Scholarly publishing is often presented as a paradigm of how scholarship should work: disinterested, rigorously peer-reviewed, and hence scrupulously fair. It came as a surprise to me to find there are some areas of scholarly publishing where this state of affairs is not quite the case. Legal publishing appears to be an exception to the above description. The Harvard Law Review, for example, is edited and published by law students at Harvard University Law faculty. In fact eight out of ten most cited law journals are edited by students at the university to which the journal is affiliated, according to an article in The Crimson, the Harvard daily college newspaper
The Harvard Crimson article points out that editing the Harvard Law Review is an honour. Students compete to demonstrate their legal and editorial knowledge to be able to work on the journal. Nonetheless, the fact remains that the journal is published at Harvard by Harvard students and of course includes several articles written by members of the Harvard Law faculty.
I was astonished to learn about this – I assumed all scholarly journals are peer reviewed. However, there is plenty of confirmation that law reviews are not peer reviewed – see, for example, articles by Richard Posner (1995) and Nancy McCormack (2009), who states: “Law review … submissions were, and still are today, for the most part selected and edited largely by students with some assistance from faculty.” Law students are “the gatekeepers of the academic study of law, to the astonishment of other scientific disciplines” (Stolker 2005)
It would seem that at least as far back as Richard Posner’s 1995 article, some academics have been arguing for a switch in the system to full peer review. But there seems to be little enthusiasm for it at Harvard. Said Harvard Law School professor Jonathan Zittrain: “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.” That comment seems to make publishers the villains. Joel Mallord, editor of the University of Pennsylvania La Review, had an even more intriguing justification: other than students, “who else has time to check that sources say what the authors claim they say?”
So the question is, is there perhaps a chance that the students might be just a little bit biased towards selecting articles by their own teachers? As it happens, there is an academic study that looks at just this issue. Albert Yoon, of the University of Toronto, wrote an article in 2013 on Editorial Bias in Legal Academia, revealing that (unsuprisingly) law reviews publish more articles from their own faculty than from other institutions. Moreover, law academics have an easier path to publication via their own law journals than elsewhere – and “home-grown” articles are of a lower quality than articles published in “neutral” journals (based on the principle that number of citations corresponds to article quality).
So have all legal journals switched to peer review? Since Albert Yoon’s article was only published in 2013, it would seem not. In fact the article referred to above, published in The Harvard Crimson, is called “Despite alternatives, student-run law reviews here to stay”.