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Tuesday, November 08, 2011

Should Law Reviews Publish Their Own Faculty? Should Junior Faculty Publish in Their Own Law Reviews

In this post I am interested in the two titular questions. The questions were prompted by a conversation with several Harvard Law Review editors on changes they could make to improve the law review, and the report by one of them that another prof had suggested adopting a rule to this effect, which I found interesting.

A couple of initial caveats/disclosure/prophylactics: I don't have a strong view on the questions I am asking or a dog in the fight, one of the reasons why I am posting on it to get feedback; I've never been the lucky recipient of a Harvard Law Review offer to publish so I am not making claims about what I have done or would do; I do not mean to disparage the quality of anyone who does publish in their own law review, most of what I am interested in are perceptions rather than actuality here.  Does where we publish reflect the quality of our pieces or even matter? Enough of us act as though it matters (by calling in expedites) that even if we think of placement as a very imperfect signal of quality, we behave as though it is a signal or at least worry that our peers do, making this a reasonable question on my view.

With those in mind, let's take up my two questions:

(1) Should law reviews adopt a rule that they won't publish their own faculty? Here I am imagining a kind of collective action as many law reviews undertook as to article length.

The argument for: Especially on small faculties, editors will feel pressure to take their faculty's pieces, irrespective of whether the faculty is actually putting that pressure on them. Even if selection was totally blind to the fact that this is the home institution, many on the outside will devalue the placement as an "inside job," and there is at least a spectre of partiality. Law review editors may feel less free to push back in their edits of professors on whom they depend for grades and recommendations than relative strangers.

The argument against: It can be a wonderful opportunity for students to get to know possible mentors on the faculty and perhaps there is more investment among law review editors. Still, as mentioned above this lack of arm's length relationship is not an unalloyed good.  Moreover, there may be psychic harm if your faculty routinely solicits an offer from the home school journal only to call in an expedite and pass over those students and their journal.

(2) A separate question: assume the rule remains the same and faculty are allowed to publish in their school's law reviews. Should they? In particular, should junior faculty for whom placements are a bit more scrutinized place their pieces in their own school law reviews? My own anecdotal sense -- but I really want to take the temperature of the blog readers on this since I don't have much data -- is that outside evaluators tend to engage in devaluation of articles placed in the home journal.  Now granted, if you are a faculty at Harvard or Yale, etc and the opportunity presents itself to place it in those very highly-regarded journals even with the devaluation it might be worthwhile. But what if you teach at a school with a less highly ranked journal?

Again, no dog in this fight, just curious what people think....

Posted by Glenn Cohen on November 8, 2011 at 11:21 PM in Law Review Review, Life of Law Schools, Teaching Law | Permalink

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Glenn,

This is essentially the rule here at Florida State. We don't submit articles to the home journal, and as I understand it, they are instructed not to take articles from faculty. The rationale is as you outlined above. In addition, my sense is that internally, the tenure committee and tenured faculty at FSU would also somewhat devalue placement in the home journal.

As for missed opportunities to develop a relationship with the law review staff, I've been reviewing student notes for about a third of them, so we are certainly getting to know one another, but I'm the one doing the pushing in the editing process.

Posted by: Jake Linford | Nov 9, 2011 6:06:47 AM

I don't have strong feelings about the first question. I think publishing home faculty has the benefits you identify for students and so if faculty don't mind doing it, I don't know that I see a problem from the students' point of view. But there is certainly a devaluation from the faculty's point of view, at least at my institution and in my mind. I don't have strong priors about Harvard LR, but my personal priors about Yale are that it will publish almost anything from its own faculty that is well written, regardless of the quality/novelty of ideas or argument, and therefore there is no signal of quality. I suspect, though, that my priors about Yale are an outlier with respect to the views of others and other top-10-ish law reviews. My guess is that at top-10 schools the devaluation in the eyes of others is probably worth it if the home institution's law review is the best offer by a wide margin.

Posted by: anonprof | Nov 9, 2011 6:46:40 AM

Glenn:

I think your argument against adopting rule #1 is so weak, and so thoroughly responded to in the argument on behalf of the rule's adoption, that it defeats itself.

This practice is perhaps the most absurd and destructive of law reviews' credibility. There are almost enough problems with the peer-review system, and enough advantages of using student editors (especially for cite-checking and editorial practices), that one can make an argument with a straight-face that relying on student-run law reviews is defensible. (I don't think it's a winning argument, but at least it can be a credible argument when performed comparatively and carefully.) Once authors, journals, and law schools disregard the obvious conflict-of-interest issues involved in having students choose to publish their own faculty's work, however, the argument can no longer really stand. The appearance of conflict is so strong that it undercuts the entire endeavor and confirms non-law faculties' worst suspicions about student-run editors -- even if the editors claim to engage in blind review.

