May 23, 2008
Many flavors of law school
Over the past few issues of the AALS News, AALS president John Garvey (Dean of BC Law) has written about the importance and value of pluralism in the legal academy as a whole. I'm a fan of both Garvey and his focus on this issue.
There are strong forces right now pushing law schools to assimilate to common norms. The strongest of these, perhaps, is the perceived importance of the U.S. News rankings. Because those rankings give serious weight to only a relatively small number of factors, law schools across the spectrum are making similar decisions (for example, hiring those with the potential to do national scholarship) which are likely to diminish some of the distinctions that have traditionally existed between schools.
Perhaps the largest of those distinctions, historically, has been between the "graduate school" model of education which has emphasized scholarship by the faculty, and the "professional school" model which instead emphasizes teaching skills. In conversations with those working at third and fourth-tier law schools, I have been impressed with two things: First, the strength of at least some elements of their program (usually on the teaching side), and second, their desire to change so as to no longer be a third- or fourth-tier school. Universally, the reaction to this desire is to put more emphasis on scholarship.
Regardless of whether this increased emphasis is good for a school or not (that is an ongoing argument I won't enter here), it will probably make American law schools less diverse, as purely professional schools become more rare.
-- Mark Osler
May 21, 2008
An intriguing attack on the traditional law reviews
This article argues for reforms in the institution of student-run law reviews. Specifically, it calls for an increased understanding of the potential for bias in the article-selection process. Further it calls for institutional retraining to support the implementation of new article-selection criteria and standards and facilitate more accurate evaluation of scholarship.
Student editors often evaluate legal scholarship based on assumptions stemming from socio-cultural understandings of law and society that do not address or incorporate the breadth of American society across lines of race, class, gender, and sexual orientation. This should not be surprising. No one scholarly norm or standard can rigorously analyze the full range and extent of the breadth and depth of American society. This inherent inability demands a plurality of ideologies, methodologies, norms, and standards to facilitate and ensure a complex and rigorous intellectual debate. The reforms I suggest are intended to address the hurdles that law review editors must overcome to effectuate a more intellectually rigorous and informationally valuable article-selection process.
This article uses a hybrid methodology employing the tools and insights of both critical race theory and law and economics. It begins with issues of bias in legal scholarship raised in the two preceding decades by Richard Delgado, a leading critical race theorist, and Edward Rubin, a former Chair of the Association of American Law Schools Section on Socio-Economics. Then, it follows in the tradition of law and economics scholars and Nobel Prize winner Gary Becker utilizing the tools of economic analysis in non-market contexts. Specifically, this article utilizes economic theories and concepts such as market failure, informational asymmetry, switching costs, and network effects to develop a deeper understanding of institutional bias on law reviews. Finally, it employs scholarship on rhetoric and critical reading skills to identify opportunities for reform.
Harvard University Press to publish open access, peer-reviewed journal
Harvard University Press has unveiled its deal to publish the open access, peer-reviewed Journal of Legal Analysis. This development is interesting not just in piling on to the open access movement, or pushing peer review into legal academia, but because it raises some fascinating questions about the role of university presses in the digital age. HUP, like its peers, is an arm of a nonprofit institution, so it is under different pressures than the for-profit press. On the other hand, sales of paper publications still generate revenue... so what happens to publishers and journals when "publication" is both digital and open?
- Gene Koo