Students are prohibited from helping professors grade exams because it's agreed that they're not qualified to evaluate other students' work.

But in their role as law review editors, these same students are considered plenty well-qualified to evaluate legal scholarship produced by these same professors.

So consider this: tenure offers for law professors depend on published scholarship. Published scholarship is controlled by students. What does that suggest about published scholarship? What does that suggest about who gets tenure?

There are perennial debates about whether student-run law reviews are a good idea. Law professors seem to end up supporting them, but DUH – getting tenure would be hella difficult if you actually had to pass the scrutiny of peers rather than students.

Am I being stupid? You tell me. What if second-year firm associates graded the bar exam? What if undergrad art students evaluated submissions for the Whitney Biennial? What if admissions decisions were made by current students?

Answer: we wouldn't take the results seriously. When a procedure requires judgment & discretion, our confidence in the outcome depends on our confidence in the abilities of the person making the decision.

Consider the market incentives this system creates. A non-tenured professor X is shopping her article to law reviews. Did she have to write the greatest, best-researched article ever? No. It just has to pass scrutiny of editorial boards whose members have 2 years of experience with the law.

Are they familiar with her field or the topic? Maybe a little. Are they familiar with prior scholarship in the area? Probably not. So how much effort is Prof X going to exert if she wants tenure?

I'll let you ponder that one. Here's another observation: professors who have written casebooks, hornbooks, etc. are reliably smarter than those who haven't.

I think the reason for this comes back to market incentives. Unlike a law review article, a casebook has to pass scrutiny with a range of economic stakeholders: the publisher who invests in it, the professors who require their classes to buy it, etc. A casebook is, in effect, peer-reviewed by the free market.

15 Jan 06