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.