THE VOLOKH CONSPIRACY has been discussing the question of whether there could be a Bellesiles in the legal-scholarship world. I think the answer is “yes and no.”
No, I don’t think that someone who engaged in Bellesiles’ extensive pattern of fabrication and misquotation could get away with it in a typical law review. Law reviews check statements against footnotes to ensure that the sources cited in the footnotes actually say what the article claims they do. This isn’t perfect — nothing is — but my experience is that it tends more often to be excruciatingly exact than sloppy. Bellesiles’ fabricated probate records might not have been caught this way, as law review staffers wouldn’t visit the archives, and might not have asked him to produce his summaries of data. But his many other misrepresentations would have turned up, and that probably would have led to him being asked to provide more support or have his article rejected.
Peer review doesn’t do this. On the other hand, it’s stronger on the subject of methodology. Law students don’t generally know much about methodology, or statistics (though there’s usually one person on a law review staff who knows something about the subject). Peer reviewers do, and they pay a lot of attention. But they don’t generally check the data, so peer review is chiefly a protection against honest but inept work, not out-and-out fraud. A good academic fraud, after all, is meticulous on methodology, but then makes up the data to achieve the desired result.
When Bellesiles’ problems first came under discussion, a number of historians on a constitutional-law email list I subscribe to dismissed legal scholars’ critiques as meaningless because law journals aren’t peer-reviewed. That was something of a non sequitur, of course. Their faith in peer-review also turned out to be just plain wrong. Peer review didn’t stop Bellesiles. Law review cite-checking would have. That’s hardly dispositive as to the relative value of legal or historical scholarship, but it does suggest that the genial contempt sometimes expressed toward legal scholarship by historians is a bit hubristic.
UPDATE: Clayton Cramer has some further observations on peer review, and links to a photocopy of a letter from a peer-reviewed journal that’s worth reading.