Law School Innovation

An intriguing attack on the traditional law reviews

Thanks to this post at The Faculty Lounge, I saw this interesting new piece from Rachel Anderson titled "Revisiting the Imperial Scholar: Market Failure on Law Review?". Here is the abstract:

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.

Why empirical research is better at raising questions than answers --- some ruminations about ruminations about the Yale clerk study

Guest blogging at Balkinization, John Donohue has this very lengthy post, titled "Why I'd Stick With Yale Clerks -- Some Econometric Ruminations," which takes issue with this new provocative paper based on empirical research concerning Yale law clerks and judicial opinions.  Here is the start and end of Professor Donohue's analysis in the post:

Another illustration of empiricism gone astray is provided by a new working paper by Royce de Rohan Barondes, which adopts the following provocative title: "Want Your Opinions Questioned or Reversed?  Hire a Yale Clerk."  The man bites dog nature of the claim is sure to raise interest in the paper, since Yale is obviously one of the most elite law schools in the U.S., and the hardest to get into. Unfortunately, counterintuitive empirical results almost always turn out to be wrong if they are not based on an appropriate empirical methodology for the inquiry at hand. In my opinion, the methodology of the Barondes is flawed, and the conclusions drawn from this research are either incorrect or unfounded.  My review of the Barondes paper (as well as my own personal experience with Yale Law students) affords little reason to believe that the value of a Yale Law clerk is less than the law school’s preeminent ranking would suggest....

In sum, I am confident that a more suitable methodology than the one employed by Barondes would reveal that Yale Law clerks are extraordinarily capable and effective public servants.  All judges will likely be pleased to hire them.

The dissection of the Yale clerk study between these two paragraphs is effective at raising a lot of great follow-up questions about the Barondes paper.  But, I highlight the start and end of Professor Donohue's analysis because I am really stunned by the initial assertion that there is "little reason to believe that the value of a Yale Law clerk is less than the law school’s preeminent ranking would suggest" and by the ending assertion that he is "confident that a more suitable methodology than the one employed by Barondes would reveal that Yale Law clerks are extraordinarily capable and effective public servants."  (Perhaps this ending assertion was written with tongue-in-check, but the post title suggests otherwise.)

It strikes me as very fitting and valuable for one empirically-oriented law professor to question and critique another law professor's empirical research.  But, I am troubled that the critic (who is clearly biased by where he teaches) concludes his analysis by asserting with confidence that sounder research would prove the antithesis of what the critiqued study suggests.

Perhaps more important than my critique of the Donohue critique is my broader observation that empirical research and analysis is far more effective at raising important normative questions than at answering even descriptive ones.  To focus again on start and end of Professor Donohue's comments, I wonder what judges, professors, practicing lawyers and lay people perceive or believe to be "the value of a law clerk."  Similarly, I wonder what judges, professors, practicing lawyers and lay people perceive or believe to be the ways in which young lawyers can and should be "extraordinarily capable and effective public servants."  Those are the big questions that neither the Barondes study or the Donohue critique really explores.

Harvard's open publishing policy and the outlook for law schools

As covered elsewhere, Harvard's Faculty of Arts and Sciences adopted an open-access policy last week, which obligates faculty to grant the College a license to their publications and to deposit an electronic copy with the College. [Full text of the resolution] Contrary to rumor, the faculty member retains any copyright s/he may have in the publication; the College asks only for a non-exclusive, non-commercial, irrevocable license to the work, with an opt-out possible on individual cases.

Unlike the status quo in the arts and sciences, legal scholarship is largely published in student-run, and therefore law school-owned, law journals. Thus, law schools have largely avoided the escalating fiscal spiral in which their colleagues have been trapped, wherein publishers extract larger and larger fees from schools' libraries for printing works that the schools themselves have largely subsidized. Law schools' journals, while not always the most timely of publishers, don't engage in this degree of profit-extraction. Furthermore, many faculty deposit articles in SSRN or BePress regardless of the paper's actual (or virtual) publication.

The openness of law schools' journals is largely due to history rather than deliberate planning. It gives law schools a huge potential leg up in entering the digital knowledge network, but because it's arisen by happenstance, it's also vulnerable to being undermined. It would be ironic indeed if, as the rest of academia moves towards openness that law schools could be at risk of being hemmed in.

