Judge Jones hypocritical about peer review
ADDITION TO POST AT BOTTOM
Judge John E. "Jackass" Jones III's Kitzmiller v. Dover opinion, like Darwinists in general, makes a fetish out of peer review. The opinion said (page 89),
. . . . we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community.
The terms "peer review," "peer-reviewed," and "peer-reviewing" all together appear 23 times in the opinion!
Well, I have just discovered a dirty little secret about American law journals (often called law "reviews") -- a high proportion are not "peer-reviewed"! To make matters worse, many of the law journals without peer review are edited by law students! I am not saying that the editing by students is necessarily bad per se (I think that law students are capable of being good editors of peer-reviewed law journals), but in combination with the lack of peer review, student editing is particularly bad! How can a scholarly journal not have peer (or expert) review?
Richard A. Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School, says,
IN ACADEMIC LAW, AS IN MOST ACADEMIC FIELDS, the principal vehicle for the publication of scholarly work is the scholarly journal. But in other academic fields, except law, the most prestigious journals are edited by seasoned specialists, usually professors, who have had years of experience both as editors and as scholars in the field covered by the journal. Not only that, but in deciding what to publish, the scholar-editors usually are strongly influenced by the advice they receive from other professors, to whom they refer the submitted articles for peer review . . . .
The system of scholarly publication in law is starkly different. With a few exceptions, law reviews are edited by law students rather than by professors or other professionals. The law reviews are numerous, are published bimonthly or at more frequent intervals, are edited without peer review, and are seemingly unconstrained in length . . . . (emphasis added)
This system -- so strange, even incomprehensible, to scholars in other fields -- first emerged in the latter part of the 19th century, when legal scholarship was primarily a professional rather than an academic product. Its primary aim was to serve judges and practicing lawyers, rather than other professors, by offering careful doctrinal analysis, noting, for example, divergent lines of authority and trying to reconcile them.
Ironically, law students, who are allowed to edit law journals without supervision, are not even considered fully qualified to write law journal articles themselves -- their law journal articles are called "notes." Something else I have noticed is that a high proportion of American law journals are published by individual law schools whereas scholarly journals in other fields are typically published by scholarly societies -- it is apparent that the student-editing of law journals helps to account for this difference.
As I said, to me the big problem is not the student editing but the lack of peer review. Often even faculty members are not well-qualified to review articles outside their very narrow areas of specialization. Often the best potential reviewers are outside the law school that publishes the journal and sometimes even outside the legal profession altogether. I am not a legal professional, but on this blog I have specialized in "monkey trials" -- e.g., Kitzmiller v. Dover, Selman v. Cobb County -- and have read dozens of articles and court opinions about them and written dozens of articles about them (see post label list in the sidebar), and so I understand how long it takes to become familiar with a very narrow area of the law. A psychology professor of mine once observed, "you can't be a genius if you don't know anything" (he was explaining why educated people tend to do better than uneducated people on intelligence tests) -- the principle applies to individual subjects as well as knowledge in general. No, Voice in the Urbanness, I am not immodestly saying that I am a genius about monkey trials just because I have read and written so much about them -- in fact, I abjectly concede that I got from others what are IMO some of my best ideas about monkey trials, e.g., (1) the idea of nonjusticiability of the evolution controversy and (2) the "political insider/outsider" principle of the endorsement test for establishment clause cases. The most important thing in legal research is to come up with the right keywords or key phrases -- then a layperson can do the research.
The law journals published by law schools are not just educational exercises for the students -- the Harvard Law Review alone was cited 4410 times (!) by federal courts alone in the decade 1970-79 alone (though the frequency of law journal citation by the courts has declined sharply). The courts' acceptance of law journal articles that have not been peer-reviewed shows that the law profession has very low standards. Another sign of the profession's low standards is the practice and acceptance of arbitrary censorship of visitors' comments on law blogs. Law X.0, a law blog published by the University of Cincinnati, a public university, won't even consider any of my comments for posting.
There is evidence that this general lack of peer review of law journals is changing. Here is an article about peer-reviewed law journals. The Harvard Law Review now requires faculty review of submitted articles, and considering Harvard's great influence, other law journals may follow suit--
. . . unlike many journals, we require faculty reviews and a vote of our entire staff before we can accept a piece.
Also, the website of the Berkeley Journal of Criminal Law offers peer review and implies that peer review of law journals is unusual:
BJCL is one of the first legal journals to have instituted a Faculty Advisory Committee, which reviews articles we accept for publication. If you publish with our journal, you will have the benefit of peer review of your scholarship by leading criminal law faculty at Boalt Hall.
However, IMO in-house peer review by the faculty of the law school that publishes the law journal is not enough, because -- as I said -- sometimes the best potential reviewers may be outside that law school or even outside the law profession altogether. Also, the term "expert review" is better than "peer review" because sometimes the best reviewers might not be "peers." The authors of the classic book on the mathematical analysis of heat conduction in solids are not engineers or scientists but are mathematicians, H.S. Carslaw and J.C. Jaeger (they didn't even know the difference between radiation and convection).
Also, peer review is not just for the purpose of screening articles for publication but is also for the purpose of improving articles.
Anyway, the hypocrisy of Judge "Jackass" Jones, who condemned Intelligent Design for allegedly not being published in peer-reviewed journals while he comes from a profession where a high proportion of journals -- including journals that are most frequently cited in court opinions -- are not peer-reviewed, is glaringly apparent ("jackass" is what Dover defendant Bill Buckingham called him in on the PBS NOVA TV program about the case). Also, the Dover opinion itself was not "peer-reviewed" because it was not appealed. Indeed, IMO Judge Jones showed lack of restraint in writing the Dover opinion because he knew the decision was not likely to be appealed.
Judge Jones once said that peer review
is needed to show that something's true.
But that's OK,
he didn't say,
his Dover ruling was peer-reviewed too.
John Jones was a federal judge,
he had a mind that was a kludge.
He was that kind,
when he made up his mind,
the facts couldn't cause him to budge.
The idea of peer (or expert) review actually makes more sense in law than in technical fields. For one thing, the law lends itself to peer review to a greater degree than technical fields. In the field of law, everything is out in the open for everyone to see and references are easily checked to see that quotation or paraphrasing is accurate and that there is no quote-mining, but a reviewer of an article in a technical field may find it difficult or impossible to reproduce experimental results, verify mathematical derivations, check computer coding and computer output, etc.. Hence, peer review in technical fields is often an exercise in futility. Also, because of the principle of stare decisis (i.e., stand by bad decisions) in law, the consequences of wrong or bad ideas may be longer lasting in law than in technical fields. There is no principle of stare decisis in technical fields -- wrong or bad ideas in technical fields are readily discarded. (I have also added these arguments to the comment thread).
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