The competence of students as editors of law reviews: a response to Judge Posner.

• Author: Cotton, Natalie C.
• Position: Response to Richard Posner, Legal Affairs, p. 57, Nov.-Dec. 2004, Stanford Law Review, vol. 47, p. 1131, 1995

INTRODUCTION

Judge Richard Posner and others have critiqued American law reviews for being run by students. (1) They claim that students do not have the necessary depth of knowledge that faculty have, nor the requisite experience editing scholarly work. (2) In many cases, the students reviewing or editing an article have no knowledge whatsoever of the article's topic, nor any experience at all editing another's work. As a result, it is said, students are ill-prepared to take on the collective role of "gatekeeper" to America's legal scholarship. If this is true, the value of student-run law reviews must inhere in some nonscholarly aspect, such as providing a recruiting mechanism for employers. (3)

This argument seemingly creates an anomaly: law is a broad and important discipline, yet the organizations that publish its scholarship are geared toward nonscholarly goals, and are not competent to address the scholarly ones. If this is indeed the case, it is a wonder that the "atrocities perpetrated by law review editors" (4) are not more widely protested. But this cannot be the case.

This Comment argues that, while students do encounter challenges in running scholarly publications, they are quite competent to select and edit legal scholarship. Students do have low knowledge depth, and the capabilities of individual students vary considerably. However, law reviews as organizations have created processes that make these weaknesses of students much less significant. Student-run publications achieve their scholarly goals by publishing a portfolio of articles--and do so regularly.

That is not to say the law reviews are perfect. To the extent that specialized knowledge and editorial experience confer unique efficiencies, (5) these are efficiencies that most student-run publications cannot capture. However, other efficiencies are created through the process of checking for article preemption and multiple-round editing. These efficiencies outweigh the negative repercussions of having students as the gatekeepers to America's legal scholarship.

Part I of this Comment presents the criticisms that Judge Posner and others have advanced, with some initial thoughts about what that implies for the fundamental role of law reviews. Part II presents the article selection process in light of Judge Posner's critique, while Part III addresses the concerns of many professors that article placement is critical to one's career. Part IV reviews the editing process, especially in light of criticisms by Judge Posner and others. In conclusion, I maintain that, by their processes and procedures, law reviews contribute to a robust and innovative body of legal scholarship.

The reasoning and argument in this Comment encompass all student-run legal publications. Previous literature on student publications addresses "law reviews," but in this context the term is often used as a catchall for both general-scope law reviews and specialty law journals. This Comment will also use the term "law review" broadly, referring to all scholarly student-run legal publications.

I. JUDGING LAW REVIEWS

1. Complete Incompetence?

   It is widely assumed that authors, especially professors seeking tenure, care where they place articles. This is because the prestige of the journal in which an article is placed is somehow a signal of the article's quality. As Professor Hardy notes, "the academic profession, the practicing bar, and judges, all tend to treat articles in certain reviews with more respect than others." (6) But why?

   Some commentators emphasize that student-run law reviews exist for educational or other purposes. (7) If education of student editors is the purpose of the institution of law review, and these editors are not competent to select and edit articles, then it cannot be meaningful or prestigious to publish in any particular law review. (8) No matter how good an educational experience a review gives its members, this does not directly benefit authors; consequently, that element cannot explain why authors so covet placement in the Yale Law Journal or the Harvard Law Review. Moreover, the extent to which law reviews help employers (including judges) select students also cannot explain a law review's prestige among authors.

   So, where does this prestige come from? Does it only come from the prestige of the hosting school itself? This cannot be the case, for, in the hands of incompetents, even the most prestigious journal should lose some of its value. If students were incompetent to select articles--or if they decimated articles during editing--then an immediate loss in quality would show. The "wrong" articles would be published. Certainly, legal academics, at least, are discriminating enough to tell. So, it simply cannot be that students are incompetent in running scholarly journals. (9) The long-standing and little-changing hierarchy of prestige among authors maintained by law reviews is proof itself.

