The Ivory Tower Prisoner’s Dilemma

Why law journals are useless, and why we can’t do without them

“Are [scholarly law] journals even useful nowadays?” Francis Lévesque asked this question in response to a Twitter discussion about the ideological problems that plague the system of peer review, which screens articles published in such journals pretty much everywhere except in the United States. Since I already complained about these problems in a recent post, I might as well reproduce a slightly expanded version of my answer. In short, I think that journals are useless, but they remain, and probably will remain, indispensable due to academia’s collective action problem.

Why are journals fundamentally useless? Because nobody actually reads them. I don’t mean that people don’t read what is in the journals. Well, often, they don’t. But sometimes they do. And not just academics, though admittedly that’s often the audience for which scholars write. At least some articles attract the attention of practising lawyers and of judges. But here’s the thing. People read articles, not journals. Journals as physical or electronic objects, i.e. assemblages of several articles that share a masthead and a typography and not much besides, appearing several time a year, are obsolete and unnecessary.

The reason for this is, of course, that you don’t need a journal, whether in physical or electronic form, to find articles, which, to repeat, is what people (sometimes) want to read. Articles are mostly either discovered by word of mouth ― again, literal or electronic (say posts, for example on this blog, that mention new articles) or found through databases such as HeinOnline, CanLII, or SSRN. Perhaps a few journals ― think, the Harvard Law Review ― are prestigious enough to command attention in their own right. Perhaps some specialized journals are of interest to people in particular areas of research or practice. Thematic issues of particular journals might also be interesting as collections of articles. But the ordinary, generalist journals? Nope. If I read an interesting piece that was published by, say, the McGill Law Journal, I’m not going to even bother looking what else was in the same issue.

But while journals as platforms for scholarship are largely useless, journals as institutions are not. They provide bundles of services some of which may be useful, and one of which makes them indispensable. The maybe-useful services are the ones you are probably thinking of. In particular, journals review and select manuscripts (what a quaint word for things that haven’t been written by hand this past century!), and edit the ones they choose, and journals ensure that published articles are transmitted to databases where they can, hopefully, be found. The indispensable service is one you might also be thinking of but wouldn’t want to admit to be: signalling.

The maybe-useful stuff should be really useful, but it isn’t always, as it turns out. The review and selection process is sometimes ― and perhaps more commonly than I would have thought ― tainted by ideological gate-keeping or simple turf wars or even cronyism and rank snobbery. In the United States, the problems are a bit different, since it is student editors who are fully in control or editorial decisions, without input from peer reviewers, but things are not necessarily better overall. The editing can be hit-or-miss ― sometimes useful, but sometimes the editors try to impose arbitrary ideas of what good writing should look like on authors who actually have more sense and experience. Even the transmission-to-databases function, which is genuinely important ― it’s one massive advantage journals have over blogs, for which no equivalent of the journal databases exists ― works better with some journals than with others. North American student-run journals are widely available; the ones owned by publishing companies such as the University of Toronto Press, the Oxford University Press, SAGE, etc, are sometimes only available through their proprietary databases, which makes the difficult to find.

Signaling is another matter though. Journals provide it reliably because they don’t actually need to do anything to provide it. Their reputation just exists ― in the case of journals associated with particular law schools, primarily as a result of the school’s reputation. But it becomes a self-fulfilling prophecy. Publishing in a particular journal, or category of journals, marks you as a successful scholar, so people who want to be known as successful publish in these journals, which helps preserve their reputation, and so on and on.

Yet despite being the result of little more than bootstrapping, this signalling function is very important to academics. Your disciplinary peers ― those who write in the same area as you ― don’t need it. They can assess the value of your scholarship directly, by reading it. But others can’t do that well, because they lack time and interest, and because they just don’t know enough about your particular area. The latter problem is getting ever worse, as legal scholarship becomes more and more specialized. And these others matter in a scholar’s career: they are the members of hiring and promotion committees, and perhaps those who assess proposals for funding agencies (though I lack experience to speak to that). Not being able to assess a scholar’s output directly, they look for informational shortcuts and proxies. Journal prestige is the most obvious one.

As a result, unless you’ve achieved everything you wanted in your career and have no aspirations for further promotions or going to another school, or unless you can signal your productivity and quality through books alone (and I don’t think many legal academics can do that), you can’t afford not to chase the signaling that journals provide. Even if you believe that the signal is actual mostly noise, even if you think it means little, you can’t ignore it. You are competing against people who might not share these views and get all the signal they can, and the judges of that competition might actually believe that the signal is meaningful.

The result is a classic prisoner’s dilemma. It’s in your best interest to act in a way you know is sub-optimal for the scholarly community. You know that if you don’t, you’ll be, to use a technical term, screwed. One might devise alternative systems for publication. They could well provide the useful services that journals may or may not be providing now. They might even try to provide their own signaling. But unless almost everyone buys into the same alternative system more or less at once, you’ll have to be mad to go for one in particular. What if it doesn’t take off? Then your efforts to establish your reputation have been wasted, and your career is compromised.

So we are stuck. Perhaps some senior scholars can take the lead and establish a new system. Perhaps then those of us who still have careers to make can follow them. But I’m not optimistic. That said, if you think I’m wrong, and especially if you have concrete ideas, I’d love to hear from you. It would be nice to be wrong about this. Mr. Lévesque thinks I am, but I’m afraid that his technological optimism is no match for my collective-action pessimism.