Academic journal article Law & Society Review

The Path of the Law Review: How Interfield Ties Contribute to Institutional Emergence and Buffer against Change

Academic journal article Law & Society Review

The Path of the Law Review: How Interfield Ties Contribute to Institutional Emergence and Buffer against Change

Article excerpt

Law reviews are the primary outlet for legal scholars, and the law review system is unique to legal education. People in other fields are astonished when they learn about it; they can hardly believe their ears. What, students decide which articles are worthy to be published? No peer review? And the students chop the work of their professors to bits? Amazing. And then they check every single footnote against the original source? Completely loco. Can this really be the way it is?

Lawrence Friedman (1998: 661)

Sociological scholarship on organizations and institutions has developed rich accounts of institutional diffusion and change. But it is limited in its ability to explain institutional emergence and subsequent persistence in the face of change pressures. Neoinstitutional theory holds that diffusion and institutionalization of organizational forms and practices are driven primarily by organizations' desire for legitimacy. An institution should change when it is subjected to sustained, delegitimizing contestation and criticism, particularly if opponents have an alternative, highly institutionalized model on which to draw. How do we explain institutional persistence despite such change conditions?

The answer, I argue, requires developing more comprehensive historical accounts of institutional trajectories and expanding our theoretical toolkit by integrating insights from other scholarly traditions. My theoretical framework leverages neoinstitutional theory's understandings of legitimacy-based institutionalization, field theory's attention to interfield relationships, and path dependence's toolkit of self-reinforcing mechanisms. Fields structured around institutionalized practices are difficult to change, delegitimize, or dismantle. Yet, most contemporary institutional scholarship-and even the few field-based studies that explicitly account for interfield ties-tend to focus on cases of institutional change. Drawing from path-dependence scholarship, I argue that self-reinforcing mechanisms evident in the ties between fields can buffer against change.

I demonstrate my framework empirically through an historical analysis of a bedrock institution of American legal education and scholarship: the student-edited law review. I take a mixedmethods approach to explain why the law-review model has persisted as the dominant institution of scholarly legal journal publishing. First, through a qualitative historical analysis, I trace the origins, formation, and institutionalization of law reviews from the mid-nineteenth century through the mid-twentieth century. Second, through quantitative and qualitative analyses of contestation among law-review actors and the coevolution of related fields since the mid-twentieth century, I explain how the law review has resisted change.

The key to explaining the persistence of this seemingly paradoxical institution is to trace its ties to related fields-the law school, the university, legal practice, and legal periodicals more generally-throughout its historical development. As I show, selfreinforcing mechanisms evident in these interfield ties-legitimacy, complementarity, sequencing, the pursuit of field-structured self- interests, and institutional layering-enabled the law review's emergence, institutionalization, and, despite sustained criticisms and its anomalous position relative to the model followed by other disciplines, have buffered it against change.

Features of Student-Edited Law Reviews

As the primary publication outlets for the American legal academy, law reviews became notably similar to one another in structure and practice shortly after their emergence in the late nineteenth century and remain so today. Yet they differ greatly from scholarly journals in other disciplines.1 Most obviously, law students-not faculty experts or professional editors-manage the journals, review submissions, edit manuscripts, and select articles for publication. Other core features of law reviews include allowing simultaneous submission to multiple journals, an "expedited review" system permitting authors to signal a manuscript's worth by alerting editors of an acceptance elsewhere, lengthy articles often containing hundreds of detailed footnotes, single-blind review (student reviewers know authors' identities), and a sponsoring law school that houses, subsidizes, and publishes the journal. …

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