   It may be that the true critique of law reviews is not that they are entirely incompetent, but that individual mistakes are too numerous--that students are generally competent, but their error rate is too high. Put more fully, Harvard Law Review publishes superb scholarship on average, but in any given volume there is an article or two that "shouldn't be there." The error rate is low enough such that scholarship published in law reviews produces valuable contributions to legal scholarship, but at a level that makes critics wonder whether the system is optimal. This critique is more logical; I take this to be the idea underlying the critique advanced by Judge Posner.

2. The Posner Critique: Interdisciplinary Incompetence

   Specifically, Posner states that "[m]ost articles by law professors today are still, as they were a century ago, rather narrowly, conventionally doctrinal.... Good law students can evaluate and improve such articles today as always. But ... many law faculty today have, for good or ill, broken the doctrinal mold." (10) He argues that students have sufficient exposure to doctrinal analysis to be competent as editors of law review articles that focus on such analysis, once the bread-and-butter of law reviews.

   However, when it comes to interdisciplinary topics, Posner says, law students are not competent to select publishable articles, complaining that their error rate is too high. "The principal nondoctrinal subfields of law are economic analysis of law, critical legal studies, law and literature, feminist jurisprudence, law and philosophy, law and society, law and political theory, critical race theory, gay and lesbian legal studies, and postmodernist legal studies." (11) Posner believes that students are not prepared to handle any of these subjects, and as a result, student editors are "now dealing with a scholarly enterprise vast reaches of which they [can] barely comprehend." (12)

   At the least, says Posner, to sustain the value that student-run law reviews bring to legal scholarship, law reviews should accept doctrinal articles only. (13) Other critics have advocated changing the dominant law review form by increasing faculty supervision, (14) or moving away from student editorship altogether. (15)

   Underlying the opinions of Posner and others seems to be the assumption that if students select the "wrong" articles for publication, legal scholarship is harmed. Scholars will be deceived if they assume that all articles published in a top-tier law review are fully vetted and excellent papers. Moreover, it has been pointed out that when faulty empirical research is published, scholars end up wasting time rebutting the published work and exposing its errors. (16)

   To be sure, legal scholarship would be harmed if students selected articles that were so ill-conceived that they did not present valid theses or used erroneous methodologies. As suggested in Part I.A, however, it is unlikely that students are selecting articles far outside the realm of acceptable scholarship. Though many may disagree over the worth of an article, such pieces can still positively contribute to legal scholarship. For example, the conclusions that are drawn from empirical research are often subject to interpretation. Just because an article's premises may be challenged does not make the article invalid.

   This Comment asserts that students are fully competent to identify valid articles, whether doctrinal or interdisciplinary. An article is valid if its conclusions follow logically from its premises. Although a reader might not ultimately be convinced of the substance of the article's argument, it is nonetheless sound. To say that students are competent to identify valid articles does not mean that students are competent to identify the "best" scholarship among submissions. Frankly, ranking articles for "correctness" and "significance" of content is dangerous business; these are such subjective measures that it is difficult to avoid making decisions based on one's own interests or academic leanings. Even among professors, evaluation of any given article would vary.

3. Differing Conceptions of the Meaning of article Placement

   Posner's criticisms also appear to rely on an assumption that law reviews do (and should) exist within a strict hierarchical structure, in which the most meritorious of articles are published in the most prestigious of reviews. According to this view, where an article is placed in that structure is meaningful; a well-written and well-founded article merits higher placement among law reviews. If students actually place an article lower than it should be placed, then the students of the higher ranked law review rejecting the article have erred. However, a system in which law reviews only publish scholarship appropriate to their tier in the hierarchy is merely an ideal. Not only do assessments of quality vary among individual professors, but the readership also includes legal practitioners, whose own assessments of article quality vary as well...