Goodbye to Law Reviews?
The word on the street is that 1Ls are wondering, “What is the point of journal tryouts?” After all, with the new Big Law recruiting timeline, students will have positions lined up before they hear back from journals. Could a drop in student participation undermine the law review system? Answering this question requires examining what exactly law reviews do.
The actual duties of a law review editor are fairly straightforward. Students start as Editorial Board members whose main duties are substantiating, bluebooking, and editing. Each student is assigned a portion of a draft selected for publishing. Substantiating involves preparing pdfs of sources and confirming that they support the propositions for which they are cited. Bluebooking is ensuring that citations conform to the Bluebook style guide, like the editing portion of journal tryouts. When it comes to editing the body, some journals, such as the Virginia Law Review, follow a “light edit” approach and restrict themselves to correcting grammatical and spelling errors, but other journals may suggest more extensive revisions.
Students can eventually run for leadership positions on the Managing Board. Responsibilities vary by position, but many are similar to those in other student organizations, such as maintaining the website, event planning, budgeting, coordinating teambuilding activities, and the like. More unique to journals are duties like selecting which articles to publish, managing the edits, and liaising with authors.
Journals also come with a few perks. Each journal has its own office with some amenities. There might be one or two teambuilding events per semester. Students will often receive a mentor in the year above them and can get access to outlines. One last factor to be aware of is Virginia Law Review’s note requirement, which requires students to submit a paper for publication before graduation.
So how valuable is this all? As one law firm partner told me, journal experience shows two things: You have high grades, which will be on your resume regardless, and other twenty-somethings think you’re a good writer, which means nothing. More importantly, to my mind, law review demonstrates attention to detail and a willingness to spend a significant amount of time doing document review and editing. That’s not a criticism: Such matters are essential for junior lawyers.
Although this may not sound all that appealing, the costs of law review are also, in my opinion, overstated. Spending a couple weeks a semester doing boring and tedious, but not especially difficult, editing is not the end of the world. Frankly, it’s what you signed on for when you decided to become a lawyer.
So much for students. But what do law reviews do for scholarship? As most people know, journals in other fields are typically peer-reviewed by senior scholars, not second-year grad students.[1] Critics would allege that the law review system destroys the credibility of legal scholarship: overeager, dilettantish students publish poorly vetted, insufficiently reviewed articles that read more like op-eds than scholarly publications.
The defense of law reviews starts by recognizing that student edits are not really the analogue of peer review. Nowadays, law professors typically solicit substantial peer feedback online or from in-person workshops, which arguably compensates for the lack of true peer review. Also, professors know that they cannot advance their careers with shoddy scholarship that fools students but collapses under scrutiny. Student editors add value through the substantiation process, which arguably weeds out outright hoaxes and frauds—a real weakness of peer review, which does not typically have an equivalent to substantiation. Lastly, a common defense is that student editing is faster than peer review for articles that address timely developments in the law.
Although extreme criticisms are overstated, I still doubt that the law review system is optimal. I am skeptical that the workshopping that occurs now can fully compensate for true peer review. And although I grant the value of substantiation, student selection has real downsides. In particular, the process is not anonymous, unlike most peer-reviewed formats, which can cause publication to be overly influenced by the authors’ credentials and reputation. Timeliness seems to me to be overvalued by law reviews as most articles do not deal with such truly short-term issues. Last but not least, student editing contributes to some unattractive stylistic tics, such as the need to explain everything in prolix detail for lay readers.
To return to our initial question, then, could the new hiring timeline—or anything else—really undermine law reviews, prompting a systemic shift to peer review? Probably not. Not all employers are on the Big Law timeline, and even firms may care somewhere down the line, but I’ll concede arguendo that the new recruiting timeline could make journals irrelevant to employers. My impression is that most professors are also indifferent or would favor a shift to more peer review, but that there is one last interest group with enough clout to thwart such a shift: judges. They don’t actually care about the content of the journals, of course.[2] But they do seem to like clerks with journal experience. For whatever reason, a clerkship remains the ultimate gold star for students, and schools do their utmost to increase placement, so I don’t see them getting rid of law reviews any time soon.
[1] In fact, many students don’t realize that a fair amount of legal scholarship is already published in peer-reviewed journals, especially interdisciplinary scholarship and some niche areas of law. Most books published by university presses and most foreign journals are also peer-reviewed.
[2] The de rigeur citation here is to C-SPAN, A Conversation with Chief Justice Roberts, at 30:45 (C-SPAN, June 25, 2011), https://www.cspan.org/video/?300203-1/conversation-chief-justice-roberts (“Pick up a copy of any law review that you see, and the first article is likely to be, you know, The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”). Unfortunately, this has not been my journal experience, but perhaps the Chief Justice’s misperception is only further evidence of the judiciary’s disinterest in scholarship.
