What are we to make of law journals?

In a brief piece in the Connecticut Law Review, "Law [Review]'s Empire: The Assessment of Law Reviews and Trends in Legal Scholarship,"--which is part of a symposium that features Ronen Perry and my work on the relationship between law school rankings and law review citations--I talk about some recent trends in law review publishing. I think there are several trends that are positive for legal scholarship, including increasing peer review journals and faculty involvement. Faculty seem to be increasingly involved in selection of articles, which I think is positive because my sense is that students have a difficult time assessing the quality of scholarship.

Everyone's talking about empires these days. John Witt's important essay review in the January 2007 Harvard Law Review reminds us that empires are sometimes desirable, but we need to be very careful when dealing with them. (You really ought to read Daniel Hulsebosch's Constituting Empire, which is one of the books that Witt reviews, by the way.) I used empire in the title because I wanted to evoke the image of reviews as empires that both adapt to changed circumstances and are concerned with the maintenance of their power. We see some adaptation (like law reviews' increasing presence in the blogosphere and their use of faculty to help review articles); we also see some other hallmarks of empires.

Consider, along these lines, a recent comment in the University of Pennsylvania Law Review about the student selection of articles:

Much of the criticism of law reviews is directed specifically at the article selection process. First, critics charge that students are "not well equipped" to select articles, because they lack expertise in a broad array of subjects. The articles submitted cover so many areas of law and other fields that there is a low probability of having even one editorial board member with sufficient background knowledge. Moreover, even if some students have been exposed to a field, they have not yet developed the skills necessary to evaluate its scholarship. Modern articles focus more on theory, and refined theoretical arguments that draw on philosophy, economics, and other social sciences require a different analytical toolset than that taught in law classes. The result, says Posner, is that "many interdisciplinary articles are published that have no merit at all."

In addition, others have argued that student independence prevents consultation of faculty for assistance in selecting articles. Instead, students use arbitrary measures for selection or base decisions on personal topical preferences. Especially for reviews that receive several hundred or more manuscripts, the selection process "must" be arbitrary.

First, it is helpful to describe what the selection process seeks to identify. The critique of student capability may sound sensible to many: because the article selection process is complex, anyone young and inexperienced will have difficulty with it. The truth is, however, that article selection is not too difficult a task for law students. Deciding whether or not an article is desirable is not an elusive process requiring a refined professional judgment, honed through years of apprenticeship and experience. It is not even like wine tasting or art-gallery visiting, where a certain kind of "taste" or "eye" is needed.