Every year, thousands of manuscripts stream into Gannett House, the oldest building on Harvard Law School’s campus and the home of one of the most reputable legal journals in the country, the Harvard Law Review.
After a long process of selection and editing, only a few dozen of these manuscripts leave the building, squeezed tightly into the 2,000-page annual volume of the Harvard Law Review.
The selection of articles for publication in the Harvard Law Review and other legal journals often shapes the fates of academics trying to obtain tenure or prestigious government appointments.
Yet the Harvard Law Review and its peer publications differ from academic journals in other disciplines in one respect: they are edited and published by law students.
“As a second year law student I was deciding...the academic futures of many,” said Harvard Law professor Alan M. Dershowitz, who graduated first in his class at Yale Law School and edited the Yale Law Journal. “We had enormous power.”
Indeed, most other scholarly journals are peer-edited—reviewed by professional academics—but legal scholarship lies primarily in the hands of students. Eight out of the top ten most cited law journals are student-edited and affiliated with a law school, according to a 2012 Reuters report.
Some have contended that law students, who have typically only spent one or two years studying the law, are not equipped to select pieces. Others assert that the selection process is inherently biased—law students are more likely to select the works of their professors.
However, the laborious task of editing law reviews and historic precedent of student-reviewed journals may prevent peer-reviewed journals from ever entering the picture. With so many barriers to entry and a functioning, but imperfect system, legal experts say that the student-driven law review model is here to stay.
MEET THE [STUDENT] EDITORS
Not all Harvard Law School students are lucky enough to spend their time in Gannett House. More than 200 first year students compete in the writing competition that determines admission into the Review, and only 46 are accepted each year based on their writing and editing skills.
“Everyone knows that a law review student is a top student,” said Gerald Lebovits, a Columbia Law School adjunct professor and a New York City judge, who was named one of the ten most published law professors by Business Insider.
Though students who run some of the most prestigious law reviews have advanced through multiple selection processes that value academic achievement and critical thinking capabilities, many scholars express doubt as to whether the students’ judgment and understanding of the law is sufficient for such an important role.
“We were young, brash, arrogant kids,” Dershowitz said, reflecting on his time at the Yale Law Review. “In retrospect, it was an enormous amount of authority for someone so young.”
Aside from the relative inexperience of student editors, others have questioned whether a second or third-year law student is equipped with the proper understanding in law to critique, select, and edit legal scholarship that is often penned by academics with decades of experience in the field.
“They are overall really, really smart people who don’t have deep expertise in the subject areas for which they are selecting articles,” said Harvard Law School professor Richard H. Fallon Jr.
However, many are quick to reject this assertion.
Harvard Law School professor Jonathan L. Zittrain said that the presence of student editors poses benefits that other types of editors would lack.
“We benefit greatly by having students as our intermediaries rather than for-profit publishers who often are much more bound to enforce scarcity in what they publish as a way of charging rents to access it,” he wrote.
Dennis Fan, the editor-in-chief of the Columbia Law Review, argued that the responsibilities of editing a law review are not markedly different from the duties these students will take on merely months later.
“Upon graduation, and with little or no work experience, many law school graduates clerk for the nation’s highest courts, often drafting opinions or providing legal advice to those courts’ judges,” Fan wrote in an email.
Moreover, student editors have taken steps to combat this perceived experience gap. The Harvard Law Review and most of its peer institutions solicit the help of faculty from their respective law schools, according to Fallon.
“While Columbia Law Review is not a peer-review journal, it is also not devoid of mechanisms of peer-review,” Fan wrote. “The peer-review/student-run dichotomy is in some ways a false one.”
Others assert that what students may lack in experience they make up for in effort. Student editors spend notorious amounts of time editing submissions—Joel Mallord, the editor-in-chief of the University of Pennsylvania Law Review, estimated that his staff spent “tens of thousands of hours per year” to publish an issue.
“Not only is this work tedious and unpaid, it is also better performed by students,” wrote Mallord in an email. “Students are generally more in tune with citation requirements than practitioners and academics, who tend to lose interest in those requirements shortly after leaving law school.”
Indeed, law professors are unlikely to do such work and little encourages them to do so, some said.
Other than students, “who else has time to check that sources say what the authors claim they say?” Mallord wrote.
