A few weeks ago I had a thread on student edited law reviews (here's the most recent post, with a summary of links).
This list of the 10 best corporate articles appearing in 2003 (of the corporate bloggers, Professor Bainbridge makes the cut) got me thinking: is there some objective way to determine the best law review articles? If there is, maybe we could guide our student editors.
One thing that makes me think there is is that all of the articles on the 10 best list were, in fact, pretty good (I don't suffer particularly from envy, but I admit to feelings of resentment when I get bested by inferior products, not the case here.) Moreover, interestingly, they were all published in good law reviews, indicating that the students have some idea what they're doing. Undoubtedly, though, the correlation between article quality and law review rank is far from perfect.
Here's a very preliminary first cut at this task of an objective test of law review article quality:
--There must be a clear and and at least fairly original central idea. E.g., Ayres and Choi on outsider trading, Bebchuk et al on the role of staggered boards, Choi and Fisch on voucher financing, Gilson and Schizer on venture capital structure, Bainbridge on director primacy.
--The idea has to make sense. Here's where law review editors sometimes fall down: they like "interesting" ideas. But these are supposed to be academic journals, not newspapers. Interesting doesn't cut it. It's nice to have testable hypotheses, and even better if there's a stab at testing them. E.g., Bebchuk et al on state competition. Or the article might explain prior cases in a novel way that actually meshes with the cases, or offer specific policy recommendations.
--The article should seriously consider counter-arguments. There is what I view as a particularly irritating style of article that poses its idea and then marches through counterarguments as if they were nothing more than straw men.
--The article should demonstrate mastery of its subject. In other words, the author should know what she's talking about. This particularly includes knowledge of prior literature in the area.
--The article should actually have been tested in the marketplace of ideas prior to publication. This includes presentation at workshops and, at a minimum, posting on SSRN. Recently I read an article published in a top journal on LLCs, a subject I know a fair amount about, that violated several of the above rules. It had not been posted on SSRN or, as far as I could tell, generally distributed. If legal academics are to join the rest of the academy despite the absence of peer review, we should have something like a vetting process. (Indeed, I wonder if SSRN downloads might offer law review editors some kind of rough quality proxy.)
Obviously there could be a lot of argument about the above, and factors I've admitted. I'd like to hear other ideas. It would also be interesting if, when the list is fully developed, the factors were shown to predict which articles get published in top journals.
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