give up power and professors wary of taking on further responsibilities.
Implementing peer review more broadly would mean a dramatic change in the design of law reviews. Almost every journal would have to specialize in order to survive. There would certainly be some general interest journals left, but they would be the elite journals (the "Science" and "Nature" of the legal academy). I'm not sure the journals are willing to change so much, certainly not in the short term. So, unfortunately, I think we're stuck with the status quo for the time being, though we might see some changes at the margins.
Posted by: Charles Paul Hoffman | May 25, 2012 12:27:34 PM
Think of the time that peer review requires. Most social science and humanities journals state that peer review requires, at a minimum, 3 months. I think we can agree that this is a normative prediction on the amount of time it may take to have reviewers critique an article. I've heard of some fields were it is not uncommon to have to wait 6 or more months to hear anything from a journal editor.
I'm not saying that some law journals are not guilty of taking quite a long time to respond, if they respond at all, to an article submission. With law journals, however, there is the opportunity for simultaneous submission of that article. The writer may, therefore, get a bite from somewhere else.
Law is a rapidly changing field. The amount of time peer review requires can make an article obsolete very quickly.
Posted by: Jasmine McNealy | May 25, 2012 2:41:36 PM
The real part I find hard to understand is the lack of anonymity in the law review submission process. It's so different from the conventions of other fields and I have never heard a really compelling explanation for it.
Posted by: JKO | May 26, 2012 2:23:48 AM
What is also interesting is that in much of the rest of the common law world, law journals are peer-reviewed. Even the university law reviews of Australasia have peer review, with academics rather than students doing the reviewing. They are also shorter. Whether this is corelation or causation perhaps deserves more attention.
Posted by: Thomas NZ | May 26, 2012 5:32:40 AM
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