In addition, despite the use of anonymous selection processes, biases in the review process persist, and many argue that student editors are prone to select professors from their respective law schools and influence the length and specificity of submitted articles.
Pieces published by law reviews from “insider faculty”—those that are from the law school that is affiliated with the law journal—are less cited on average, according to a study done by University of Toronto law professor Albert H. Yoon. Because citations are often a metric for the quality and relevance of a piece, the publication of these less cited articles indicates a bias toward insider faculty, Yoon concludes.
His study also found that the disparity in citation levels of insider faculty and outside faculty is stronger in higher-ranked law reviews like the Harvard Law Review.
“Do we favor insiders? Absolutely,” said Joel Peters-Fransen, who served as a supervising editor at the Harvard Law Review before graduating in 2010. “We tried to do an anonymous selection process, but with varying success.”
Because authors often cite their own works and are sometimes easily identifiable by their topics alone, anonymity remains elusive.
For most articles under consideration, at least a few editors know the identity of the author, according to Peters-Fransen.
“People generally acted with good intentions,” said Peters-Fransen, who noted that he did not know of an “official, written policy” on handling conflicts of interest. The Harvard Law Review also allows all editors to vote on the selection of articles, which helped “reduce or mitigate conflict of interest” as the vote of a biased editor was one among many, he said.
As more quantitative evidence suggests such biases exist, some law reviews have begun to reconsider their selection process. The University of Pennsylvania Law Review, for example, is currently reassessing its selection process to eliminate as much bias as possible, according to Mallord.
Yet some have found this bias to be of minimal concern.
As more and more articles are posted in “online pre-print databases” before being published in print, such a bias has relatively little effect on the academic conversation and the physical publication of the article “may not matter very much,” Zittrain wrote.
And while a selection bias has concerned many, Fallon pointed toward another type of bias: the way in which an audience of student editors influences the types of pieces submitted for selection. Academics who hope to be published in a law review often cater to the students who make publication decisions.
“Articles in law reviews tend to be very, very long…because they’re written in such a way that is to describe the landscape, both legal and scholarly, into which whatever new contribution the author of the article has to make fits,” Fallon said. “You get lots of exposition of what people who are on top of the fields would know already.”
Such concerns have been acknowledged by law reviews. The Harvard Law Review, for example, limited the length of submissions after a 2004 study it conducted showed that nearly 90 percent of readers found law review articles to be too long.
In the face of the obstacles associated with student-reviewed law journals, professors said that they would like to see an increased presence of academics in the editing and publication of legal scholarship.
Some contend that peer-reviewed journals deserve a chance and may outperform student-reviewed law reviews, if given a chance to establish a readership.
“[Student-reviewed and peer-reviewed journals] ought to compete against each other,” Dershowitz said. “Let’s see what’s better in the marketplace of ideas.”
Despite the claims that professors are as equipped or willing to edit legal scholarship, Dershowitz said that if the faculty wanted to launch a peer-review journal, they could do so “without much difficulty.”
Others have proposed that law reviews can continue to be student-reviewed, but should gain further input from scholars.
“Perhaps professors could make themselves available en masse once or twice a year to help review submissions,” Zittrain wrote. “Imagine faculty at various stations in a library during a law review-a-thon, able to consult with editors who have questions on the work they're reviewing.”
FOR BETTER OR WORSE
Despite the cacophony of opinions from legal scholars and law review editors past and present, very few believe that the student-reviewed law model is a perfect one.
Yet the barriers for change are immense—student-run law reviews are reinforced by more than a century of prestige and the process of editing legal scholarship is not the most appetizing activity for law professors.
Moreover, though law reviews continue to influence legal scholarship and the reputations of those who are published, their power—in terms of who reads what and who receives tenure—is on the decline, according to Fallon and Peters-Fransen.
“I think everyone recognizes that their importance is less so than it once was,” Peters-Fransen said, calling the continued predominance of law reviews a “historical hangover.”
Although numerous problems persist with student-reviewed law journals, these problems do not seem significant enough to alter the status quo significantly or generate competition from peer-reviewed journals. For better or worse, the student-reviewed law model is here to stay.
—Staff writer Tyler S. Olkowski can be reached at email@example.com. Follow him on Twitter @OlkowskiTyler.