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Thursday, April 06, 2017

law reviews, the law schools that house them, and the academy that depends upon them

It's common for legal academics to complain about law reviews. Some law professors might defend the model of the student-edited journal against the differently flawed model of peer-edited journals owned and operated by for-profit firms. But I would estimate that nearly zero legal academics go through their careers without some frustration about something that occurred in publishing a law review article -- the submission and selection process, editing, footnotes, etc. -- and no one would characterize the current model as perfect.

I want to consider the model's flaws by asking what could we, rather than the editors, do? 

We could, I think, look to and at ourselves.

I am completing my first year as law review advisor. I have been struck, for no reason other than my previous ignorance, by the student editors' commitment to their work, to their journal, and to the contributions they make to the field by their efforts. Rarely do our frustrations come from the students’ apathy or lack of effort. 

I have also been struck by how little structure there is for the students' work. From what I can tell, there isn't much communication among journals[fn1]; there are minimal spaces for discussion among journals about shared issues; there are few easily available shared forms (e.g., for publishing agreements with authors); and, much to my shock, there is neither an AALS-sponsored committee or interest group nor even a listserv for law review advisors. Executive editors at law reviews serve for one year, their last in the law school, and then move on. Their incentive is to do a good job with their volume using the tools, bylaws, and processes handed down to them from the previous editors. They make incremental improvements to the journal, enjoy the camaraderie of their peers under the shared burden of their work, and, hopefully, get to partake in the fruits that the law revuew credential promises. They have very little incentive to think big thoughts about the institutions and processes of law reviews. 

By contrast, the faculty and administrators who depend upon the reviews to publish and distribute their scholarship at remarkably minimal cost to themselves and their libraries have every incentive to think big thoughts and do something. And yet they/ we too rarely do.

A quick example. In the past year, the journal I advise faced a question about its internal operation and another about the royalty rate one of the commercial legal research databases offers to other law reviews. Figuring out how to address these issues required more than internal deliberation — the journal needed information about what other journals and schools do. There was neither institutional support among the law reviews nor any from AALS to gather this information. To their credit, the law review editors did their best to contact editors at other schools to try to gather information so that our school’s journal could figure out the best way to address the issue and the best way to negotiate with the database. But the information is incomplete and somewhat random — not just noise, but certainly not data, gathered at the expense of great labor. If something like this arose for law school administrators or faculty, they would have numerous resources to which to turn to learn best practices. The students had none.

My goal here, and in some follow-up posts, is to try to get legal academics and law schools to take greater responsibility for the publications that provide the lifeblood of what we claim is of paramount importance, scholarship.[fn2] For understandable reasons, the students do not have the time or incentive to create enduring structures and processes that can help tame and rationalize some of the irrationalities of law reviews' selection and editing of academic work and their operation. Some of the sources of our complaints regarding law review practices can be attributed to this lack of structural support and oversight. It’s up to administrators and faculty to support the students’ work.

[fn1] There may well be significant communication among peer journals, especially those at the very top, via existing institutions like The Bluebook or existing social networks from college and high school that leads elite law review editors at different schools to know each other. These institutions and networks are far less prevalent for editors at well-regarded regional schools. Yet the law reviews at these schools (and, really, all law reviews) provide crucial labor in identifying scholarship that elite law reviews then poach. Viewed more broadly, they also provide essential means for new and non-traditional forms of scholarship and scholars to see the light of day. The law review universe is an ecosystem whose parts depend on each other, but like so much of the legal academy (and legal practice), it is highly stratified.

[fn2] I recognize that scholarship’s degree of paramount-ness, and whether it should be paramount at all, is contested; but under the current and still quite functional law school model, we are housed in universities, virtually all of whom at least claim that scholarship is one of their key products and the preeminent means to evaluate faculty.

Posted by Mark Fenster on April 6, 2017 at 02:31 PM in Life of Law Schools | Permalink


Came for the comments.

Was not disappointed.

Posted by: Derek Tokaz | Apr 11, 2017 9:26:09 AM

Hahaha. dan overstates his case, but instead of simply admitting it he accuses you of voting for Trump.

