Law Reviews Are Living on Borrowed Time
(Bloomberg Opinion) -- Did a federal court just tell the world that most legal scholarship isn’t worth reading? Maybe so. In a decision handed down in early March, a panel of the U.S. Court of Appeals for the Sixth Circuit seems to have said exactly that.
The issue before the court was a technical point in the law of evidence. In explaining the outcome, the judges seemed to go out of their way to ... well ... trash much of the work of the legal academy.
United States v. Gissantaner involved admissibility in a criminal trial of what’s known as DNA “sorting” evidence. Sorting is the process through which a technician separates and identifies multiple bits of DNA found together, such as — in Gissanter — on a gun. In the course of explaining (correctly) why the evidence was proper, the Judge Jeffrey Sutton’s opinion reviewed a 1993 case called Daubert v. Merrell Dow Pharmaceuticals, Inc., in which the U.S. Supreme Court set out the standards for admissibility of expert scientific testimony.
So far, so good.
But in the course of explaining why the Supreme Court has deemed it important to discover whether the expert’s testimony be supported by methods published in peer-reviewed scientific journals, the Gissantaner panel unleashed an unexpected attack.
“Peer review is not student review,” the judges explained.
For non-lawyers, this is a reference to law journals, which are unique among professional publications in that nearly all of them are edited not by experts in the field but by students. But the court’s reference was not just a clever aside. It was the prelude to a full-throated assault:
“The scientific community uses different conventions for publication from most journals published in the legal community. No offense to former, current, and future members of law journals everywhere: But it is one thing to convince lawyers in training to publish a piece; it is quite another to convince peers in a professional community to publish a piece.”
Ouch. “Lawyers in training.” Almost as though the Sixth Circuit is suggesting that students who haven’t yet earned their law degrees don’t quite have the wisdom and experience to be considered ... well ... the peers of the authors whose offerings they’re assessing.
Lest there be any doubt, Judge Sutton hammered the point home:
“That is why readership and citation are pivotal when it comes to legal scholarship and why publication itself is noteworthy in scientific scholarship.”
In other words, getting an article published in a scientific journal is a big deal because of who makes the decision; getting a piece published in a law review is a much smaller deal ... for the same reason.
The implication is that there’s no reason for judges to pay close attention to a piece written by a professor just because it’s the lead article in a famous law review. Unlike acceptance for publication in a scientific journal, the selection of an article by a law review provides little information on its quality.
A fair point, although not a new one.
Academics publish. That’s the job. For the most part, the more one publishes, the more glittering one’s reputation; so serious academics try to publish a lot. And in just about every discipline, from anthropology to neuroscience to history, being published means persuading experts in your field — the peer reviewers, whose identity in most cases you’ll never know — that your article makes a contribution worthy of winding up in a professional journal. Once it’s accepted, other experts — or, in some cases, professional editors — will shepherd it onward to publication.
In the legal academy, however, each of those functions is performed mainly by Sutton’s “lawyers in training” — that is, students.
To be a member of a law review is considered an honor, adding distinction to any resumé. Yet the students who, having earned the honor, undertake the work of running the journal are not experts in legal theory, and are unlikely to know which submissions will do the most to advance the field.
Moreover, even after the selection’s been made, the students are unlikely to be experienced editors. The result is often messy. A quarter of a century ago, in what’s become a well-known critique of student edited law reviews, federal judge Richard Posner put the point this way:
“The editors busy themselves in busy work, including intrusive editing that imposes significant time costs on the authors and actually reduces, in many though certainly not all instances, the quality of the final product. Not only is the marginal product of student editing frequently less than the marginal cost, it sometimes is negative.”
Ironically, when students first began editing law reviews, among the clear purposes was to highlight the work done by their own faculty. Part of the prestige of law review was that members learned by suggesting footnotes — with trembling courage — to the great minds teaching them the law, leaving their scholarship otherwise unedited.
That was then.
Although a few legal academics nevertheless prefer student editors, many have moved on — a response to the high marginal cost to which Posner refers. Some have fled to the blogosphere, others post their papers on SSRN without worrying about formal publication, and a handful have quit writing anything but books. Sensitive to these market forces, an increasing number of law reviews have adopted rudimentary peer review processes.
I don’t take either Sutton or the Supreme Court to suggest that peer review is a perfect predictor of scholarly accuracy. The process is infected by biases and errors galore. Moreover, peer review takes time, and an increasing number of scholars are reluctant to take on the task. And, of course, peer review is no guarantor against controversy.
Yet, whatever its defects, among possible systems of choosing what’s worthy of publication, peer review likely remains “the least worst we have.” The question is how long it will take the world of law reviews to catch up.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”
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