belated defense of law reviews

Sadly, this post has been delayed while I got an overdue article off my plate!  The NYT’s Adam Liptak writes about law reviews, with this unhelpful comparison: “The judge, lawyer or ordinary reader looking for accessible and timely accounts or critiques of legal developments is much better off turning to the many excellent law blogs.”  Look, I flatter myself that 43(b)log might count among the latter, but “timely accounts” and “critiques” are meaningless without a broader conceptual apparatus allowing us—professors and practicing lawyers alike—to explain what they mean, and you don’t get that from a blog alone, unless perhaps you are Marty Lederman (who, not for nothing, ended up publishing his work in a conventional and high-ranked place as well, where he had a different audience and time to elaborate and revise). 

The cited study, which unfortunately isn’t up on a free archive, shows that many people surveyed, including many law professors, advocate reforms such as peer review and blind review (also, fewer bad edits).  This isn’t a flaw in the survey, but it is a flaw in the prescriptions: saying we should have peer review and blind review is like saying we should add water and also decrease the moisture content.  I have been asked to do peer review on a number of articles over the past few years—see, law reviews are listening!—and they’ve always been formally “blinded” and I’ve always known without doing any research who wrote them, because I go to WIPIP.  This is a well-recognized effect of peer review.  Maybe blinding on intake (by hypothesis, when the less experienced law review editors are inadvertently basing their initial screening less on field-specific knowledge and more on reputation) would help even if the ultimate peer review isn’t blind.  That’s not how peer review works in other fields, but that doesn’t make it wrong for law reviews.

Relatedly, a feature of asking respondents what reforms they support, from a list of possibilities, is that they favor stuff that helps them even if it creates burdens elsewhere in the system—professors wanted articles editors to explain their rejections!  And the methodology has trouble capturing tradeoffs like peer review/blind review.  So nobody but professors was enthusiastic about getting rid of the standard requirement that a citation has to be provided for (almost) every assertion, but everybody thought that law reviews were too long.  Like my colleagues, I would’ve thought that citation metastasis was low-hanging fruit there, but apparently not for many of the respondents—because “cite everything” has different functions for law review editors and people who are reading in order to cherry-pick arguments that are useful for them than it does for writers and other readers.  Nobody is wrong here, but we can’t all be satisfied. 

As for the overediting complaints aired in the study, fair enough.  Lord knows I’ve gotten annoying edits (but I’ve also gotten fantastic edits by students who did incredible work).  But I believe working with editors who ask for weird things serves a pedagogical purpose.  By contrast, most of my non-law review experience has involved minimal editing, for pure copyediting errors at most, and it’s deprived me of input on whether I’m communicating in the way I want to.