July 11, 2007
Larry Solum on Peer-Reviewed Journals
Posted by Gordon Smith

Larry Solum uses the announcement of the Journal of Legal Analysis as a springboard for discussing peer-reviewed journals in law. It is a great post and well worth reading. I was particularly interested in the fact that Larry places the onus on existing institutions to develop a critical mass of "generalist peer-reviewed publications." Two questions for Larry (or anyone else who cares to respond):

1. Why do we need "generalist peer-reviewed publications"? General law reviews are dinosaurs, and replicating that publication model in the peer-reviewed world doesn't make sense. Running a generalist peer-reviewed publication would require a much larger collection of editors and reviewers than a specialty peer-reviewed publication, without any obvious offsetting gains. Disciplinary law journals -- such as Legal Theory, Law & Philosophy, Journal of Empirical Legal Studies, Journal of Law & Economics, American Journal of Legal History -- have thrived, and I suspect that their success rests in (large?) part on the fact that they have a coherent approach that makes administration manageable.

As advanced disciplinary training and the desire for credibility in other disciplines increases among law professors, I expect the demand for peer-reviewed publications to increase. And I see no reason that these publications must be organized around non-legal disciplines. They could be organized doctrinally (like most existing specialty law reviews) or by real-world phenomena (e.g., law and entrepreneurship). But I see no rationale for a critical mass of generalist peer-reviewed publications.

2. Why do we need to rely on existing institutions for the creation of peer-reviewed journals? Larry has a straightforward answer to this question: collective action problems. Larry observes that such problems generally are overcome by professional associations, and the most striking feature of legal scholarship is the absence of candidate institutions:

In any other discipline, one might look to the professional association of scholarsBut there is no professional association for legal scholars!!!!!  Five exclamation points really are not sufficient when noting this dismal fact.  Let me try again: there is no professional association for legal scholars!!!!!  What about the AALS?, you might ask.  Well, the AALS is not the "Association of American Legal Scholars," on the model of the American Philosophical Association or the American Political Science Association.  The AALS is the American Association of Law Schools--it is the trade group for law schools and not the scholarly association for scholars who study the law.  So, the AALS publishes the Journal of Legal Education--a journal about legal pedagogy!!!!!  Don't expect the AALS to address what is obviously the most significant institutional problem with the legal academy in a serious way.

Perhaps our problem is the absence of professional associations? Anyway, given the absence of professional associations, Larry turns to law schools:

Nonetheless, there is surely some hope that Harvard's initiative will get the ball rolling.  Why not Yale, Stanford, Chicago, NYU, and Columbia, next?  And then Penn, Texas, Michigan, and Berkley?  (Obviously, the order here is totally arbitrary.  For all I know Michigan is the most likely "second mover.")  It might happen.  It could happen.  Stranger things have happened!

This makes sense if you are pursuing a critical mass of generalist peer-reviewed publications, but if you believe, as I do, that specialty peer-reviewed publications are the winning horse, then a group of legal scholars who have an interest in a particular field would suffice. See, e.g., the handful of law journals at bepress.

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Comments (5)

1. Posted by Michael Heise on July 12, 2007 @ 6:30 | Permalink

By way of full disclosure, as a co-editor of the Journal of Empirical Legal Studies I admittedly have an interest in the issue Gordon identifies. Self interest aside, my sense is that if a tipping point favorable to faculty-edited, peer-reviewed journals (whether "general interest" or specialty) has not yet been reached, it fast approaches. The market is clearly speaking, and HLS is simply the most recent "dropping shoe."

2. Posted by Christine on July 12, 2007 @ 9:15 | Permalink

I was talking with a colleague who edits a peer-reviewed specialty journal. He lamented that one of the problems in the flourishing of these types of journals is that in our discipline (as compared to other academic fields), reviewing the work of others in a systematic way is not considered part of the job description. Potential reviewers view this task as something extra, unpaid and burdensome. Perhaps norms will have to change before a proliferation of peer-reviewed journals happens, with a parallel proliferation of reviewing peers. Someone else in the conversation commented that perhaps the norm would change if legal scholarship weren't so darn long!

3. Posted by Michael Guttentag on July 12, 2007 @ 10:27 | Permalink

Maybe this is obvious, but when I write an article, I need to imagine who my intended audience is. The audience I construct for myself is made up of the scholars I most respect in the field I am writing about. Given this practice, peer review in general is appealing, since it avoids a mismatch between my intended audience and the audience evaluating my work for publication.

4. Posted by Gordon Smith on July 12, 2007 @ 10:37 | Permalink

I hope you are right, Michael H., and I know that you are right, Christine.

Michael G., I struggle with this when I know that the piece is going to a law review. As a result, when I write introductions, I am thinking almost exclusively of student readers.

5. Posted by Fred Tung on July 12, 2007 @ 14:17 | Permalink

On Christine's comment about incentives to referee papers, here at Emory when we write our year-end self-reports, one specific question asks how many peer reviews and promotion/tenure reviews we've written in the past year. While it's only one factor among many in the performance evaluation, I like that we consider it important enough to ask about. At least on my faculty, that kind of activity seems to correlate fairly well with active participation in the scholarly/professional enterprise generally. Faculty reports are also distributed among the faculty at the end of the year, so everyone knows what everyone else has been doing.

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