Alisa Lazear’s excellent column on peer-reviewed publishing made me think about another model of legal publishing, student-reviewed law journals. From my personal experience as a student member of one of these journals, and my current role offering support to law journals in my position as an academic law librarian, one of the most frustrating aspects of a student law journal is the lack of institutional memory. The journals find themselves doomed to repeat mistakes, the members are frustrated, and the experience is less pleasant than it could be. One of my former colleagues refers to the student-run law journals as amnesiacs: “every year they wake up and forget the year before.”
The root cause of this loss of institutional memory is the stratification of the students into two distinct roles, based on class year. In the US, most law students study for three years, but aren’t eligible for law review membership in their first year, so they can only be journal members for two years. Most journals assign the second-year students to edit the written work, with most of the third year students in positions of authority, reviewing second year student work. The issue is that that means that all of the second year students are in a cohort of ignorance; none of the editors have ever edited before. The third year students are leading based mostly on their own experiences as followers the year before. The former leaders are almost all in their first year of employment as licensed attorneys, so despite their best intentions, most are lacking in spare time to return for advice and assistance.
Imagine a bank with only two tiers of employees; tellers and CEOs, and a forced one-year turnover. Every year the bank would hire a new crop of tellers, and all of the new CEOs would be elected from amongst the previous years’ tellers. The former year’s CEOs would all be working at other companies; technically available for advice, but functionally too busy to be of much use. It is absurd, of course. Being a teller would not prepare someone to step into the role of CEO without some intermediate steps. Of course the two tiers of student positions on a law journal are more similar than bank tellers to banking CEOs, but there is still a large gap that is hard for the new leaders of a journal to bridge.
I would like to reiterate here that I am speaking from my personal experience, and that in my experience, the students who lead journals are dedicated, hard workers who make the best of this tricky situation. Of course the journals do have institutional memory in the form of faculty advisors and librarian support, but I have yet to meet a law school faculty member or librarian who brags about a multitude of free time with which they can assist and instruct the student-run journals. There is also a tension whereby the faculty member wishes to let the students have as much control as possible, without allowing them to make large or embarrassing mistakes. It is important that if the journal is considered to be student-run, the students on the editorial board are actually gaining the leadership experience which their CV will later suggest.
How can this problem be solved? Each journal will have its own specific challenges, but I would suggest a good first step would be to formalize a leadership track; stop the stratification of roles by class year. Currently most journals hold an election in the spring, voting upon the next year’s board of leaders from among the rising third-year students.
Rather than annual elections, I would suggest creating two tracks of positions, based on students’ personal preferences and skills. I would suggest that students self-identify as preferring a leadership track or editor track when they join the journal at the end of their first year. (There would probably need to be some guidance given to ensure that students understand the two choices before they choose their “track”). With two tracks, some second-year students could hold positions on the editorial board. Then, in their third year of law school they could be in their second year on the board (assuming satisfactory performance in the first year). In that way, the board would not have 100% turnover each year, but could have up to 50% new students and 50% returning students. Positions on the board could be assigned on merit alone, helping to ensure continuity for the journal.
If some second year students self-identified as preferring to be editors, with no aspirations to leadership roles, they could hone their skills in their second year and pass on their knowledge to the new editors in their third year. (I should note that there are already third-year students who remain as editors because there are simply not enough positions of authority for all third-year students to be elected to the board, but in some years many third-year students who are not elected to the board will leave the journal, and others will leave the journal to focus on other commitments in their third year). Some students are excellent editors, with attention to detail and meticulous attention to citation rules. Journals could also give these returning editors a formalized role teaching the next batch of editors. Their editorial tasks could be slightly reduced to allow for time to create training materials and hold workshops or drop-in meetings to solve problems for the other editors.
The counter-argument to this two-track plan is that employers are impressed by leadership roles and the titles conferred with board membership. But employers should value the time and effort put into this voluntary activity no matter the student’s role; and the students might value their time more if their tasks were more suited to their preferences. Not everyone aspires to be a leader, and not every student is suited to be an editor. Furthermore, there is inequality of prestige in the current system: there is only one editor-in-chief. A two-track system would not be able to make journal membership hold equal value and prestige for each student involved, but could make the experience better for all concerned.