Legal Commentary

In response to a lot of interesting and important thinking about law reviews, law schools and legal education this past week, for example here and here, I thought I would try and offer a partial defense of the-way-things-are-right now on the law review front:

1. Don?t romanticize the alternative: When one begins to publish in the peer-reviewed world, the whole romantic notion of blind review becomes somewhat tainted -- in all of the fields I am familiar with -- psychology, economics, business, political science, history and sociology reviews (and also in the fields I am less familiar with, according to my hard scientist friends)  -- there is still A LOT of noise in the system: because of conferences, networks, SSRN and the like, it is VERY easy for reviewers to figure out who the authors are. There is a lot of tit-for-tat -- same folks publishing and editing in the A-journals in their fields. To think that a top name (the Cass Sunstein equivalent in any one of those fields) does not impact the decision of her peers is naïve. And even more so because the double blindness from the author's side is also often tainted -- at times, people can guess pretty easily (or hear about it in the process) who the reviewers are. At least with law review editors, the repeat players "problem" is ameliorated--but of course repeat players have many strengths as well in terms of expertise and knowledge about the field and quality of scholarship.
2. There are in fact quite a few law or law related peer-reviewed journals so we are already in a world of choice and a world of competition.
3. Law reviews themselves do consult quite frequently it seems with faculty advisors on accepting pieces. It is also my understanding that some of the top law reviews, like the Harvard Law Review, do really have blind review process, and their process is a multi-layered, multi-tiered serious one.
4. The law review kids actually offer a lot of good editing after the article has been accepted, often better, and most of the time involving more eyeballs, than those of peer-reviewed journals.
5. I suspect many law professors, like other faculty, would not like Ann?s suggestion to take away the prestige, the wins and losses of the game, of sending out one?s article to journals outside one?s own institution. Our work is intangible enough to not want to give away some passing rewards and signals of success however noisy they are. This is similar to suggesting that we do away with rankings ? we should keep rankings, just make them far more meaningful. Remember, type A people strive on competition.
6. There is something really cool about the speed and timeliness in which law reviews make decisions and then publish articles. Peer-review articles often take years upon years to come out and the review process may mean that things are not relevant by the time the article sees the light of day.
7. There is also something cool about law review editors having some productive ignorance. It's ok if they sometimes get things ?wrong? ? its part of what shakes things up, puts some off ideas on the frontlines and disrupts some of the inner-breeding and self-referential work that at times stales the legal academy.

Bottom-line, the baby water and the baby have some advantages.

cross posted at Madisonian.