US law reviews’ dirty game: review by student

In Times Higher Education’s recent feature on the vagaries of peer review (“On the receiving end”, 6 August), one of the essayists describes being subjected to the scrutiny of one’s colleagues as “the worst form of review, except for all those other forms that have been tried”. Lest any reader doubt this claim, let me explain what awfulness results when an entire field forgoes this traditional form of gatekeeping.

Submissions for almost all American general law reviews and for more than half of the specialised ones are reviewed by law students, selected by more senior law students based on their first-year academic performance. Unfortunately, however intelligent and ambitious they are, students just don’t have the expertise to judge the quality of submissions. As a result, an article’s fate is determined by the application of several superficial criteria.

First is the author’s name and affiliation. If she is unknown to the students and either does not teach (but, for example, works at a law firm) or teaches at an institution that places lower in U. S. News and World Report’s most recent annual rankings of law schools, they generally disregard her submission. Never mind that the U. S. News rankings are based on algorithms that embed highly subjective and controversial judgements.

Second, if an author’s obligatory CV indicates prior publications in journals at schools ranked lower in U. S. News, many students will deem her current efforts to be unworthy of consideration.

Third, students feel obliged to accept submissions by their own professors. This much is forgivable, I suppose. What is less forgivable is the professors’ willingness to put them in this position to begin with. They are in effect compelling the students to publish their work, no matter how weak it may be, thereby monopolising the few available slots in their own schools’ journals. This is just one more reason to doubt the common assumption that the most original and insightful legal scholarship can be found in the highest-ranked law reviews.

Fourth, students typically prefer some areas of law over others, based not so much on informed legal judgement as on the politics of the day and what they happen to perceive as simpler, more “colourful” topics.

The power afforded to law-review students – especially those at the top 20 schools in the U. S. News ranking – is quite excessive. And many law schools only reinforce their defective publication standards by providing significant financial incentives (sometimes tens of thousands of dollars) to academic faculty who publish in the top-ranked journals, while many professors decide both who to hire and which articles to read and cite entirely on the basis of where articles are published.

As if all this were not troublesome enough, there is an even seamier side to the law-publishing game. I publish in both law reviews and philosophy journals. In philosophy, the offer to publish basically ends the process. I merely make a few more tweaks, submit the final proofs and expect to see it published within a few months. Not so with law journals.

Suppose I receive an offer to publish from a law journal at a school ranked 95th in U. S. News. The fun has only just begun. I now try to “trade up” to a higher-ranked journal (although not too much higher – that would be perceived by the student reviewers as delusional conceit). I tell all the higher-ranked journals up to a certain number – say, 65 – that No 95 just made an offer to publish and ask them to expedite their review of my article. So if, by No 95’s decision deadline, a journal at a school ranked 75th makes me an offer to publish, I then tell No 95 that I am rejecting its offer and start the “trading up” process all over again, this time with journals ranked higher than No 75.

It is a silly, dirty, ugly game – somewhat like dating without the slightest bit of tact. Authors are incentivised to use lower-ranked law journals as leverage, while the students at higher-ranked schools are basically letting law students at lower-ranked schools screen articles for them.

You might well ask how such a distasteful, irrational system ever came to be. The answer is, quite frankly, that most law professors are too lazy to review articles themselves. I recall a prominent Columbia Law School academic’s amused astonishment when I told him that philosophy professors typically volunteer their time to review anonymous submissions for journals.

In the end, only professionals – legal academics, lawyers and judges – are genuinely qualified to review legal scholarship. So I propose that legal academia follow the philosophy model by reducing the number of law reviews and inviting these professionals to serve as referees for those that remain. The honour of being selected to serve, plus a sense of duty to the academic community, are sufficient incentives in philosophy; given that legal scholars and practitioners are generally paid much more than philosophers, these should be sufficient incentives for them too. Alternatively, every law professor, lawyer and judge in the US could be encouraged to contribute to a fund for paying reviewers.

I have heard many of my fellow law professors complain about law journals’ unfair, perverse standards. But if they really want to change the system, they are going to have to step up and offer to take control of it themselves. Until then, they are voluntarily submitting themselves to the absurd tyranny of referees who are far less knowledgeable than they are.

Ken Levy is Holt B. Harrison associate professor of law at Louisiana State University.