Posted by: YesterdayIKilledAMammoth | Apr 9, 2017 9:01:47 PM

"If you are still using unpaid interns, I hope the DoL catches up with you quickly. "

I really hope you don't teach labor law if you think unpaid interns are per se unlawful...

Posted by: D.C. | Apr 9, 2017 5:49:17 PM

If you are still using unpaid interns, I hope the DoL catches up with you quickly. Though who given the guy you voted for won, you'll probably be okay for a while.

Posted by: dan | Apr 9, 2017 5:35:00 PM

Quick, we need to let every unpaid intern know that they have no responsibility to be professional. dan said so!

Posted by: YesterdayIKilledAMammoth | Apr 9, 2017 4:35:58 PM

Yo, dan | Apr 9, 2017 9:47:38 AM, man, "danny", if I may,

I ain't complaining.

I like the student editor system as it is (although, I'm with D.C. I'm happy to do peer review and am already on multiple peer review boards (which is why i think it presumptuous to think that those of us who enter the student editor market aren't also doing peer review)). I have had exceptional experiences with student editors, who have worked diligently on my articles. Some lazy ones have been in the mix. But my overall experience has been one of delight at the young people I've met, their intensity, respect, and responsiveness.

My post made observations about the current system but was mainly meant to infuse corrections to some of the defensive posturing of several posts above. In my opinion, if a student takes up a responsibility that involves other human's lives and professions (no matter what that responsibility is, but in this case specifically focusing on editing), s/he has the obligation to do an excellent job. There ain't two ways about it; with the ordinary qualifications that health, family, and the like come first but then someone in the chain of bureaucracy has to be informed of the anticipated delay.

I didn't mean nottin' more dan dat.

Posted by: anon | Apr 9, 2017 10:53:36 AM

"How about you start peer reviewing -- a key duty of your well paid job -- before you start throwing stones at the professionalism of the unpaid."

I would love to! Let's let law reviews move to a peer-reviewed system and I will be first in line to do my part. It doesn't have to even be an all-or-nothing affair; let some individual law review announce publicly (I'm sure prawfsblawg or thefacultylounge will publicize it for them) that they are moving to a peer-reviewed system and I will literally volunteer the second I see it. I do plenty of it informally for my colleagues (and yes, it sucks up hours but I consider it a professional obligation).

One possible institutional system is where each law professor in a school should be required to read the titles and abstracts of 50 articles, skim the ones that look more interesting, then read the ones that are definite candidates. They could then inform a coordinating editor on the law review which ones they are recommending for further student review, which ones they are not. That way students keep their vaunted autonomy, but actually get some guidance.

I know it might cut into the professorate's minimal publishing requirements and 2 classes a semester, but I think it's worth the terrible cost.

"Anon/D.C's complaints rather remind me of a college football coach earning millions of dollars exploiting unpaid workers bitching and moaning about his players' work ethic."

I'm just complaining that they're not showing up for the game they voluntarily put the uniform on for. And I concur with everything anon@9:35 says, except that I think for a large percentage of law schools, membership on law review won't necessary be much of a career advantage considering the dismal state of the entry-level market.

Posted by: D.C. | Apr 9, 2017 10:17:20 AM

I don't think it is true in general that credit hours awarded for law review work come with a tuition discount.

Anon/D.C's complaints rather remind me of a college football coach earning millions of dollars exploiting unpaid workers bitching and moaning about his players' work ethic.

If you don't like the professionalism of the student journals, you the actual professionals, are free to start your own journals like every single last other field in the entire academy, the overwhelming number of which pay less.

Posted by: dan | Apr 9, 2017 9:47:38 AM

I think the current system is probably the best system. Honestly, I think if we could move to peer review (and I doubt we could -- law professors don't want the job of slogging through all these submissions), I worry we'd have even more ideological bias in the selection process. Lord help the law professor's who's latest article isn't towing the ideological line! I think students are largely blind to that sort of thing; other academics, not so much.

