History, law, and cite-checking

[James Maule]

How does one define "peer"? Academics writing for academics? Or professionals (lawyers) writing for professionals (lawyers) regardless of the venue in which the lawyer is being a professional.

I prefer the latter definition. In the tax world (and perhaps this is not so in most other areas of the law), there are several dozen journals in which peers (lawyers) review the articles before they are published (assuming they are accepted for publication). The work is far from sloppy, rigged only to the extent that those who have published with a history of submitting well crafted articles become favored and sought out, and fairly rapid in part because of the requirement of timeliness in a rapidly-changing area of the law. Some (e.g., the Tax Lawyer) usually have law faculty among those doing the reviewing. The product is a reliable set of frequently referenced materials. Yet the academy considers the slow, nit-picking, editorially inexperienced, biased (NOT everything gets put out there), student-operated journals to be the pinnacle of scholarly publishing. Ha. Sometimes I think there is great fear of peer review on account of what it might do to the existing process, because it might rock the boat enough to wash some things and folks overboard.

I suppose the reality of economics has something to do with this. But that is another (interesting) issue that reaches into some troubling questions about priorities not only in the academy but among practitioners and citizens.





Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)




>>> Lawrence.Solum at LLS.EDU 01/24/01 12:51PM >>> writes

I don't disagree with anything Paul says, but I don't think we should over
romanticize the peer review process, in which I have been involved as both a
reviewer and as the reviewed in journals from three disciplines.  First,
peer review is frequently incredibly sloppy.  Reviewers get backed up, do
careless reads, and react fairly thoughtlessly to articles from perspectives
with which they disagree.  Second, peer review is frequently rigged.
Editorial boards have points of view, favorites, and pet peeves.  Editors
know who to send something to, in order to kill it.  Editors know when they
get a piece from a favored or star author, how to get it reviewed favorably.
Powerful members of the profession know how to "arrange" an acceptence for
their star recent graduate or graudate student--in order to launch a career.
Third, peer review is often incredibly slow.  Of course, there is lots of
competition for the slots in the premier venues.  (Tenure may be
automatically denied if you don't publish in one of these at many
universities in many venues.)  You submit, you wait for months, you get
rejected, you try at a second tier journal, and if you are very unlucky, it
can take three or four years from completion to publication.

The law review system puts everything out there.  Citation rates create a
pretty good measure of what's good and what's bad.  If we did peer review
our journals, we would be faced with a significant dilemma.  Many journals
would have to either be shut down or get some marginal stuff through peer
review.  The third, fourth, and fifth tier journals in law simply don't get
enough material to pass scholarly peer review.  I suppose we would have to
peer review student notes and comments, and I would guess that rigorous
review would result in about 95% of them being killed.

My bottom line is that a mixed system is a pretty good one.  Law could use
more prestigious peer reviewed journals, but I, for one, am dubious that a
completely peer reviewed system would be nirvana.

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