Judges Citing Law Reviews Less
Adam Liptak notes that law reviews are increasingly less cited in judicial rulings. He offers a number of plausible explanations for this but this seems to be the most likely culprit:
Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them.
Orin Kerr observes that, in addition to the increasing role of law blogs in doing analysis of cutting edge cases, the advent of searchable databases allows judges and their clerks to easily look up original case law, partly obviating the need to cite secondary sources. His commenters, many of whom edit law reviews, agree with Liptak that most articles are esoteric, unoriginal, and mediocre.
It has long seemed to me that law reviews are inherently flawed because they are an extracurricular activity for law students rather than true peer reviewed journals such as dominate, so far as I know, every other academic discipline. It’s unclear to me how even a very bright 23-year-old with one year of law school behind him is qualified to assess the original contribution to the literature made by a submission.
In political science, by contrast, editors send out articles to two or three PhDs who have a record of publication in a particular subfield. While that introduces problems (reviewers are often miffed if their own indispensable contribution is not cited in the lit review) it assures that published pieces have been vetted by legitimate experts and makes it quite likely that they advance the search for knowledge. It does not, sadly, render them less esoteric.
While it is true that law reviews are student edited, it’s hardly the case that a single “bright 23-year-old with one year of law school” is making the total decision with regard to what is the original contribution toward the literature made by a submission. There are a team of editors (many of whom have advanced degrees in fields other than law) poring over the multitude of submissions received by the journal, with a network of support from faculty, alumni, and even other law journals to guide them in deciding which submissions would best be offered.
This isn’t to say that there aren’t poor decisions made, from time to time, by editors, but their status as students hardly makes them less qualified than the majority of lawyers who practice in specialty areas and are only really qualified to weigh in on their arena of expertise. Indeed, relevant issues are not infinite, and while some articles dealing with them are published, you can rest assured that for every one that makes it to press, five duplicative articles weren’t published on the same subject becuase Yale or Chicago got there first (and got the pick of the best).