Monday, November 27, 2006

More on Open Admission Law Journals

NJLS and I have been duking it out a bit on this issue in the comments here and here. Although NJLS raises some interesting points, I still have to respectfully disagree.

  • Yes, law journals confer various benefits on their members. But that's an argument in favor of open admission, not against -- why not allow all students to reap those benefits? Also, if the educational value is so great, why not have law schools require that all students participate? If there is a need for a "credential" for employers to screen students beyond grades, you can create one and not tie it in with legal scholarship.
  • NJLS raises the issue of quality assurance under an open admission system. However, putting aside the question of whether the current system even does a good job ensuring quality, one simply has to look at Canadian journals and the open admission secondary journals at Harvard. I have never heard anyone criticize Canadian law journal articles for their citation format, and six Harvard open admission secondary journals are among the top 35 most cited law journals, so they must be doing something right.
So, I remain unconvinced that law journals actually benefit from having selective membership criteria. In fact, I now have embraced the opposite view -- law journals that seek internal selectivity are more likely to make make bad decisions, stick to poorly constructed policies, and fail to embrace innovation. But I expect to elaborate a bit more on that in future blog posts.

UPDATE 11/28: NJLS responds in the comments section. Definitely worth reading.

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Blogger David said...

Alright, here is my best effort at an omnibus response to points raised on this thread, Moneylaw, and the previous thread below ("Jeff Harrison and Orin Kerr on Journal Proliferation").

1. I do not believe benefits of journal membership are exclusive to EICs/articles editors. The critical skill sets that I believe are worthwhile are just as likely to be gained by any journal member (indeed, the EIC probably likely spends less time w/ editing than he or she does with administrative tasks).

2. Questions were raised about what the critical skill sets actually are. A valid question. They are much more than simply "reminding 2Ls where the law school library is." (Indeed, knowing the location of a library would not be a skill, but substantive knowledge). Whether in litigation or transactional law, I can't fathom a more important skill - as opposed to substantive knowledge - than the methodical practice ensuring that propositions are supported in precedent and substantiated with accurate references.

3. The necessity of a uniform system of citations is inextricably bound with the process of substantiating propositions. I would argue that it is not the system of citations that frustrates scholars, practitioners and students, it is the over-use of them. A fine distinction, but critical. The footnote fetish is positively inefficient, and is the reason that references such as the Pocket Part and PENNumbra are so successful.

4. I argued that "the construction of coherent, complex, original, and substantiated arguments" is a critical element of journal membership. To clarify, I was referring to the student-author's writing process. As I noted on Moneylaw, this benefit need not be exlcusive to selective journals. There is a time and place for a Volunteer Law Review (hat tip to Dean Chen also on Moneylaw) -- if it is done well, publishing quality articles that are source-booked and subject to editorial revision, then I completely support them. Without such safeguards, I would be wary of extending a school's imprimatur to what would otherwise amount to a complilation of AWR papers (which can be as, if not more, deserving of publication as the final product of journal members, yet the fact remains that such papers may receive all but cursory review by faculty).

5. Multiple commenters have noted that effects on employment opportunities should not be a concern in considering the pros and cons of journal policies. I disagree. I noted earlier that employers seem less concerned about which journal a student is on so long as she is on a journal. I think that law schools should take every step to broaden their students marketability - and if that means responding to student demands for a volunteer law journal, then it should be done. My concerns above remain, however, and I do not believe a law school would do well to lend its name (or its student's tuition) to creating a journal without safe-gaurding procedures in place.

6. As for stripping student names from work, I agree that it is already widespread, and the one sentence byline that a research assistant may receive hardly reflects the work they perform. Offering the suggestion was meant to highlight a potential contradiction that I see in considering a VLR to be desirable because it attracts authors who write "for the love of the game." If the piece was truly about contributing to legal-scholarly community (as opposed to advancing the author's career), then it would be anonymous. As should evident by my focus on employment opportunities, this is not a course of action I support.

All of the benefits listed here and in my other postings should be available to all who seek them. This cannot be achieved through a selective journal-only approach. There is room for VLRs, yet I firmly believe that any such venture must implement safeguards to ensure that authors gain the desired benefits in their participation with a VLR, and do not simply have a publication that they can add to their resume -- an end result that I think all would agree should be avoided.

11/27/2006 9:49 PM  
Blogger Anthony Ciolli said...

1) But isn't there significant educational value in those "administrative tasks" (like, you know, *selecting articles for publication*)? To my knowledge, the only law review in the entire nation that lets its lowest members have a say in the article selection process is the Harvard Law Review. So, I think it's inaccurate to say that the biggest educational benefits of journal membership are not exclusive to EICs and articles editors.

2) Isn't this supposed to be taught in legal writing class? And once again, if law journals (particularly flagship law reviews) do such a great job teaching this, why not let everyone benefit instead of just a select few?

3) You're right, but do you really believe that student-edited law journals do not over-use citations? Keep in mind that the Pocket Part and PENNumbra don't even claim to be real law journals.

4) Since you concede this isn't exclusive to selective journals there's no need for me to respond, although I don't think law journals (at least those I'm familiar with) do a good job with the student-author writing process.

5) I don't know what things are like at your school, but at Penn employers certainly do care about what journal you are on -- the job offers you'll get with a 3.3 GPA and law review vs. a 3.3 GPA and a secondary journal are like night and day.

To be quite frank, I'm not even sure I understand this "safe guards" issue. If I understand you correctly, you're concerned about walk-on editors doing bad jobs with bluebooking etc. But I don't see why an open-admissions journal can't just operate the same way as other journals do, by disciplining / kicking out people who don't perform.

As for schools funding such journals, I don't think schools should fund any law journals, period. Any law journal following the most basic managerial principles can easily make a revenue surplus, let alone break even. And if it can't, well, maybe that journal shouldn't exist, or should only operate online. Personally, I think one of the benefits of open admissions law reviews is that it would pretty much end the proliferation of unnecessary secondary journals.

6) But student names aren't stripped from work where students are primary authors. The only journal I know of that even does that is the Harvard Law Review. Research assistants, of course, raise a whole other set of issues, but that's not what I was addressing earlier.

In any case, my objection was to your suggestion that student authors be anonymous (with it implicitly implied that faculty authors would not be anonymous). I don't think all academic works should be anonymous, but I don't see why works by one set of authors should be anonymous when works by another set of authors are not anonymous. My philosophy is that faculty, students, practitioners, etc. should be treated the same way in this process.

Very interesting discussion.

11/28/2006 12:46 AM  

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