PrawfsBlawg: Yes, law students select and create legal scholarship

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Thursday, June 02, 2011

Yes, law students select and create legal scholarship

As the spring submission season winds down, you can hear the collective sigh of relief. ?No matter whether one is happy or disappointed with the results, all those involved -- from the profs to the students -- probably have a few new gray hairs. ?The law review submission process is angst-filled for just about everyone. ?But why?

There are two contradictory proverbs about law review submissions that most of us seem to espouse: (1) placement does not dictate the quality of the article, and (2) it is important to place your article as "high" as you can. ?This is the acknowledged paradox of the system. ?Both statements cannot be correct, at least in the long term. ?If quality was unrelated to placement, then no one would care where the article placed. ?But if placement actually does signal the quality of the work, then our field is leaving decisions about quality in the hands of students.

It's that second proposition that is the elephant in the room for many prawfs, especially when explaining law reviews to colleagues in other fields. ?Yes, we submit to student-run reviews. ?Yes, publication decisions are made by students. ?Many of us are embarrassed by this, and so we run back to (a): "It doesn't really matter where we publish. ?The law review is just giving the article a platform." ?But then why do so many of us care about the platform? ?If pressed, the junior scholar will likely blame others: "Well, my senior faculty really care," or "The rest of the academy seems to think it's important, so I guess I have to go along with the crowd."

I think we need to work through this contradiction. ?But rather than taking the traditional route, I'm going to go in the other direction. ?Yes, students help decide what is good scholarship. ?Instead of running away from this, I think we should own it and deal with it.

Law school students are in something of a strange place in the academy. ?They are graduate students, and they are getting a "juris doctor." ?But unlike other doctoral students, the overwhelming majority will not go on to academia -- they go into practice. ?This places them in an odd position -- doing extensive study in a particular academic field, but not sticking with the field afterwards. ?So law professors are expected to train not future academics, but rather future lawyers. ?And we are expected to write for lawyers as well. ?We're criticized when our research is not useful to, say, a Supreme Court chief justice. ?As Gordon Smith felt moved to point out, in italics -- "legal scholars often are not writing for practicing lawyers." ?But even he felt the need to throw in "often."

Legal scholarship and legal education have always been hybrid propositions. ?Part academia, part professional school. ?Part theoretical, part practical. ?And that goes not only for professors but for students as well. ?Law students are graduate students. ?They are learning professional skills, but they are also learning an academic discipline.

Law review editors are a special subset of law students. ?Most of them, too, will go on to practice. ?But they are even more engaged in the scholarly enterprise than their fellow graduate students. ?Law review editors not only select and edit legal scholarship -- they write it as well. ?Law review notes are direct opportunities for students to participate in the scholarly and professional conversations of the field. ?It has perhaps become less fashionable for academics to cite student notes, and they matter a lot less than they used to for those students who want to be scholars. ?But notes remain a way for students to write scholarship.

Student control over legal scholarship can be seen as a historical accident, a locked-in network effect, a solution whose time has passed. ?But rather than being embarrassed that students are involved in legal scholarship, maybe we should embrace it. ?Yes, our graduate students run many of our most prestigious journals. ?They are expected to know enough about the field that they can choose the important articles and help to edit them into even better pieces. ?The luxury, of course, is that we don't just have two or ten or twenty journals that we have to publish in, or else -- we have hundreds of journals, and a good piece can rise to the top of the field even with a lower placement. ?But we should acknowledge that yes, our graduate students are part of our scholarly conversation. ?And there are positives to this.

What if philosophy, or economics, or political science journals were run by grad students? ?It's an interesting thought experiment, and I'd like to hear from folks in those fields about the effects such a ?change would have. ?But having students involved in legal scholarship helps keep the field connected to both future academics and future practitioners. ?Those students working for a journal are reading, selecting, and editing scholarship. ?They are involved in the scholarly conversation. ?It helps to keep the field fresh and accessible and connected to the world of practice. ?In a hybrid discipline, it is a hybrid approach. ?If we recognize that, it might change not only our perspective on law reviews, but also how we approach things like teaching and curriculum.

That is not to say that peer review is unimportant. ?We work in peer review in a variety of ways: a small but significant number of peer review journals, the star footnote, top-10 lists, workshop series, the Stanford/Yale junior faculty forum, a note from a colleague, lateral offers, book contracts, tenure. ?Overall, we need more peer review, not less. ?But we need not adopt the level of discipline-loathing that completely disregards the contribution of law reviews. ???Yes, students help choose, edit, and create legal scholarship. ?And that can be a good thing, too.