I can think of two defensible reasons for a law review to publish its own faculty (and there may well be other, similarly narrow ones): 1. As an introduction to a symposium issue in which the faculty member helped organized the symposium; 2. When a law review publishes an issue that covers matters of interest to the local bar, and the faculty member is clearly a leading expert in one particular area and no similar expert is available.

Posted by: Mark Fenster | Nov 9, 2011 8:32:50 AM

Thanks Jake, AnonProf, and Mark. Let me ask the "Chicago question" -- if it is correct that law reviews accepting their own authors is a bad idea, why (with the exception of FSU) is a rule to this effect not adopted at most law reviews? It is possible there is a collective action problem, but even an individual school that adopts such a rule alone does not lose all that much. Is it about pissing off faculty at the school? I'd also love to hear from any dissenters who want to defend the status quo position of most law reviews on (1).

Posted by: I. Glenn Cohen | Nov 9, 2011 10:12:23 AM

I want to join the pile-on instigated by Fenster. I actually think that unless it's a symposium (and most of those should probably be killed too), there should be a prohibition against home-publication for virtually every school, and maybe all of them. (I recognize that if one's at HLS it's nearly impossible to resist the lure of the great HLR/HCRCL/HILJ/JOLT editing you get. And perhaps that's true of the YLS folks.)

But those reasons should be overwhelmed when there's a strong norm against publishing at home and that strong norm should be effectuated by guilt, shame, castigation, rotten tomatoes, etc.

One way to do this is to ensure that any citation studies simply exclude from consideration any home-published pieces. That should get the deans to see the costs of "insiderism" somewhat more clearly.

It's bad enough that so many opportunities are corrupted by insiderism. I have some friends who have taken advantage of these opportunities and some journals have in the past been quite bad about this (beloved UVA for one stands out in my mind, but I bet the data shows other bad offenders; Columbia stands out too in my recollection). So Glenn Cohen, you can lead the crusade to virtue from within. Join me and Linford in our FSU-abnegating ways; forswear any future HLR offers and lead us to victory!

:-)

Posted by: Dan Markel | Nov 9, 2011 10:32:04 AM

"As an introduction to a symposium issue in which the faculty member helped organized the symposium" - I'm not so sure it should be limited to introductions. I think it is reasonable that a law review would want a professor on the faculty to speak, and if so, then want the article associated with that talk in the symposium volume. And I don't know that there is anything wrong with that.

To me, the real question is how to designate the symposium piece on the CV. For a while I had a parenthetical note after the title. I think I've since removed it, but perhaps I should put it back given the vehemence of the comments here.

Posted by: Michael Risch | Nov 9, 2011 10:42:09 AM

This last fall Villanova, where I'm visiting, hosted a conference on the work of John Finnis. Though it wasn't originally planned to publish the proceedings in the Villanova Law Review, the law review editors asked to do so. The line-up of presenters was excellent, so this seems like a good thing in general to me. A fairly small number of Villanova faculty, including me, presented in one way or another, and will have pieces published. It's not officially a symposium, but still seems like an okay thing to me. My own piece, which is a comment on a longer paper, will be published there, and I don't have any qualms about that. I think it's a good piece, and worth publishing in this context, but it wouldn't have made proper sense apart from the rest of the papers, so I had no intention of trying to publish it elsewhere. But, as part of the collection of papers, I think it's a useful addition. This doesn't go against the main point others have made, I think, but seems like one more case where "home publishing" is at least not inherently suspect.

Posted by: Matt | Nov 9, 2011 11:31:37 AM

I'm an outsider, but I'm curious about an almost undetectable corollary I've heard of, which is professors forwarding on pieces to their home school law reviews from colleagues at other institutions. I understand that some journals will independently seek out and ask professors at their school to read submitted work and comment on it. But if the professor initiates the review and puts his stamp of approval on it, there could still be problems with journals feeling pressure to accept the piece. I have no idea how frequently this happens, so maybe others can weigh in. I can certainly imagine ways that it's less pernicious than the scenario in this post, but I wonder if the fact that it's undetectable weighs against it.

Posted by: lawnon | Nov 9, 2011 12:19:23 PM

Based on my own law review experience, I would like to see this norm adopted; however, there's an inportant caveat somewhat similar to what Matt says.