Where I do think there's a place for improvement is with Scholastica/ExpressO. I think the journals should not have unfettered control over when they start accepting submissions, but should instead have to reach out to Scholastica/ExpressO with some proof that they are set to start reviewing. Then at some point, all submissions will close unless the journal can prove that they are still reviewing. There's too much money wasted in submitting to journals that aren't even reviewing.

I also wish there were a way to incentivize editors to respond to all submissions. Maybe if ExpressO/Scholastic indicated for each journal what their response rate is (sort of like a seller rating on Ebay) at the time of submissions, prompting journals to aim to improve their score. Or if Scholastica/ExpressO would somehow reward journals whose response rate rises above a certain percentage.

Posted by: LawProf | Apr 9, 2017 9:35:45 AM

Student editors aren't working for free. They get credit hours for which they don't pay. Furthermore, the value of having "Law Review" on a resume is worth at least tens of thousands of dollars (and probably hundreds of thousands of dollars).

3-4K articles is a grandiose figure, which law reviews often quote, but it is completely misleading. Many of those 3-4K are articles no editor ever reads (they are withdrawn, the students never get to them, etc.). Many of them are so poorly written that the editors never get beyond the first page or two, if they read beyond the abstract. Furthermore, at a top ranked law reviews (Michigan, Harvard, Stanford, Vanderbilt) there are 70-100 editors (approximately the same is true all the way down to the T50 journals although there the number may be more like 60 to 80 editors). At some journals, it is the 2nd yrs that do the original vetting. Ten or fifteen articles per person each isn't too much (the full board doesn't read many articles, and let's face it most articles strike aren't considered beyond the introduction during the original vetting process). Even where articles editors do the first look vetting, they don't typically read the full article but only a part of it.

Finally, if one takes on a responsibility, even if it is volunteer (and as I said student editor work isn't volunteer) professional standards apply (think of pro bono atty work).

Posted by: anon | Apr 9, 2017 9:35:24 AM

This is mostly in response to the anon seeking to "strongarm" student editors into timely replying to his/her piece. I'm a former LR editor. I'm also faculty, and I have a PhD so have also reviewed for and published in peer reviewed journals.

The main issue with trying to strongarm student editors into getting back to you (beyond the obvious issue of strong arming people who are doing volunteer work that benefits you) is the fact that journals get thousands of submissions. When I was an editor we'd get around 3-4,000 submissions/year, all clustered around the two submission seasons. Student editors are also full time students, and there's simply not the bandwidth to deal with that many articles, at least not in a meaningful way. Rather than strong arming student editors, something should be done to deal with the fundamental issue in law review publishing: simultaneous submission. It leads authors to submit to dozens of journals simultaneously, effectively creating a huge amount of wasted work in the system.

If you reckon that law student labor is worth ~$20/hour, you'd find that the law review system wastes millions and millions of dollars having students read articles only to have them either scooped by other journals, or to give offers and have the authors ratchet up the rankings using the expedite system.

People who respond to critiques of the LR system by saying that peer review isn't perfect are letting the perfect be the enemy of the good (or the better in this case). Peer review has its problems, but it is in so many ways superior to the mess that is law review publishing that it is hard to defend the status quo. Some sort of mixed system, with experts doing peer review and students doing the editing would be a great improvement. This would of course quickly result in rules discouraging simultaneous submission, because faculty wouldn't put up with having their time wasted as the students currently do.

Posted by: Another_former_editor | Apr 9, 2017 9:08:51 AM

The very definition of professional is someone that gets paid to undertake an activity.

How about you start peer reviewing -- a key duty of your well paid job -- before you start throwing stones at the professionalism of the unpaid.

What chutzpah!

Posted by: dan | Apr 9, 2017 8:05:08 AM

If the law school is funding the journals, it would seem to have significant leverage over their operations. I suspect, though, that subsidies are from the dean's offices are usually pretty low. My own School gives $25,000 per year to the main law review, and only $5,000 to the two specialty journals, according to the publicly available budget figures. All the same, I think the threat of withholding such modest sums would be quite meaningful should faculty ever wish to assert control. in my experience, though, they don't . We, like everyone else, seem to have a very strong culture & history of viewing the journals as student organizations, independent of faculty meddling. Plus, the professional incentives of a faculty adviser playing an active role in the journal management -- essentially zero.

