Legal scholarship sucks. It?s interminably long. It?s relentlessly boring. And it?s confusingly esoteric. But the worst thing about legal scholarship is the footnotes. Every sentence gets one1. Banal statement of historical fact? Footnote. Recitation of hornbook law? Footnote. General observation about scholarly consensus? Footnote. Original observation? Footnote as well, I guess.
It?s a mess. In theory, legal scholarship should be free as a bird. After all, it?s one of the only academic disciplines to have avoided peer review. But in practice, it?s every bit as formalistic as any other academic discipline, just in a slightly different way. You can check out of Hotel Academia, but you can?t leave.
Most academic disciplines use peer review to evaluate the quality of articles submitted for publication. In a nutshell, anonymous scholars working in the same area read the article and decide whether it?s good enough to publish. Sounds great, except for the fact that the people reviewing an article have a slew of perverse incentives. After all, what if the article makes arguments you dislike? Even worse, what if it criticizes you? And if you are going to recommend publication, why not insist on citations to your own work? After all, it?s obviously relevant and important.
But the problems with peer review run even deeper. For better or worse, it does a pretty good job of ensuring that articles don?t jump the shark and conform to the conventional wisdom of the discipline. Of course, conformity can be a virtue. But it can also help camouflage flaws. Peer review is good at catching outliers, but not so good at catching liars. As documented by websites like Retraction Watch, plenty of scholars have sailed through the peer review process by just fabricating data to support appealing conclusions. Diederik Stapel, eat your heart out!
Anyway, legal scholarship is an outlier, because there?s no peer review. Of course, it still has gatekeepers. But unusually, the people deciding which articles to publish are students, not professors. Why? Historical accident. Law was a profession long before it became an academic discipline, and law schools are a relatively recent invention. Law students invented the law review in the late 19th century, and legal scholars just ran with it.
Asking law students to evaluate the quality of legal scholarship and decide what to publish isn?t ideal. They don?t know anything about legal scholar
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