05 May 2004

The Law Review Revue

Professor Ribstein muses this morning on the value of law reviews. My pre-law-school background was in two disparate fields in which everything considered of value is peer reviewed.

I will freely admit that I don't like pure peer-review systems. First of all, they are seldom blind. (That law reviews should also do blind reviews is beside the point.) Second, as Professor Ribstein notes, they are slooooooooooooooooooow, which is particularly worrisome for junior faculty members staring at a tenure deadline. But these are process issues that can be solved. What cannot be easily solved is the extreme unwillingness to extend knowledge reflected in peer reviewing, especially outside of hard-data natural science journals (such as JACS). The bias in peer-reviewed journals is toward filling small gaps in existing theory. This is the very nature of the process, because professors doing the peer reviewing, as a group, don't like revolutions that might impair their own standing. I have had too much personal experience with and observation of the peer review process in the humanities to believe that the kind of intellectual honesty required to deal with revolutionary assertions and give them a fair evaluation exists in more than one in four or so of the kinds of professors who end up doing peer reviews.

There. I've said it. The humanities have become coopted by personal interest (and political agendas). So much for finishing that PhD—it won't do any good now…

In any event, Professor Ribstein also refers to the "marketplace of ideas" offered by student-edited law reviews and SSRN. To my idiosyncratic way of thinking, this is the correct view. However, SSRN is a complement to, and not a substitute for, law reviews. Until the Blue Book is no longer the dominant/required method of citation in the law, with its outdated and anal-retentive system for pinpoint citations, "draft" papers on SSRN are going to remain unciteable. Of more import, SSRN limits itself by its nature to academics. This only reinforces the cultural divide between practicing attorneys—including judges—and academic law, to the benefit of neither.

Too, the student editorial boards represent the most-appropriate target for law reviews: the inquisitive but inexperienced individual with a legal education. Communication is better at this level. A random check of SSRN papers that I've downloaded—ok, it's not a random sample, but bear with me—confirms this. Several "big name" professors have posted papers on SSRN that seem to be filled with interesting thoughts and analysis, but are so poorly written, or fail to explain steps in the analysis—often because the writer "already knows" that stuff and omits it in the name of brevity—that they are almost worthless. This results in a true failure to communicate—and ideas are not worth much if they cannot be understood by others. There are similar problems with some law review articles, true; I recall one on which I worked as a 2L student editor that was so incoherent and self-contradictory that it simply should not have been accepted for publication. However, having to convince a board of student editors that an article should be published at least adds a check to the system.

The irony that law, almost alone among the academic disciplines, rewards original thought less than it does the ability to prove that somebody else already said something has not escaped me. It sure seems to have escaped most legal academics, though, as demonstrated by the articles with more footnote text than running text. On occasion, a "review of the state of the law" article will require such treatment; but the "400 footnote barrier" is not, on balance, a good thing. Sorry, guys, but this is not "research" as scientists understand the term—which sure as hell doesn't help academic lawyers deal with the scientists in university bureaucracies.

So, in the end, I think there is a place for all four varieties of writing to advance the state of the law: the peer-reviewed journal; the student-edited journal; SSRN; and, on occasion, the appellate brief. That the last of these must also conform to a client's best interest limits its audience and its application. Nonetheless, it can be gratifying to have a court quote (or even paraphrase) extensive sections of one's brief on a mixed question of law and policy; and anybody who thinks such opinions escape scholarly notice doesn't know that much about law professors, even if they don't know the source.