Posted by: Jason Yackee | Apr 9, 2017 7:52:54 AM

"How many resumes cross your desk exactly?"

A couple, here and there, but not really relevant to my point; it wasn't a "threat," it was an observation. In both academia and legal practice you should care about your reputation for professionalism.

Posted by: D.C. | Apr 9, 2017 12:11:10 AM

Seems like kind of an empty threat, no? How many resumes cross your desk exactly?

Posted by: dan | Apr 8, 2017 10:05:02 PM

"Former Editor," pray tell us what I am mistaking about the "review process."

If you're stating the specific individual whose resume I am throwing in the garbage might not have been the one responsible, I don't care. They are at least partially responsible for propagating an unprofessional practice.

I am happy with my placement. I am not happy, however, with laziness or discourtesy. If you are not reading a paper because of time, because you don't understand it, or because you are so desperately in over your head you have to rely on the far easier-to-understand CV, fine. Select all those articles on Scholastica or Expresso and click reject.

Posted by: anon | Apr 8, 2017 9:32:46 PM

To the anon poster @ 4/07/17 3:04pm -- It seems from your comment that you are not just "vindictive" (read: petty) but also fundamentally unfamiliar with the review process at the top journals. This may help explain what happens to your submissions as well.

Posted by: Former Editor | Apr 8, 2017 10:07:18 AM

Asking for the author's c.v. is plainly a concession that the student editors cannot evaluate the article. If so, why do the student editors continue to select the articles?

That said, I think the student editors do excellent editing.

Posted by: anon | Apr 7, 2017 8:30:48 PM

Is there any good reason other than path dependency to have students drive the process in the first place? I know law professors don't want to do peer review and the free labor is free labor, but what about at least dispensing with the "adviser" title and switching instead to a professional with a "publisher" title? I don't see that the students would take a prestige hit as the prestige is mostly a reflection of the selection process rather than the work.

Posted by: jake | Apr 7, 2017 4:41:38 PM

One simple fix would be to strongarm student editors into responding to all submissions, even if it's to reject them, in a reasonable amount of time. This is one frustrating aspect of the law review process that they are culpable for; considering how many editors there are at the typical law review, there is no excuse not to get back to submitters and that kind of silence is unprofessional.

I might be more vindictive than the average person but if you served as an editor that never responded to one of my submissions I will absolutely hold it against you if your resume ever comes across my desk.

Posted by: anon | Apr 7, 2017 3:04:09 PM

An important set of questions/issues, Mark. The systemic dysfunction will take institutions to mend, but we don't yet have those institutions.

Posted by: Joe Miller | Apr 6, 2017 6:53:33 PM

I'm relatively new to this, having transitioned to the other side of the podium recently, so most of the issues I've run into so far are submission related. After spending an completely unreasonable amount of time over the past several weeks thinking about how the process could be better (I'm certain I'm in good company), I think some sort of hybrid of exclusive and open submissions could go a long way in improving the process for authors and journal editors. For example, some system in which each author could submit to no more than 25 journals at a time, with the promise that the first journal in that tranche to make a publication offer within a certain period of time (say 2 weeks) gets the article. No expediting. After that time, the author can submit to additional journals and is under no obligation to accept an offer from a journal in the initial group to which she submitted. This would force all of us to be realistic about placement (I'm probably not going to waste one of those 25 slots on HYS for most articles I write), and would also let the editors focus their energies on a smaller group of articles without worrying about losing them to expedites (of course, they might lose articles to other journals to which authors have submitted, but I think this would push them to get offers out faster). Obviously, this is not perfect, and implementation would be difficult. I also don't think this works in the world of Scholastica and ExpressO, so maybe a unified submissions system is, on a more fundamental level, what we need.

Posted by: anaon | Apr 6, 2017 5:37:32 PM

Hey, we had the same question about royalties, and faced the same hurdles! We never did get an answer.

Posted by: Michael Risch | Apr 6, 2017 3:04:21 PM

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