Wednesday, January 13, 2010

Table of Contents

My colleagues at the Concurring Opinions blog regularly post the tables of contents of "leading" law journals as an informational service to their readers. Generally speaking, "leading" law journals correlate with "leading" law schools, as ranked in US News & World Reports. I have nothing against the US news rankings or against publicizing legal scholarship, but it's not obvious to me why articles published in the "leading" law journals deserve more publicity and recognition than articles published in less prestigious journals.

I have not undertaken a scientific study of the distribution of quality scholarship among the hundreds 200-300  law journals that exist, but in my own (limited) experience, I do not find more interest/useful/important articles  in "leading" law journals than elsewhere. The only such correlation I have found is between peer reviewed journals and higher average quality of scholarship.

One could posit a natural aristocracy among both legal academics and law journals such that (1) individuals hired by top-ranked schools are or become superior as scholars to those at lower-ranked schools, and (2) individuals at top-ranked schools are more likely to have their articles published in top-ranked law journals, therefore (3) top-ranked law journals are more likely to publish, on average, higher quality scholarship. Of these propositions, only (2) seems to be validated empirically. The other two are at least questionable, though perhaps if I taught at a top-ranked law school, I'd be more inclined to accept them. Again, in my experience, quality articles and crap seem fairly evenly distributed among all student-edited law journals.

Even if my own experience is reliable (which it might not be), I can posit at least a few reasons why the contributors to Concurring Opinions might be particularly interested in publishing the tables of contents of elite, and only elite, law journals:

(1) The legal academy, more than many (or most) other academic disciplines, reifies hierarchy. The quality of work seems to matter less (generally speaking) than who is doing it, where they teach, and where it is published. Put differently, name, affiliation, and place of publication become proxies for quality.

(2) Based on (1), many law review authors (regardless of school) tend to cite only or predominantly articles published in the top 20 or the top 40 law journals.For that reason, they are mainly interested in the tables of contents of those journals. They are also interested in those journals because their career mobility is largely tied to their own ability to publish in those, and only those, journals. In this respect, Concurring Opinions is simply catering to its readers.

(3) The sheer number of law journals published requires some line-drawing - there simply is not enough space to publish all the tables of contents. Line drawing based on some presumed hierarchy makes as much sense as any other approach. Hypothetically, it might be preferable to highlight only the most interesting (or interesting-looking) articles from all law journals, but the transaction costs of that approach would be quite a bit higher.

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