Update: The Journal of Legal Analysis has moved to Oxford University Press. Follow this link for information.
Harvard Law School has announced that it will publish the Journal of Legal Analysis, a generalist peer-reviewed law journal. Here is an excerpt from the law school website:
“There are a lot of faculty-edited journals for subfields like law and economics, law and society, or legal history,” [J. Mark] Ramseyer [the editor-in-chief] said. “So far there hasn’t been any that covers the broader field of law, and we hope to change that.”
In starting this publication, Ramseyer and Shavell hope to make peer-editing more universal for legal scholarship. “Having articles edited by peers is helpful because it draws on the judgment of scholars in the field,” added Ramseyer.
Harvard made a similar announcement some years ago--with Laurence Tribe designated as the prospective E.I.C.--that effort never got off the ground. But let's hope this is a success!
Is this a big deal? Obviously, the proof will be in the pudding. Moaning about student-edited law journals is a time honored tradition among legal academics. Given the realities of the law school placement game, many of the most important decisions about which articles will be published in what venues are made by second-year law students in February or March, as new editorial boards come on line & begin to fill their issues. The problems are familiar--here are just a few from a long long list:
Law students lack the knowledge base of peer-editors. They don't know which arguments are new and which are old, which positions are plausible and which are nonstarters, and what constitutes a "major contribution" as opposed to a "minor development."
All of these problems are exacerbated by concentrating the decision process in February and March, when the very least experienced students are charged wiht making the decisions.
At this point in their career, law students may be competent evaluators of doctrinal arguments, but they are particularly ill-equipped to evaluate interdisciplinary and multidisciplinary scholarship. The first year of law school does not consist of courses in law and economics, normative legal theory, or empirical legal methods.
This selection system has "feeback" and "incentive effects." There is just no denying the fact that some (many, lots?) of law professors pitch their articles to law students, including lots of exposition that makes the issue clear to student evaluators who don't know the relevant literature. This feedback loop is particularly pernicious when we consider the alternative--that we would shape our articles knowing they would be evaluated by the best of our peers.
Student law journals accept multiple simultaneous submissions. That means that student editors at the top journals face a ridiculous number of manuscripts. That leads to the "expedited review" game, where one seeks acceptance at less prestigious journals in order to trigger "expedited review" at more prestigous journals. This further randomizes an already capricious system.
Survey research suggests that students rely heavily on proxy variables in making selection decisions. These include the institution of the author, the prior record of publication, and so forth. This leads to a familiar pattern, "the rich get richer."
I could go on and on, but we are all familiar with the arguments. So the real question is whether Harvard's move could make a crucial difference? Could this be the start of something big? Could this be the start of a real transformation in the world of legal scholarship? Clearly, there are a host of interrelated issues here. Let's try to sort them out:
There is an obvious chicken and egg problem with any large-scale transformation in the practices of legal scholars. Transformation requires enough peer-reviewed journals to change the institutional practices of the legal academy. One or two (or even ten) successful journals on the model of the new Journal of Legal Analysis will not constitute a critical mass. It would be pretty silly to fundamentally change the way that you do business as a legal academic on the basis of some small chance that your next article will be accepted by one of a small number of peer-reviewed journals, but it is not clear that there are adequate incentives to create such journals (on an ad hoc school-by-school basis) until there is adequate demand for placements in them. Why start a peer-reviewed journal that won't get great submissions? How does a law school benefit from investing substantial financial and faculty resources in a second-rate journal--even if it is peer reviewed???
Of course, the chicken and egg problems can be overcome in particular areas of interdisciplinary specialization. Indeed, in law and economics, there is (and has long been) a healthy culture of peer-reviewed journals (Journal of Legal Studies, Journal of Law and Economics, etc.). Likewise, in law and philosophy, there is the Journal of Law and Philosophy, Legal Theory, and a handful of others. But that doesn't seem to be the idea behind the new Journal of Legal Analysis--although the announcement is vague, the notion seems to be a truly generalist publicaton, untied to particular methodologies or subject matters.
Real transformation of the practice of legal scholarship by peer review is likely to be sparked, supported, and reinforced by changes in the institutional incentives for law professors. If peer-reviewed publicaton were a requirement for tenure, then the peer-reviewed journals would be flooded with manuscripts. (Similar effects would flow from decisions to tie research grants or annual salary increases to publication in peer-reviewed publications.) But until there are more generalist peer-reviewed journals, no law school can really institute serious policies to require or reward such publication. It simply wouldn't work.
So one important question raised by the Harvard experiment is how can it be extended? And not just to another handful of law schools, but to the creation of another twenty or thirty similar venues. I've pulled those numbers out of hat, but something like that would be required for the change of institutional practices at 10-15 law schools, the critical mass that would be required to create a cascading effect throughout the legal academy.
In any other discipline, one might look to the professional association of scholars. But 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. (This is not the fault of the particular people who serve in leadership roles: it results from deep structual problems in the AALS.) Absent charismatic and dynamic leadership from a succession of AALS Presidents and a ton of luck, the natural forces that shape the AALS will prevent it from taking the obvious steps: (1) form a task force of leading scholars, (2) form a realistic plan for the creation of a significant number of peer-reviewed journals, and (3) create a set of guidelines for law schools to encourage peer-reviewed publication.
Without leadership from our nonexistent professional association for legal scholars, the collective action problems are daunting indeed. One can imagine the Deans of ten or fifteen elite law schools coming together to formulate a joint plan of action, but of course, this would require faculty "buy in" for implementation. (Few Deans have the dictatorial powers associated with some of the great Deans of yesteryear!) Maybe in a decade or two, when more faculties have strong multidisciplinary and interdisciplinary contingents?
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!
Of course, the world of peer-reviewed journals will not be a utopia. Peer-review has its own problems. Cliquishness. Backroom deals. The entrenchment of predominate methodologies, political orientations, and areas of interests. Every time these problems are discussed, the editor of some peer reviewed journal goes nuts--claiming that they never have done anything other than ensure that each article is evaluated on its merits with blindness zealously enforced. Bullshit! (Frequent readers of legal theory blog know that my use of strong language is rare and deliberate.) And there is the really serious problem of delay in evaluation in a system where single-journal seriatum submission is required. In the new world, you would submit to the Journal of Legal Analysis and it might be six months before you are rejected--you go the second journal on your list, and now it is 18 months later and your tenure clock is running! (In any other discipline, there are cases where careers have been seriously disrupted by the simple fact that peer-reviewed journal carelessness combines in an unfortunate way for some poor soul whose work will all be coming out after they have been denied tenure.) But these costs, as heavy as they may be, are likely worth bearing.
Of course, there are many other issues. The legal academy just might be on the brink of growing up and moving to peer review, just as the disintermediation is underming the significance of editorial boards. I've discussed this in Download It While Its Hot: Open Access and Legal Scholarship. But that is a topic for another day.
Meanwhile, I eagerly await the first issue of the Journal of Legal Analysis.
P.P.S. A brief description of the prior Harvard effort can be found here: Jennifer Carter, "The Rise and Rise of Specialty Law Journals at Harvard Law School" at 26-28.