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Friday, July 20, 2007

Law Reviews as Movie Studios

Here's a metaphor for the law review article selection and distribution process. 

Hollywood has a problem in that there are many risk-averse television or movie producers. They don't want to lose their jobs for greenlighting a flop, so having a star already attached gives them a little security, especially when something about the story is innovative or unusual.   In the absence of a star, they gravitate to the same old stories, ones that are “proven” successes, though of course, the science of identifying what those tried and true elements are is weak and often fails.  So it's not all identical, but a lot of very familiar stuff gets churned out year after year.  Sometimes a studio will take a big risk, even without a star or famous director, but it’s rare.

In the legal scholarship world, the “stars” are famous law professors, and stars get attached to projects by either writing them or strongly recommending them and appearing in the dagger cites.  The articles editors are like the producers.  Largely very risk averse, but with a few exceptions.  Of course, any law review can have an editor who is less fearful and manages to push an unusual project through. My sense, though, gathered from time on the Yale Law Journal as a student and numerous conversations with students on other law reviews, is that Yale Law Journal and Harvard Law Review are the two that consistently have multiple such editors. Many of the students at those publications seem seriously willing to take a gamble because they are so confident/arrogant, they have much less fear of greenlighting a flop.  They are like New Line, which agreed to finance all three Lord of the Rings movies, with no major stars and a director who had previously made an arty, lesbionic movie that barely anyone saw. Or perhaps they are like the Weinstein brothers, who financed Farenheit 9/11.  (Note that one of the persons who greenlit Lord of the Rings, Michael de Luca, got fired from New Line anyway, before the movies came out, apparently on the basis of poor box office.)

But like the risk-taking studios, even YLJ and HLR hedge their bets by overwhelmingly picking projects with stars attached or typical fare.  Thus, articles that tell an unusual story, or are very ambitious, but don’t have an attached star, have a big problem, and tend to land with law reviews that are pretty low down on the totem pole—below the “top 50.”  I suspect most of the time these law reviews are not excited to publish the unusual pieces; they are getting stuck with them.

Paul extended the metaphor for me by suggesting that sites like SSRN can be compared to YouTube and other challenges to the entertainment business model, and that the online adjuncts to the traditional law reviews may be seen as ways in which the old guard is trying to co-opt the new models.  And maybe the faculty edited journals are like getting your movie into Cannes? (Credibility is guaranteed, but good marketing is not.)  Are there other ways to extend the metaphor?  A version of this problem also exists in the faculty hiring process, with appointments committees standing in for the producers.

In any case, I don't think the answer to this problem, if there is one, is to get rid of most student edited law reviews.  As the entertainment industry and faculty appointments process show, the problem exists when you have people with supposed experience and expertise making the decisions, too.  Indeed, the problem could be worse, in theory, with peer-reviewed journals than student-edited ones, since the reputational harms don’t really stick with the students, who cycle through the editorial boards rapidly.  Producers have their jobs to lose, and faculty editors normally stick with a publication for at least a few years, so they run a realistic risk of reputation loss.

On that note, it’s a bit of a puzzle why the students behave this way at all.  Why do they think anyone is going to remember them for having greenlit a flop of an article?  But the fact is that I have seen many of them talk and behave as if that is the case. They largely do not act as if they don’t care. They just act afraid. I think one way to ameliorate the problem is to help our students feel more self-confident, and to remind them that they really can make judgments about merit, especially with the help and advice of their professors, who should discuss submissions with them as equals. Sure, we have faster and more reliable access to certain forms of information that is useful in judging merit than most students do, and that’s why they should use us as an important resource.  But when we exaggerate our own expertise, and their lack thereof, we can make them feel so inadequate they start focusing on entirely the wrong thing.

Posted by Gowri Ramachandran on July 20, 2007 at 03:44 PM | Permalink

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Comments

True that it's a puzzle why student editors are so risk-averse about bad articles. What makes the puzzle even harder is that a "flop" in Hollywood--a movie that simply fails to draw attention--exacts massive costs on the studio and/or investors. By contrast, an article that "flops"--by which I mean gets no attention--simply falls off the radar screen and is ignored. It adds nothing to the journal's reputation, but neither does it exact massive costs. In the aggregate, flop after flop would end up hurting a journal's reputation, I suppose, but still, the costs of a non-successful movie relative to its producers are much higher than the costs of a non-successful article to its law review editors. An exception might be an article that is somehow disastrous, either because it was largely plagiarized or makes a point that is obviously and demonstrably wrong--but these kinds of results are rare and would likely be weeded out in the editing process anyway.