Image the USN&WR tier 2 University of Calisota School of Law, which hosts the Calisota Law Review. Some constituencies (alumni, the dean, the "local legal community," etc.) will perceive the Calisota Law Review have an obligation to publish articles on Calisota law. But it will likely happen that the leading scholars of Calisota law are on the faculty of the University of Calisota School of Law. (There are a few over at tier 4 McDuck School of Law).

If the Calisota Law Review adopts a policy against publishing articles written by members of the faculty of the University of Calisota School of Law, then in consequence (1) it will not be able to publish the best articles on Calisota law; and (2) the leading scholars of Calistoa law will have nowhere to publish. Then those constituences I mentioned above will be upset that the Calisota Law Review isn't really about Calisota law anymore, and why are we bothering with it if it is just going to be another general law review, and a lower-tier one at that--especially if it is just going to publish pieces by those jerks at McDuck!

The right answer might just be to tell the constituencies to take a hike and make the Calisota Law Review completely general in order to climb the W&L (and eventually USN&WR) rankings, etc. Calisota's larger law firms can just have their associates crank out alerts on new statues and appellate decisions. And those scholars of Calisota law really need to branch out. Again, I'd have been happy with that.

But these are consequences you should keep in mind.

Posted by: Sykes Five | Nov 9, 2011 12:43:48 PM

Lawnon raises a good question about the "forward" or walk-down, and it's an issue we've addressed here before (I think Lipshaw wrote about it not long ago).
At least in that situation, the faculty member making the recommendation has her own credibility with the law review to preserve, and there are some benefits to the law review in terms of good faith efforts to reduce search costs.

A little less alarming, I hope, is the role I've played in the past as an informal advisor to the FSU LR. If there are articles that I've read in draft that I've liked, I've not hesitated to flag them for consideration by the FSU law review editors (regardless of whether I was asked to by the pieces' authors). Maybe some might think that *any* faculty involvement in the selection of articles is prone to corruption, but others might call that "faculty-selected", much like the Stanford-Yale-Harvard Junior Forum is...
(and you'll notice that in the notice, it's not purported to be blind review, but maybe it is: http://legalscholarshipblog.com/2011/11/02/call-for-papers-stanford-yale-and-harvard-junior-faculty-forum-cambridge-ma/)

Anyway, one battle at a time--Glenn, it's been a few hours so far; have you already got your fellow colleagues to sign the pledge :-) And don't forget, it's not just juniors who should forbear from the home school publishing. The rationales for the norm sweep more broadly!

@Matt, don't worry: critiques of Finnis (whether appreciative or hostile) are always an exception to any rule or norm.

Posted by: Dan Markel | Nov 9, 2011 12:49:31 PM

@Michael: I always note (via parenthetical) when a paper is an invited or symposium piece. I agree that it's an important honest signal.

Anecdotal evidence indicates that profs sometimes submit to the home journal not to publish there, but to get an offer that allows them to expedite. What do we think of that practice?

Posted by: Derek Bambauer | Nov 9, 2011 1:17:20 PM

Derek-I think the situation you bring up is if anything more problematic and another good reason for a rule against publishing home-school authors. When a law review publishes someone from that school, outside readers can see that and make their own determination of what it means for the "quality signal." When an offer from that home school is used to climb up the expedite chain, that piece of information is hidden.
Dan-As a nice Canadian boy in origin (like you), I am not surprisingly much fonder of regulation here than self-regulation. That is, I think it would be better for law reviews to adopt this policy than to have authors have to decide whether to follow or defect on their own. This would also do more to get rid of the problem Derek alludes to.
We haven't heard much in favor of the current rule. Let me explicitly invite current law review editors to speak to their journal's policy on this, in case we are missing some insights they have that we don't. I may explicitly reach out to the President of HLR, and encourage others in the readership to share this post with their law review presidents/EIC and see if we can bring them into the conversation.

Posted by: I. Glenn Cohen | Nov 9, 2011 2:22:11 PM

@Derek:

Ugh.

Posted by: Mark Fenster | Nov 9, 2011 2:23:30 PM

In my first or second year in teaching, I heard a story about a professor who submitted an article to his home law review, and responded to the review's rejection of it by announcing that he would decline to write clerkship letters of recommendation for the law review's editors. That story persuaded me not to submit articles to my home journal. When I have explained that to law review editors, though, some of them have protested that (1) publishing works by their faculty will give them access to better articles than they believe they will get over the transom, and (2) if their own faculty don't publish in their law review, everyone else will believe it's because the faculty lack confidence in the review.

