History, law, and cite-checking

[Paul Finkelman]

While Eugene considers cite checking as part of the continued assault on
Bellesiles, it is worth thinking about these disciplinary matters in a
larger context, and perhaps getting over Bellesiles for the moment.  It
is also worth noting that Bellesiles's book was not published by an
academic press, although it was published by a very serious commercial
press.  But, commercial presses (no matter how serious) are often driven
to hype a book beyond what it says.

Here are a few ways in which history and law publishing really do
differ.

Peer reviewing:

        All history journals I know of go through a blind peer review
process; reader does not know author; author does not know reader.
Usually for articles there are 2-3 reviewers, but sometimes many many
more; I know of one article that was accepted after over 20 readers
passed on it.  That is unusual, almost extraordinary, but 4-5 is not all
that usual.

        By contrast, student editors, who usually know very little about
anything, make decisions on what to publish in all but a few law reviews
(Chicago-Kent has a wonderful faculty edited process).  Thus, the
decision to publish is based on what students like, or think is current,
and not on the quality of the scholarship.  Cite-checking, which has
some  merits, especially for catching small errors, does not get to the
issue of quality of the idea or the argument.

        Most important historical work is done in books, which are peer
reviewed by academic presses.  I edit a book series at Univ. of Georgia
Press.  (Southern legal history -- very broadly construed -- if anyone
out there in  cyberland has a manuscript).  Each manuscript is reviewed
by my co-editor, Kermit Hall, and by me.  It is also read in-house by a
history editor.  It is then sent out to 2 or 3 outside reviewers. Only
when everyone signs off on it, is the book published.  Sure we miss
things, but the process is pretty good on the macro issues, although
obviously not for cite checking.

        Books are then reviewed in journals.  Thus, other scholars have
a chance to support or attack the arguments and the research (as Michael
Bellesiles is finding out.)

        Most law professors publish articles in law reviews without peer
review, without outside or inside reviewers (as in books) and without
the likelihood of a "book review" type response.  I dare say that most
law review articles are never read by anyone except the author's mother
or father.

When evaluating the seriousness of the scholarship, it is useful to take
all this into consideration.  Quite frankly, I think legal academics
could learn a great deal from the social sciences or the hard sciences
about the review process and about the decision-making process.  By and
large, it seems to me that the purpose of most law reviews is to give
students a line on their resume and to help them get  jobs and get ready
for jobs.  This is fine.  I wish the social sciences and humanities had
such opportunities for graduate students.  But at the same time, there
is something truly nuts about having the trainees decide in effect who
might get tenure!  Furthermore, there is something unethical, I think,
about the relationship between faculty (especially untenured faculty)
and law reviews at their own school.  I have always been surprised that
laws schools don't have a blanket policy of not *allowing* their faculty
(especially those who are untenured) to publish in their own law
reviews.  The pressures are simply too great on all sides.



--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu