Academic

Lipshaw on Many Things

By Lawrence Solum

The always interesting Jeff Lipshaw has a final post up at Concurring Opinions.  It deals with many things, but I was particularly struck by this:

[O]ne criticism of law reviews is that they are edited by law students, and because the law students really don't know what they are doing, much of what appears is garbage (by the way, I should note that the garbage Mike skewers sounds a lot like what I do!). But the garbage is submitted by law professors, who presumably would be the peer reviewers if the system were replaced by peer review. All of which means that there must be some elite within the discipline that is the ultimate judge of quality. But how did they get to be the judges? Is there an immanent Truth to which they have access? This is all very tough stuff. (I may have this slightly wrong, but I am recalling the description of the process by which the early American Puritan Congregationalists were admitted to whatever it was that they were admitted to - as deacons, members, saints, whatever. Once the church leadership was in place, those individuals could decide who else got in. But how did the first ones establish their credentials? Apparently two elders would get in a room and battle it out mano-a-mano and then certify each other. In Mike's piece, the analogous process has to do with the founding of the Harvard Law Review.) Anyway, that's scholarship.

Of course, Lipshaw is right--there is no magical guarantee of higher quality from peer review.  And in fact, peer reviewed journals in other disciplines very in equality--from wonderful (or at least "wonderful by mainstream standards") to awful (or perhaps "awful by mainstream standards").  Moreover, even elite peer-reviewed journals occaisionally make serious errors--accepting articles that display ignorance of important literature or make a bonehead mistake.  But on the whole, I think it is pretty clear that the peer-reviewed journals do a better job of weeding out really bad scholarship than do student edited journals.  Student-edited law reviews are likely to do the best job when dealing with submissions that can be evaluated using the skills learned in the first year of law school--that is "case crunching," "code crunching," and "clause crunching."  In my experience, the errors are much more likely to occur in the selection of articles that involve skills, tools, and methods not explicitly taught in the first-year curriculum--empirical methods, economics, positive political theory, political and moral philosophy, and so forth.  In the world of peer review, this problem is handled by specialist journals.  Law and Economics journals are edited by legal economists, law and philosophy journals by those with expertise in philosophy, and so forth.  If generalist peer-reviewed legal journals every really take off, referees will be selected (at least in part) on the basis of their expertise.

I've gone off on a tangent, but enjoy Lipshaw's post.

Full post as published by Legal Theory Blog on January 12, 2008 (boomark / email).