Posted by: Jessica Litman | Nov 9, 2011 2:57:45 PM

"I heard a story about a professor who submitted an article to his home law review, and responded to the review's rejection of it by announcing that he would decline to write clerkship letters of recommendation for the law review's editors."

This is a good example of the kind of behavior that should result in widespread public shaming.

Posted by: Andrew MacKie-Mason | Nov 9, 2011 3:07:21 PM

@Glenn: I agree there should be a solution by the law reviews to the collective action problem. But in the interim, a broad-based pledge by leaders at the top will signal their agreement with the underlying need for action...

Let's face it. The people who have the most to lose are the folks at the top who think they benefit from this home-school preference. If a broad group of respected scholars tell them: this is unacceptable maybe there'll be some more listening. (But on pain of what? Glenn should say: we won't cite or even read those pieces ;-) )

I should add, since I'm already getting moderately foamy about this, that the sooner the norm against home-school punishing takes stronger effect, we would be doing the students on law review a favor, at least in some contexts. I've heard from a number of former law review editors at fancy schools that they are worried about making decisions to reject authors at their school. Sometimes the dean or other faculty chastize students who make "incorrect" decisions, and they are subsequently browbeaten into accepting the pieces. Or the influence proves more "subtle" before the decision is made. The stronger the norm is against home publication, the more the students can credibly resist such encroachment and faculty won't even dare to make such audacious threats or inducements.

Posted by: Dan Markel | Nov 9, 2011 3:07:50 PM

Danny Markel wrote: "I'm already getting moderately foamy about ... the norm against home-school punishing."

Either this is just a typo (albeit a delicious and Freudian one), or something truly freaky is going on at FSU.

DM: Oops. Good typo catch: publishing. Don't worry, Ben and Lincoln are safe.

Posted by: DF | Nov 9, 2011 3:48:07 PM

I'm not as opposed as many others here. Several journals have told me that they give home-authors an automatic pass to the full-board stage as an inducement to faculty to develop ties with the journal. These ties, such as those Dan mentions (i.e., reading and passing on tips about good & available work), are usually welcome and valuable to the staff. (Though obviously brow-beating the staff to take your friend's bird-cage-liner of an essay isn't as welcome, and shame on you if you do that).

Despite this, I know that B.C. will publish our faculty only in a symposium issue, though this may be because our folks are already happy to help without any additional inducements.

Finally, Dan, Stanford/Yale's always been blind review in the past -- maybe the new Harvard people have changed things up?

Posted by: BDG | Nov 9, 2011 4:29:53 PM

This is sort of an interesting topic and I have a couple of different takes on it. I don't see why a law review should reject good articles by their faculty, does it make sense for a place like Harvard, Yale, or even lower, Georgetown, to exclude their own authors? I just don't see how, although I also don't think it should be an automatic acceptance. The problem comes when a journal turns down home faculty but that seems to me a relatively minor problem that can be dealt with. The other side of the coin is why should faculty publish in journals lower than their own school? Again, makes little sense, a well-known author can lend prestige to their own journal, rather than accepting an offer from a lower or similarly-ranked journal. On the untenured faculty, there should be some prohibition to the extent that faculty foolishly look to where the piece was published as part of the tenure inquiry, but that really is kind of foolish. I understand the jealousy and the "but it isn't fair" comments, but restricting where faculty publish will not improve the quality of student-edited journals.

Posted by: MS | Nov 9, 2011 4:50:09 PM

My institution's law review has a policy of not considering faculty pieces. Starting out, I was quite opposed to this policy, though I have come to think it a good idea. The reasons for having this kind of policy have been outlined above (with which I now agree), but I wanted to give voice to some of the criticisms, or in other words play Devil's Advocate:

1. The law review is ultimately subsidized by the law school in various ways and thus arguably bears some responsibility to further the law school's interest. To the extent that publishing home-school faculty enhances the school's reputation overall, that would seem to be an element of that responsibility.

2. Even without the faculty taking affirmative retaliatory measures, a policy of never considering faculty pieces will lead to the faculty having fewer incentives to be engaged with the law review. There is an inherent trade-off between autonomy and having sufficient faculty buy-in. One can say that the faculty should be engaged to the same degree anyway out of a sense of obligation, but good luck with that.

