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Tuesday, July 13, 2010

Anonymity of Notes in the Harvard Law Review

6a00e54fd2d5af883400e55206f8788834-800wi As is the case with many student-edited law journals, members of the Harvard Law Review may write articles – called "notes" – for publication. But unlike most other student-edited law journals, the Harvard Law Review has a peculiar policy of publishing these articles anonymously. 

Does anyone want to defend this practice as anything other than just plain dopey? 

It's not as if the authors are not allowed to claim authorship. They pretty much all do – on their résumés, and sometimes on SSRN. The Harvard Law Review's anonymous-in-form publication practice seems to do nothing other than frustrate readers who would like to know whose work they are reading.

Posted by Eric E. Johnson on July 13, 2010 at 04:16 PM | Permalink

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Way back in the golden olden days, when you had to walk uphill in the snow with your IBM cards to use the mainframe computer at the university's computer center and your television had rabbit ears, law reviews all published student notes and comments anonymously. The idea was that the notes were written with a lot of editorial assistance by the law review staff so they were more the corporate product of the review rather than any one person. I think also there was a sense that student written material was to be cited anonymously so that it did not receive too much weight as authority. At some point, law reviews started to add the names of the student authors. Why the Harvard Law Review did not change (or why any others remaining did not change) is not known to me. Maybe Fox News could investigate and then blame it on Obama's leadership of the Harvard Law Review years ago? :)

Posted by: David Levine | Jul 13, 2010 4:43:00 PM

If I recall correctly, when I was on the Review the policy was explained as a recognition that every student-written piece goes through a rigorous editing process in which no less than 14 editors serially scour your manuscript and test your ideas to get both into a state worthy of the label "Harv. L. Rev.," making each note more of a team effort than a work of individual authorship. The HLR website offers a similar explanation: "All student writing is unsigned. This policy reflects the fact that many members of the Review, besides the author, make a contribution to each published piece."

Of course, this explanation doesn't get one very far, since outside pieces accepted for publication go through the same editing process and are still published under their authors' names. And for notes (as opposed to student writing that the Review has an interest in seeing published, such as the Supreme Court case summaries or the Developments in the Law issue), if a student author didn't see the project through, nobody else was going to write it for them. Like so many idiosyncrasies of aged institutions, I suspect HLR's insistence on anonymity rests mainly on tradition, though this particular tradition is younger than the Review itself.

Frankly, now that I teach IP I wonder less about the formal practice of anonymity than about the copyright implications of the stated rationale for it. I don't recall signing any kind of assignment, license, or work-for-hire agreement when my note was published (though I may have done so and forgotten about it). A cynic might argue that copyright ownership is the real interest motivating the policy, though I don't see why that interest couldn't be served more effectively by formal rather than tacit agreement between the Review and its editors.

Posted by: Jeremy Sheff | Jul 13, 2010 5:14:00 PM

It's not as if the authors are not allowed to claim authorship.

Well, yes and no. We can claim authorship on resumes, true, but if you were to cite a student note you have to do it anonymously, and that cuts back against the main form of authorial recognition that scholars have.

I think Jeremy and David have the historical explanation right. I'd add only that notes used to be much more modest in scope; they were basically case summaries with a little bit of gloss, but so pro forma that they didn't reflect enough authorship to merit having names associated with them. Now that notes are, for better or worse, mini-articles, that explanation makes much less sense.

I wouldn't call the policy "dopey," though. It is, like many rules in law reviews and elsewhere, just an artifact of different times that hasn't managed to adapt, probably more because of inertia than anything else.

Posted by: Dave | Jul 13, 2010 5:37:27 PM

Harry Chernoff and I tried to change this policy in 1995 -- we lost. Tradition was the main reason -- no one wanted to arrogate the responsibility for breaking from it.

Two additional thoughts on the policy:

- It does convey an insider advantage, as those in the know can say that "this was Frank Michelman's note," etc.

- It prevents future politicians, judges, and academics from having the work counted as their own, at least publicly. This has advantages and disadvantages. Of course, like Obama's HLR comment, this stuff can be sussed out more easily in the age of the Internet.

Posted by: Matt Bodie | Jul 13, 2010 7:05:39 PM

A few of us tried to change it in 1998 and ran up against the same tradition arguments...

Posted by: Peter | Jul 13, 2010 7:55:21 PM

It's also interesting to note that decades ago, the main articles in the Harvard Law Review were signed only at the end: You had to flip to the back of the article to see who wrote it. If that's the standard for main articles, it makes more sense that the student notes would be unsigned: The norm was to de-emphasize authorship.

I agree, though, that the tradition makes no sense today. In Eric's lingo, it's dopey. Today we want to know who the author is; we generally understand that texts have authors, and the authors are making their own arguments. I suppose that is why the HLR is the only journal in the country that does it that way.

