Bainbridge has several reasons for not participating, but he devotes an extended amount of time to a discussion of self-interest, featuring an guest appearance from Adam Smith:
Why on earth would I ever want to review an article for them? To be sure, there are things one supposedly does for free for other law schools because they are for the good of the profession. Writing tenure letters springs to mind. Yet, while doing so is for the good of the profession, it can also be personally beneficial. If I write a tenure review letter for your tenure committee, the members of that committee will feel obliged to return the favor when I'm chairing our tenure committee and need outsider reviewers. Professors at other schools read my brilliant tenure review and conclude they should hire me instead of promoting the candidate. I take the job offer to the Dean and she gives me a raise. And so on. But what possible benefit do I get from giving a review to bunch of kids who may or may not end up in law teaching? I'm a rational economic actor. My time is valuable. There are opportunity costs entailed in responding to your request. "It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love, and never talk to them of our own necessities, but of their advantages." So make it economically rational for me to respond affirmatively.Actually, this made me think of one reason someone in Bainbridge's position might want to participate in peer review: to influence the window of prestigious legal scholarship in a direction more amenable to his scholarship (and more generally, ideological predilections).
It is a common complaint of conservatives in academia that one barrier to their success is the hammerlock the left-wing majority has over article selection -- supposedly elevating mediocre (but ideologically congenial) leftist scholarship while knocking out good conservative contributions. I don't know if Bainbridge feels this way about the areas he writes in (corporate law), but presumably even shorn of a partisan valence Bainbridge has a vested interest in facilitating a match between scholarship is thinks is actually good and that which deemed "good" via the signal of elite article placement. At the margins, this could help in quite directly (by making his own scholarship more closely resemble that which is considered to be cutting edge), and at the very least it offers a benefit to his ideological school (to the extent he cares about such things). When Bainbridge declines to review articles for top law journals, the reviewer they replace him with may be one with very different views on what makes for a good corporate law piece. The net effect will be to push the contours of well-regarded scholarship in his discipline away from Bainbridge's preferences.
Of course, this sort of analysis is another way of saying that "self-interest" -- defined broadly enough -- can include a whole host of "good for the profession" (or community, or society) values. But that seems to reflect a sociological observation that those most keen on quoting Adam Smith are often those most blind to that sort of "self-interest". If conservatives decline, on grounds of "self-interest", to partake in "selfless" acts of professional courtesy like providing peer reviews, and liberals -- more amenable to doing things for good of the community -- take their place, well, each may reap what they sow, and the corresponding ideological state of "elite" scholarship perhaps shouldn't surprise us.
The publishers of scholarly journals in other fields are undergoing a crisis that, I think, law journals have mostly avoided. A large part of that is due to the differences that you point out in your earlier post: that law journals are mostly student-reviewed; that articles ate submitted to multiple journals simultaneously; and that the length and copious footnotes of legal articles makes them broadly comprehensible to people without specialised knowledge.
ReplyDeleteOutside the legal field there are many journals, mostly not associated with particular universities. In fact journals multiply because articles rejected by one journal may find a home in another; and since journals are (mostly) commercial endeavours there's a great incentive for a publisher to keep producing more titles. I presume that people submitting articles to law journals don't need to pay for the privilege? That's not the case in other fields, whete an author may pay thousands of dollars to secure review, let alone publication. In fact, there are disreputable journals established under confusing-similar names specifically in order to attract submissions from inexperienced authors!
It would be a great pity if law journals were subject to the problems of other academic publications. If Bainbridge understood the crisis in non-legal scholarly publishing he might better appreciate the need to defend his field from the ravages of Adam Smith's invisible hand. That broader concern for the field distinguishes, to my mind, the professional from a skilled tradesman. Each might be very skilled in what they do, but professionals acknowledge a duty to rise above commercial competition and to advance the abstract interests of their field. That might not be something that a commercial lawyer pays more than lip service to, but Bainbridge's position demands something more.