3. There is a "rich get richer" effect once we consider the pervasive effect of letterhead bias in the general law review selection process, which is the alternative to the home-school preference. Contrary to what many here seem to assume, I would guess that the faculty of Harvard/Yale/Stanford would not be particularly concerned if their law reviews adopted a no-home-author policy--because they can place their pieces in any other top ten law review with their letterhead. Rather, the people who would be most hurt by having such a policy universally implemented are faculty at middle-tier schools, whose letterhead has a much diminished effect outside of their home institution.

Posted by: TJ | Nov 9, 2011 5:23:10 PM

Blind review solves this problem (and a number of others) instantly, no? Yet, there seems to be no movement toward blind review. Indeed, there is widespread skepticism about the claims of the handful of law reviews that assert that they use some sort of blind review, perhaps because even these reviews often hedge about whether review is completely blind when pushed. On this score, Professor Cohen's post is illuminating. Although the Harvard Law Review claims to utilize some sort of "anonymous review process," at least according to its website, it seems clear that this is largely a fiction, or there would have been little reason for this issue to have been discussed by Harvard Law Review editors as described in Professor Cohen's post. (Note -- when I was an articles editor of the Harvard Law Review in years past, there was no pretense of anonymous review).

One wonders why the norm favoring blind review that is so deeply entrenched in other parts of the academy has had so little purchase in the legal academy. After all, if the academy really wanted to get rid of letterhead bias, that would not be hard to do. This seems to me to be a question even more interesting than the one posed by Professor Cohen.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Nov 10, 2011 12:14:19 AM

I've found this thread very educational-- I had never even heard of a journal having a policy of rejecting internal submissions, but apparently it is common. (When I was on the articles committee on the Yale Law Journal we published three (I think) internal submissions, and rejected many times that. Given how productive the Yale faculty is, I don't see how it could ever have been true that "Yale are that it will publish almost anything from its own faculty that is well written, regardless of the quality/novelty of ideas or argument.")

Anyway, if letterhead bias or undue influence on law review editors are real problems worth solving, so be it. But the anti-home-institution fit seems oddly over- and under- inclusive for those problems.

Posted by: William Baude | Nov 10, 2011 3:14:42 AM

Larry just to clarify (since I don't want to cast any aspersions on the Harvard Law Review), as I said in the post one of the HLR editors reported to me that this suggestion had been made by another HLS professor. During "transition," every year the HLR editors re-consider their policies and in this instance went to all the faculty with the question "what can we do better" and one of my colleagues raised the possibility of a no internal authors rule. I give the HLR editors huge credit for being willing to constantly try to be better as an institution, but I don't want to give the mistaken impression that this possible rule was something that emanated from them and was seriously discussed. I have no idea. All I know is that one of my colleagues suggested it, and I thought it was interesting enough to blog about.

Posted by: I. Glenn Cohen | Nov 10, 2011 8:14:56 AM

To address Will Baude's comment:

Let's assume a perfect submission and review process in which the faculty member submits completely anonymously a paper on a topic on which the editors have no idea she is writing. Assume too that there are neither stylistic nor citational hints as to the author's identity. Assume finally that the review process proceeds perfectly anonymously, and assume that the article which is accepted is indeed of the highest quality. I still think the appearance of a conflict is so great, and law reviews as a set of academic institutions are so anomalous and vulnerable to critique about the likelihood of non-objective evaluation, that it ought not to occur. Each time it does occur, the decision by a student-run journal to publish its own faculty affects the reputation of other academic institutions, from law reviews, to law faculties, to legal academia generally, in the eyes of those who (I think rightly) are skeptical that the assumed conditions could in fact occur. Although I think the reputational effects occur disproportionately with the top journals, it's true across the board (except in narrow circumstances like those I discussed above to which other commentators added).

Now, relax the assumptions even just a bit, as I think you really have to do. In a small academic community, it would be very difficult that a submission would be entirely anonymous to all of the editors, if only by subject matter, style, and citations. Editors certainly know, if only by those instances when they reject their own faculty's work (and why are they in that situation to begin with?), that a decision to accept a piece from a faculty member will have positive effects on their future dealings with that faculty member. Especially at elite institutions, faculty play an enormously powerful roles in the future careers of their students -- clerkships, academic postings, fellowships, jobs, etc. There is something inherently wrong about the practice, even in the most perfect (which is to say, non-existent) conditions.

The only defense of the system seems to be, "But it doesn't happen here! We're careful!" That's not an adequate defense for a system with so clear a conflict of interest.

Posted by: Mark Fenster | Nov 10, 2011 11:13:36 AM

Mark,

I didn't mean to say that the process is always careful and honest-- it may well not be. Rather, I am skeptical of the claims that 1) there is a lot of discounting, 2) there should be a lot of discounting, and 3) professors don't already have the incentive to account for whatever that discounting is. So I'm not sure whether this is a real problem or whether this is a good solution.