If we start taking seriously the notion that our students choose and create legal scholarship, we can stop putting our fingers in our ears and start trying to make the process better. ?If we want students to be able to do their work more effectively, what can be done to facilitate the process? ?The most important thing, in my mind, is committing to the notion that law reviews are not necessary evils, or even embarrassing vestiges, but rather partners in the scholarly endeavor. ?When we start imagining the role of students in law reviews as a legitimate part of legal education and legal scholarship, we will start to think of ways to improve the overall process. ?But if we cannot commit to that notion, then we should abandon law reviews altogether and move on to a new system. ?

Posted by Matt Bodie on June 2, 2011 at 11:30 AM in Law Review Review, Life of Law Schools | Permalink

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Comments

The argument in this post appears to be in the following four sentences: "But having students involved in legal scholarship helps keep the field connected to both future academics and future practitioners. Those students working for a journal are reading, selecting, and editing scholarship. They are involved in the scholarly conversation. It helps to keep the field fresh and accessible and connected to the world of practice."

I'm afraid that I'm having some trouble with this argument. It's a stretch at best to believe that student editors with perhaps a year's worth of experience in the academy are capable of reliably recognizing high-quality scholarship, but I'll suspend disbelief on this one. It is, however, quite impossible for me to understand how having journals edited by students who have never practiced law "keeps the field fresh and accessible to the world of practice." If this is the mechanism for keeping scholarship useful to practitioners, then perhaps it explains why so many practitioners have so little regard for legal scholarship.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jun 2, 2011 12:06:44 PM

Do you have any concrete suggestions for how to make the process better by embracing the fact that students select and edit legal scholarship?

Posted by: James Grimmelmann | Jun 2, 2011 12:46:30 PM

I think Larry has a good point on students not really doing much to keep field connected to the practice, but I don't think that was Matt's main argument. I took the basic thrust of the post to be: "Students select scholarship. That's not changing. Let's recognize this and deal with it."

I wholeheartedly agree. Could mean more schools offering 2-credit courses on Legal Scholarship that law rev folks have to take. Could mean more faculty involvement, partnering with students, on article selection. Who knows. But Matt has now changed the conversation in a more constructive direction. Great post.

Posted by: Jason | Jun 2, 2011 12:51:32 PM

In Engineering, as an All-But-Dissertation graduate student, I did peer reviewing for several journals (mostly the one my PhD Supervisor edited, but also for journals to which we had submitted articles). So, I was involved in scholarship as a grad student, but it was up to a senior editor a journal to make the final selections.

The journals we submitted to also require(d) exclusive submission. You get one shot at a time to publish your article not dozens (or hundreds?!).

I think that the legal academy could do this easily if law profs were willing to do the extra work that reading articles and writing reviews entails. I think y'all would have to shorten your articles considerably in order to make it really viable, though. :)

Posted by: billb | Jun 2, 2011 1:07:49 PM

May I suggest that the "student editors" also provide an opportunity not present in peer reviewed systems... albeit one that the academy (and the profession as a whole, for that matter) seems to disdain?

Students who are properly aware of what they're doing when selecting articles will demand a certain clarity of expression in the article that may be less important to peer reviewers. (Admittedly, many student editors are not properly aware of what they're doing when selecting articles... but that's for another time, and is hardly unique to student-edited law journals.) That's not to say that technical terms must be avoided in articles; it is only to say that their use, and definition, must be clear and not cross the line into jargonspeak and similar obfuscation.

From my own days on law review, lo those many years ago, I recall one polarizing article as a 2L doing cite-checks. The article was written by a Big Name at a Big Name school... and it was almost incomprehensibly filled with jargon, ambiguity (both intentional and from bad writing), and contradictory assertions that were never resolved or acknowledged. We did our best to deal with it, but were continually rebuffed by the responsible Articles Editor and 3L board in our requests for clarification so that we could see if the cited authorities supported unclear propositions. That one experience led us to have a formal, internal policy the next year of rejecting all articles that did not come to us as initially submitted in clear, editable English... I think (and citation counts a decade later seem to agree) to the great benefit of the journal.

So, in a sense, that's what the student journals offer that peer-reviewed journals don't: A (potential) demand that articles be written to be accessible to curious, partially trained, doctrinally unsophisticated readers.

Posted by: C.E. Petit | Jun 2, 2011 1:26:47 PM

To C.E. Petit: the argument against allowing students to select articles and in favor of blind peer review is contained in the facts you recall. You say that the article you edited in law school was "almost incomprehensibly filled with jargon, ambiguity (both intentional and from bad writing), and contradictory assertions that were never resolved or acknowledged." And yet, it was selected for publication. Why? Well, because it was written by "Big Name at a Big Name school". Of course.

Posted by: Lev | Jun 2, 2011 3:58:00 PM

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