The law reviews: do their paths of glory lead but to the grave?

AuthorDoyle, John
  1. INTRODUCTION

    Critics of the law review product are legion. The classic statement is from 1936 by Fred Rodell: "There are two things wrong with almost all legal writing. One is its style. The other is its content." (1) The standard law review criticisms have been of excessive article length, an overabundance of footnotes, a lack of publication speed, an overly theoretical emphasis, overediting by students, and a lack of student knowledge sufficient to select and edit articles. In some of these perceived faults authors are complicit, being empowered in their search for prestige by an abundance of law journals (2) competitively hungry for something to publish. But while law reviews have frequently been berated, (3) little has changed, which leads one to wonder if the issues matter all that much, if vested interests are overwhelmingly strong, and if some other system is capable of replacing the one we know as we move further into an online information world.

    At the time of Rodell's criticism, there were fifty-two general law school reviews in the United States and about forty specialized law journals. (4) The numbers of law journals have robustly grown to the present day. There are now about 200 general print law reviews (together with a dozen online adjunct publications to some of the higher-ranked law reviews) along with over 700 specialized law journals, which is an average net increase of about ten new law journals a year. Additionally there are over 500 English language law journals published outside the United States, many with international coverage. And the growth of journals is not slowing. During the years 2005 to 2007 an average of about twenty U.S. and twenty non-U.S, law journals started publication each year. (5) Today there is a very wide avenue for article publication, with plenty of space for the classics, the trendsetters, and the workhorses to exist side by side. There is also plenty of space for the less desirable vehicles that really needed an overhaul before getting onto the publication highway.

    Instead of this multiplicity of publications, imagine one database where all legal articles are housed, and where prestige arises from just the author, the writing, and its subsequent treatment, and not from any journal packaging. To date, the preprint database SSRN (6) comes closest to this model. If there were excellent searching, sorting, and ranking tools, with the ability for users to attach comments and evaluation, this type of massive collection has the potential to supersede existing law journals. But the Boolean and proximity searching that exists in LEXIS and Westlaw would not itself be sufficient to enable easy use of such a collection; multiple sorting and ranking options would be needed to substitute for the quality-proxy of journal prestige. With the advantages of a new paradigm for disseminating legal scholarship in mind, this essay examines deficiencies and distinctive features of today's law reviews, suggesting some improvements while also proposing the practicality of a database model to replace law journals entirely.

  2. PRESTIGE AND RANKING

    Everyone will agree that the general law reviews at Harvard, Yale, and Columbia are the elite law reviews. (7) Established reputation becomes reinforced by the motivation of authors to publish in prestigious locations, and by readers who suppose the articles best read and cited to be found in those journals. A ranking that allows us to judge an article's quality by the prestige of its packaging is useful in making quick judgments about an author's work. But plainly not everything in Harvard Law Review is great, and much in lesser-ranked journals will be excellent and more appropriate to one's purpose. Assumptions about an article's quality based on its journal placement are superficial yet very practical. If you want to cite a work for background analysis and there are alternative sources available, why cite Houston when you can have Yale, particularly when you haven't very carefully read either? Yale may reflect more stature on an argument than does a source of substantially lesser status. (8) It seems reasonable to assume that much citation to academic legal literature is of this self-reinforcing form: prestige begetting citations, which beget more prestige.

    Numerous rankings of law journals have been published over the years, most based on citation counts, though other bases exist, such as author prominence (1000 points for authors who are Presidents, 850 points for Senators, and the like), (9) and expert peer opinion, (10) All have deficiencies in methodology. For author prominence, it is the arbitrary nature of the point scheme; for peer evaluation, it is the inability of experts differentiating more than a small number of journals; and for citation count, it is that authors may use articles without citing to them.

    No empirical evidence shows which ranking system authors use when deciding where to publish legal articles. The chief prestige indicator for law schools is the U.S. News & World Report annual ranking of law schools, (11) and many academics can be presumed to have internalized some part of that ranking. Thus, many authors are likely to use the halo effect of a law school's ranking to similarly rank its law review. This is unfair to law reviews, as it treats their energetic struggle to compete as an effort only to avoid messing up too badly. If authors fail to look at journal performance, then nothing that editors do affects anyone's perception of their journal.

    The other major ranking scheme available to authors is the site at Washington and Lee, (12) which is, for law-journal-ranking purposes, more objective than the U.S. News list, being more closely tied to actual performance by the law journals. (13) W&L ranks around 800 U.S. law journals, so it has something to say about the numerous journals inhabiting the slopes well below the fashionable Nob Hill slots inhabited by the likes of Harvard, Yale, and Columbia. But even down there, where the gravitational force of the U.S. News rankings ought to be faintly felt, authors will struggle between the Lewis & Clark Law Review (14) and the Hofstra Law Review, (15) or between the Boston University International Law Journal (16) and the Georgetown Journal of International Law. (17) In comparing the two specialized journals many authors would surely be attracted to Georgetown's higher U.S. News prestige, and would ignore Boston University International Law Journal's out-performance of Georgetown based on citation counts. Still, for prestige to function strongly, it does not have to be tied to anything sensible; in large part prestige is self-reinforcing.

    Using a law journal's prestige as a short cut to judging its content is being officially systematized in Australia. The Australian Research Council (which is the primary source of advice to the Australian government on academic research grants) is in the process of ranking research journals. Part of the exercise is to assess the research quality of institutions, such as law schools, by weighting the publications of their faculty by the journal rank category in which their articles are published. The law journal portion of the ranking (18) was, at the draft stage, substantially based on the W&L rankings, (19) which prompted David Hamer, a professor at the University of Queensland School of Law, to complain about the U.S.-centric bias of the ranking:

    ARC's scheme places journals into four rankings: A* (top 5 per cent), A (next 15 per cent), B (next 30 per cent) and C (bottom 50 per cent). I have only managed to find two Australian law journals ranked above C--Sydney Law Journal and Melbourne University Law Review, both ranked B. (20) Professor Hamer's complaint--that under such a ranking scheme Australian authors could be motivated to publish in U.S. law reviews and so to shift the focus of their research to topics of more interest to U.S. readers--is justified. (21) No doubt the final rankings from the Australian Research Council will elevate many Australian journals to at least A and B status for "[i]t would be wrong to describe the law as parochial, but it is jurisdictionally specific." (22)

    It is easy to denigrate as superficial a mass-ranking system like Australia's attempt to quantify research excellence, but it is not feasible to obtain enough experts to read and score articles published in every publication. Similarly, any reader can only digest a minute fraction of law journal output and must rely on some external source for perceptions of comparative journal quality and prestige. Nevertheless, rankings will inevitably either suffer from infirmities in methodology or be simplistic, and the very existence of a ranking scheme has its negative side.

    Academic authors reasonably suspect that the journal placement of their work influences hiring and promotion decisions, and thus they submit their articles to the highest ranked journals that might possibly publish their work. Rankings entrench journal status, making it difficult for new or lower-ranked journals to attract outstanding work, and they encourage contributions to elite journals years after any slide in their quality might have occurred. It can be argued on the other hand that competition by journals for the best articles, along with the value placed by authors on publishing in the most prestigious journals, encourages improvement in the quality of articles. Put a little more work into the article, add a bit more research, a few more footnotes and you can move your article up some placement notches. But if the articles published by elite journals are too [whatever you want to say here: theoretical? lengthy? footnoted?] then this influence moves down the food chain as authors form their writing for prestigious journals, receive offers from the less prestigious, and hope that those offers make them more attractive to the gatekeepers at the elites. Thus blandness...

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