There are, I believe, a few things that schools can do to take advantage of their head start:

1. Formalize their commitment to open publication to remove any doubt about the open (public accessibility) status of law journals. See Open Access to Infinite Content (Or 'In Praise of Law Reviews') and the Open Access Law Project.
2. Commit to a world where not only is all scholarship openly available, but also easily searchable, well-cataloged, and easily repurposed for educational or other uses. (While that may not mean storing the articles in full-blown XML, it almost certainly means no PDF).
3. Execute that vision by leaning on SSRN to become more open and/or networking all law libraries together to create a bigger, better, badder legal research hub. To that end, lay down basic standards (common metadata fields, etc) and a technology platform. To the extent that law journals continue to self-publish, ditch the ad hoc approach and adopt a standard, easy-to-use, fully-supported system made freely available to all journals. Web technology has reached a point where we should no longer be reinventing the wheel across institutions.

In the digitally networked age, legal scholarship enjoys significant advantages over other disciplines in being largely based on public-domain texts. The value of breaking open our research without a third-party mediator (e.g. publishers) is enormous. Let's not squander our advantages here.

- Gene Koo

Do we want on-line production and/or faculty-edited journals to bring the demise of traditional law reviews?

Larry Solum, Paul Caron and others (myself included) have written thoughtfully about the future of legal scholarship, justifiably focusing on the impact of technology on traditional forms of law review production and dissemination.  Somewhat less discussed, though perhaps no less important, is a seemingly growing interest among legal scholars to cultivate faculty-edited journals as an alternative to traditional student-edited law reviews.  (This recent announcement that Harvard Law School professors are launching a new faculty-edited journal, to be called the Journal of Legal Analysis, is Exhibit A documenting this trend.)

Though many are now noticing and effectively describing the modern (and rapid?) evolution of legal scholarship, I have still seen relatively little normative analysis of these trends.  Specifically, I wonder if readers think we should embrace or resist movement away from traditional student-edited law reviews as the primary outlet for legal scholarship. 

Perhaps because I am a blogger and an editor of two distinct peer-review journals (the Federal Sentencing Reporter and the Ohio State Journal of Criminal Law), I tend to endorse the modern migration away from traditional student-edited law reviews.  That said, I hope (and expect) that student-edited law reviews will always play a significant role in the universe of legal scholarship.  I also suspect that the work of promotion and tenure committees will be the most important "market force" shaping these realities.

Posted by DAB

2 reasons to go to conference: Intl Law Superstars and Vancouver!

Link: 2007 International Law Mid-Year Meeting AALS Association of American Law Schools.

This summer, the beautiful city of Vancouver will host the AALS mid-year meeting and this year that meeting will be devoted to International Law.  The lineup of speakers is very impressive indeed. I encourage all international law scholars (and future scholars) to attend.  Here's what the organizers have to say:

Why Attend?
The world is moving so quickly - globalization of trade, terrorist attacks, global warming, preemptive invasions, international courts springing up around the globe - and the law necessarily changes to keep up with it. No one can keep abreast of the ever-evolving face of international law, much less pause and reflect on how these developments affect the way we teach and write about it.

This is the first AALS Mid-Year Conference on Teaching International Law in 11 years. It will bring together teachers and scholars for three days of intensive discussion on how we teach and write about international law and where the field is heading. There will be plenary sessions, small group discussions, and paper presentations. The panelists, drawn from the most highly respected scholars in their various fields, will be around for the entire conference, enabling conversations to continue long after the formal discussions have ended.

The judicial (and judicious?) decline of law review cites

Monday's New York Times has this interesting "Sidebar" column by Adam Liptak entitled, "When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant."  Unsurprisingly, the article includes ruminations that on-line developments and innovations in part explain why law review articles are being cited far less frequently in judicial opinions in recent years.  Also unsurprisingly, the legal blogosphere has been quick with commentary from:

• Jack Balkin with Judges Lose Cite of Law Reviews
• Doug Berman with More grist for the blog-scholarship debate
• Orin Kerr with How Often Should Judges Cite Law Review Articles?
• Daniel Solove with Why Are Judges Citing Fewer Law Review Articles?

Posted by DAB

UPDATE: Here's some more commentary on a topic that I assume will continue to generate buzz from law professors and law bloggers:

• Dale Carpenter with Two more thoughts on the decline of law review citation
• Peter Lattman with Judges Are Ignoring Law Review Articles
• Eugene Volokh with How Much Should Legal Scholarship Aspire To Being Cited by Judges?

As is often the case, Ann Althouse has the most enjoyable of posts on this topic, and it concludes with this fantastic call for action:

[J]udges could change the whole dynamic if they started rejecting law clerk applicants whose law journals published the kind of articles they don't read.  So quit complaining and use your power to change things.  Or are you so beholden to the law professors whose work you don't read that you have to hire their darlings, those law students who publish the articles you don't read?