Sunday, January 28, 2018

The Law Professor Bait-and-Switch Trick

I’m convinced that law professor misbehavior is driven by the group’s rather unhealthy obsession with rank and prestige.  More specifically, many law profs have never practiced law, and most of those who have practiced have done so for very short periods of time (1.4 years, according to one study) in very sanitized settings (e.g., writing briefs but never meeting a real-life client, let alone representing one in a business transaction or jury trial).  Without any law practice experience to draw upon, this leaves the law profs to judge each other by the U.S. News ranking of their law schools and of the law journals in which they publish.

In order to jack up their law schools’ rankings, law profs (and, more commonly, law school bureaucrats) have engaged in numerous scams, including (1) outright falsifying their schools’ admissions and employment data, (2) touting misleading employment statistics to entice today’s mushy-minded college grad to enroll in their law schools, and (3) under-reporting their law school graduates’ debt load, among other scams.  You can read about these and other law prof tricks in Ben Trachtenberg’s recent article, Law School Marketing and Legal Ethics.

And then there’s the profs’ law review publishing ploys.  I recently wrote this essay explaining several tactics that law profs use to maximize the prestige of their article placements.  These tricks include fabricating offers out of whole cloth in order to request expedited reviews from journals, fudging the terms of their otherwise legitimate offers when expediting to “better” journals, and submitting articles to low-ranked journals (where the profs would never, under any circumstances, actually agree to publish) just to get that first offer and jump into the expedite game.  

But since publishing that essay, I have become aware of an additional law prof trick.  As Ryan Scoville writes, when submitting their articles to law journals, some profs will “insert exaggerated claims of novelty or significance into their submission to student editors and then, after securing a satisfactory offer of publication, moderate those claims in drafts made available to colleagues and the public. By doing so, the authors manage to improve their chances at a desirable placement and avoid unscholarly claims before peers.”

It’s yet another gross, slimy ploy in the law profs’ prestige-driven bag of tricks.  (I just wish I knew about this scam when I wrote my essay.) You can read more about this bait-and-switch tactic, and its prevalence, in Scoville’s article The Ethics of Baiting and Switching in Law Review Submissions.

And with the Spring 2018 law review submission season nearly upon us, the lesson for law review editors is this: Be leery of law professors’ claims.  For example, if a law professor has to explicitly tell you (in the cover letter, abstract, or the article itself) that his or her “piece” is “interesting,” “novel,” or “groundbreaking” — well, buyer beware.


  1. Clearly this has been an age old problem where irrelevancy parades as scholarship.

  2. Well put. I suppose that is the problem at the heart of it all.

  3. Most people do not understand that Law Reviews are not peer-reviewed journals, like the Journal of the American Medical Association (JAMA). They written (in part) edited (in whole) and published by students, like a high school newspaper. As an attorney, I avoid them like the plague and would never argue before a judge based on a student-produced publication.

    1. dilbert112 (great name, by the by),

      Many law review articles are not meant to be argued before a judge. For example, I wrote one titled "An Alternative to the Wrong-Person Defense." The title speaks for itself. If a lawyer finds the proposed alternative defense useful, he or she can use it; if not, then he or she doesn't. An article like that is used often, but rarely cited.

      But aside from that, some law reviews ARE peer reviewed. I've coauthored an article in a Columbia journal that is peer reviewed. (Harvard, Stanford, Yale, Ohio State, and others also have peer reviewed journals.)

      It is true, however, that most law reviews are not peer reviewed but are "refereed." But peer review isn't what most people think, and it's not all its cracked up to be. First, it certainly isn't "study replication," for example.
      Rather, peer reviewers just offer comments on what they like and didn't like about the article, and then the editor considers that before deciding to publish. And the peer reviewers can be mistaken when making their comments. It's easy to become a peer reviewer, and there is no reason to think that the peer's views are better than the author's.

      Here's a great article on the flaws of peer review:

      And there's a section on peer review in this article that I coauthored with a psychologist:

    2. OK. . .well my name is Thomas J. Madden Jr., and I am a criminal defense attorney in Maryland. You say "it's easy to become a peer reviewer". Well. . .if you define "easy" as it's easy to get a college degree, then a law degree, then pass the bar, then practice for while, well, in that context, I suppose it's easy. But. . .factually. . .law review members and editors and some of the law review writers are 2nd and 3rd year law students. They aren't lawyers, they certainly aren't experienced lawyers, and some of them will never be lawyers. So, again, student journals are just that, journals written and/or edited by students, whether it be your local high school newspaper or your local Law Review. We do agree that student journals should not be relied upon when arguing before a Judge.

    3. Hi Thomas,

      No, I think it's fine to cite law review articles in motions and briefs. I was just saying that many articles aren't written to be cited. I like both types, but for different purposes.

      Two of my own law review articles (one peer reviewed, one not) have had an impact in Wisconsin's courts:

      Even SCOTUS still cites law review articles in its decisions. As for me, I judge an article based on its quality, rather than whether the author is a prof, student, practitioner, etc., or whether the article is in the Harvard L Rev or a "fourth tier" journal or a peer reviewed specialty journal. I guess in that way I'm my own "peer reviewer." If the argument is sound, I'll cite it.

      As for why I say it's easy to be a peer reviewer, that's because I've been asked to be one. At the time, I had no idea what it was. I just wondered why this particular journal kept emailing me over and over asking me to comment on an article. That's all peer review is. (I declined.)

      And thanks for your comment on the other post. It looks like we're in perfect sync on that topic!