Posted by: Orin Kerr | Jul 13, 2010 8:03:20 PM

Along the lines of Orin's comment, I seem to recall that either Harvard or Yale, back in the day, used to list the authors of its comments somewhere in the journal. I tend to agree that the anonymous nature of the notes now serves a kind of inside-baseball purpose (quick: who wrote "'Round and 'Round the Bramble Bush"?), and would prefer that the authorship be noted. Not listing the President or other officers by name, I might add, seems to accomplish the same inside-baseball end, intentionally or not.

Posted by: Paul Horwitz | Jul 13, 2010 10:35:16 PM

I recall the Chernoff/Bodie insurrection in '95. I remember feeling vaguely sentimental about upholding the tradition. I'm guessing that Matt is right that now no one wants to be responsible for breaking the tradition, driving the last stake into the heart of authorship as a collective exercise of humility and jumping on the bandwagon of the inalienable individual right to be recognized. I think I bought into that rationale at the time, not knowing that one day I would wish I could get credit for citations to my note.

Posted by: rob vischer | Jul 13, 2010 11:07:47 PM

I believe that one copy of the review each year, kept in the President's office, has the name of every note author penciled in. Therefore, if you ever need to really know who wrote something (e.g., for purposes of a confirmation hearing), you could call and see if the current President will tell you.

Posted by: I. Glenn Cohen | Jul 14, 2010 12:58:58 AM

Rob,

As someone who went to HLS around the same time you did, but did not serve on the Law Review, I'm a bit skeptical that the Law Review's tradition was rooted in "a collective exercise of humility." My recollection is that "humility" and "Law Review" did not overlap particularly often. :-)

Posted by: Orin Kerr | Jul 14, 2010 8:43:41 AM

I always try to take with a grain of salt the post hoc rationalist justifications for a social norm or practice, as though the norm or practice were actually begun with a process of reasoned analysis. I'm particularly suspicious when the rationalization relates to academic customs. Regalia, for example, was once functional - you could keep warm in it, hide your lunch, and most importantly your spirits). Many of the inexplicable aspects of the NCAA's or the Olympic's regulation of amateur athletics only make sense if you understand their genesis not as rules but as social custom in a particular time and place (the same one that created the notion of "gentlemen's Cs".)

I didn't go to Harvard, but a far more "nouveau" institution, one founded by a mere robber baron striver after the Victorian era had passed. From a different perspective, the "collective exercise of humility" may have been instead an artifact of the Victorian "code" about striving and professionalism. I've just finished David McCullough's biography/social history of the young Theodore Roosevelt, his family, and their era. The chapter on Roosevelt's time at Harvard may be worth the price of admission. Here's a quote from a Roosevelt contemporary in the Class of 1880, and think about whether it, and not some more noble justification, is the source of both the custom and its durability at Harvard: If you asked me to define in one word the 'temper' of the Harvard I knew, I should say it was patrician, strange as that word may sound to American ears. . . .

This code, unwritten yet all pervading and all powerful, is difficult to define. Over and above the copybook virtues, it insisted upon a composure of manner, a self-suppression and a sense of noblesse oblige that were in happy contrast with the blatant self-assertions, the unbridled enthusiasms and misconceived doctrines of equality that were characteristic of the country in general. It gave its approval to those who understood that modesty was compatible with manliness, who knew how to combine self-respect with respect for authority and for the opinions of others, and who were firmly convinced that it was truer sport to lose the game by playing fair than to win it by trickery.

I think I am not exaggerating this influence in the college life. . . .

Plus ça change, plus c'est la même chose!

Posted by: Jeff Lipshaw | Jul 14, 2010 9:24:20 AM

The policy is one that could only be loved by French philosophers who spoke of the "death of the author." But they're all dead now. . . .

Posted by: Daniel J. Solove | Jul 15, 2010 1:31:13 AM

You're certainly right, Orin, but nothing fills the heart with pride more than the knowledge that, by your sheer will, self-sacrifice, and unique insight into the greater good, you are facilitating a legacy rooted in the "collective exercise of humility."

Posted by: rob vischer | Jul 15, 2010 11:51:42 AM

Ah, the memories. It's getting a little misty over here as I think back to our work for the collective good. Those were the days . . . . http://www.youtube.com/watch?v=znrjbo9QRLk

Posted by: Matt Bodie | Jul 15, 2010 1:56:38 PM

One of the many HLR rules and traditions that struck me as silly . . . although there may be some truth to the notion that each HLR piece gets so heavily worked over that most of them end up sounding like the same author wrote them (i.e., someone with a dull-as-dirt personality and whose favorite style is bureaucratese).

Posted by: Stuart Buck | Jul 15, 2010 8:39:00 PM

When I was at Columbia, the law review had an equally silly (but ultimately less relevant) rule. Notes were attributed in the book (and on Westlaw ets); however they were unattributed on the book's front cover. This was apparently the concession to notes traditionalists, while student authors did get recognition in the inside of the book where it mattered.

p.s. The managing editors accidentally misprinted one cover in 2001 with the student's name. I would tell you all which note it was, but I don't want to give up my valuable inside-baseball information.

Posted by: Kaimi | Jul 20, 2010 3:37:35 PM

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