It is law review submission season, so I have had many conversations lately both on and off of social media about the student-run law review system. This recent poll by Professor Derek Muller was interesting, for example.
The quality of law review articles in top law journals is ___ it was ten years ago.
— Derek T. Muller (@derektmuller) February 22, 2024
I think it is a given that everybody thinks scholarly journals should publish better scholarship, and not publish worse scholarship. But as I thought about Professor Muller’s question it seems to me that it’s important to distinguish between the two different kinds of mistakes a journal can make: false positives (i.e., publishing something bad) and false negatives (i.e. declining to publish something good).
Given that no system is perfect, there is exactly some tension between these two goals. If you want to emphasize avoiding false positives then you should probably want a field in which there are a small number of highly-regarded journals with rigorous peer review on the basis of rigorous methods. Many potentially “good” pieces may get screened out of this system, but if something is published in the field’s top journal you can basically take it to the bank.
On the other hand, if you want to emphasize avoiding false negatives then you should probably want a system closer to the current law review system, with many journals applying a much more pluralistic conception of merit, chasing pieces quickly through simultaneous submission. Most pieces that are significant and relevant can find a decent home.
Now neither system is perfect even at the goal it is trying to maximize—there are rumors of corruption in even the most rigorously peer-reviewed fields, and there are still excellent pieces of legal scholarship that somehow don’t fit the fashions of student editors. (And for that latter case may I again recommend the Journal of Legal Analysis, a peer-reviewed law review at Harvard Law School where I serve as a co-editor, especially for public law pieces?).
But I think it’s helpful to articulate this distinction and these tradeoffs, and to remember that some changes that would fix one of these problems would make the other much worse. (For instance, returning to Muller’s poll question, my hypothesis is that the law review system, taken as a whole, has perhaps gotten slightly better at avoiding false negatives (i.e. finding a home for good pieces) even if it has perhaps gotten slightly worse at avoiding false negatives (i.e. letting bad pieces into good fora).
[For previous posts on law reviews, see here and here.]
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