Posted by: Dave | Jul 23, 2007 2:23:22 PM

The movie studio analogy accurately describes your premise, but I don't think that this process of decisionmaking is unique to law reviews or movie studios. Rather, it happens whenever (1) decisionmakers have highly limited time and competency, and (2) decisionmakers have someone looking over their shoulder setting up the incentives such that they're more interested in avoiding bad decisions than making good ones.

On (1), the average person doesn't consult chemistry journals when choosing what type of toothpaste to buy. Presumably, the article selection process is slightly more important to students than this, but given their limited time and limited competency to evaluate scholarship with any depth, students are likely to be much more comfortable looking to signalling mechanisms like star power and expedited review than they would be trying to evaluate the work of a professor. Much of the bad scholarship is obviously bad, and much of the mediocre scholarship is obviously mediocre, but in whittling a pool of 100 facially acceptable articles down to 10, signalling mechanisms probably unavoidably do much of the work. The same is true of many other similar situations. Judges who select law clerks use similar processes, not so much because they're afraid of hiring bad clerks, but because they don't have 365 days a year to spend evaluating candidates.

On (2), I think the post describes the phenomenon accurately, but I don't think it's the least-bit unique to movie studios or law reviews. Lots of decisionmakers are risk-averse when they have people looking over their shoulder in a certain way. When the CYA impulse is driving a decision, the decisionmaker relies on objective criteria (e.g. star power) that make a bad decision seem explainable, even if those criteria have only a loose correlation with good results.

Politicians can be more daring when they're not up for reelection, inside counsel tend to hire better-known law firms to handle high-stakes stuff... how many people would know who Monica Goodling is if she had gone to Harvard instead of Regent?

Posted by: clerk | Jul 23, 2007 9:47:11 AM

Nice point about students working on articles they like; fix that aspect of the matching, and everyone involved will be less grumpy about the editing process. I should also have made it clearer that I agree with your post, once the fact that the scholarly treat law review placement as a major signal of quality is a given.

Posted by: James Grimmelmann | Jul 21, 2007 9:35:15 PM

James,

You are completely right. I'm always trying to make the same point with others, but still find myself fretting from time to time about "placement" for my own work. It's pretty hard not to develop at least some interest in how it all works when one wants one's work to be read widely under the current circumstances.

But to the extent more students could feel like they are doing all that work on articles they actually like, the experience might be nicer for them, too.

Posted by: Gowri Ramachandran | Jul 21, 2007 4:28:23 AM

Jeff Yates' reference to this comparison as a "set of analogies" strikes me as more accurate than describing it as a metaphor.

Posted by: Patrick S. O'Donnell | Jul 21, 2007 12:04:29 AM

The difference between the movie industry and the law review system is that tons of plausible movie projects never get picked up at all, whereas any piece of scholarship can be published somewhere. Given that fact, student editors collectively are doing nothing wrong, selection-wise. They polish articles into a standard format and make them available to the world.

If there's something wrong with great articles being published in non top-50 journals, the fault, dear scholars, is not in our editors but in ourselves. It's our mistake to treat the top 50 journals as somehow "better," when we should be focusing on the scholarship itself. If the great article published in a non-prestigious journal is ignored, it's our own fault for ignoring it. The system of student-edited law reviews did exactly what it was supposed to: publish it.

Worrying about the selectivity and biases of student editors is a waste of time. There are enough law reviews that a good article will still be published even if most editors fail to appreciate it. We should worry instead about the profession's bias against scholarship that's published in the "wrong" journals. If YLJ and HLR publish the wrong scholarship, better to stop overvaluing the brand name on the cover than to berate the editors.

Posted by: James Grimmelmann | Jul 20, 2007 10:52:55 PM

To this set of analogies I might add the "hot trend" dynamics of the movie business. Unusual or cutting edge films might have a hard time making it, but if one does and gains a lot of attention, then typically lots of studios are eager to jump on the bandwagon. So, when Tarantino hit with the innovative films "Reservoir Dogs" and "Pulp Fiction" many similar (and often bad) movies in this style followed.

Similarly, when a novel or cutting edge topic, method of analysis, or view "breaks the barrier" in academia and gains attention and notoriety, we usually see a flurry of similarly inspired or styled scholarship. Whether this phenomenon is good or bad is a tough question. It likely that it does change the selection of submitted manuscripts and in that capacity may pose an intriguing question - is it all about editorial discretion? Certainly editor discretion matters, but if submitters, on average, began changing the direction of their academic approaches and/or topics, might we see a different mix of articles in print? On a related note, might a "hot trend" in an academic discipline change the mix of relevant "stars"?

Posted by: Jeff Yates | Jul 20, 2007 4:27:54 PM

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