Let's start with the articles that do place in a home institution. For example, do people really think that Akhil Amar's Of Sovereignty and Federalism, The Bill of Rights as a Constitution, & The Bill of Rights and the Fourteenth Amendment (all Yale) are systematically weaker than Harvard, HLR, and Holistic Reasoning, The Document and the Doctrine, & Intratextualism (all Harvard)? Or that Judith Resnik's Categorical Federalism, Law's Migration, and Images of Justice are systematically weaker than Managerial Judges, Trial as Error, and Fairness in Numbers? Or that David Currie's 30 publications in the University of Chicago Law Review are weaker than his publications in Northwestern, Michigan?

I would be surprised if that were the case (but this thread is surprising me, so maybe I am wrong!). If that were the case, I would expect faculty to place their pieces with their home institutions only when they couldn't place it anywhere else comparable. But instead, and I know that many faculty at top schools just start by exclusively submitting to their home journal, and submitting it more broadly only if they're rejected, suggesting that their preferences are the opposite of what we'd expect from the discounting theory. (Incidentally, anybody who is concerned about the problems in article selection arising from the huge volume of several-hundred-simultaneous submissions should *praise* home-institution-exclusive-submission, since it takes a lot of articles out of the simultaneous submission crush.)

And what about the many articles that *don't* place in a home institution? As discussed above, most faculty at a top institution don't get an offer from their home institution's flagship law review. That suggests that law review editors are still being quite selective about the homegrown pieces they publish.

Others have already mentioned some of the downsides to such a rule, but I guess I'm just stuck on whether there's really a problem. But that's based in part on my assumption that top journals don't have such a rule, so the burden of proof lies with the reformers.

P.S. (In the interest of full disclosure I should note that my comments may be thought to be biased by self-interest, since I just placed an article in my home institution's journal and am quite happy about the fact. I didn't exert any influence, I swear!)

Posted by: William Baude | Nov 10, 2011 12:31:11 PM

Will:

Congrats on the placement! But I'm afraid we're talking a bit past each other, as I'll even grant you the assumption that the pieces accepted by a home journal are superior to anything else on the market that year, if such a thing could in fact be ascertained. Surely if the pieces were as groundbreaking on submission as they have been post-publication, then they would have been picked up by another top journal -- if we assume, that is, that the process has some degree of logic (and I do). I don't actually think there is much discounting that goes on, especially for tenured faculty, which I think is part of the problem that's instigating DM's bile eruption.

But the real reason why the they-still-publish-quality-pieces-from-their-own-faculty argument doesn't persuade me is the broader institutional and academic issue. To the extent that law comfortably remains in its historical position as an exceptional discipline which speaks to itself and doesn't care what others think of it (and is therefore marginalized as such), then it makes perfect sense to have a publication system that is run entirely by student editors whose process might change from year to year and is anything but transparent, and which allows its student editors to choose to publish submissions from their own faculty who evaluate the same students' work and play key gatekeeping roles in the same students' future careers. I would wish for something more from the discipline -- especially as it purports to engage in deep thoughts about fairness, institutional design, process, ethics, etc. No publication system is perfect, blind peer-review very much included. But this glaringly bad practice strikes me as low-hanging fruit for reform, and the fact that some top faculty members have published ground-breaking work in their home journals doesn't in the least bit change that, at least for me. Given the advantage that it gives them, the very institutions and individuals who would need to reform the practice -- the top law schools and their faculty -- are the ones who are least likely to change it.

One additional, related but somewhat distinct point. A great reason faculty submit internally first, even if they know that their odds aren't necessarily great, is that their odds are far greater than if they submitted as an anonymous outsider, where the odds of being accepted are significantly lower and the vast majority of authors receive a brief, generic email, rather than a somewhat awkward, chagrined message from an editor (perhaps with valuable comments) explaining why their piece wasn't accepted. If submissions should speak for themselves -- which seems like something of an academic standard, doesn't it? -- then all of them should be judged by the same process. (And I know that some journals, including YLJ, offer an exclusive submission process, but it's unclear from outside and unlikely that those pieces would be treated quite the same way as those submitted internally by YLS faculty.)

Again, no system is perfect, but this practice appears decidedly flawed and corrupt or at least corrupting, even if it occasionally or often results in just placements.

Posted by: Mark Fenster | Nov 10, 2011 1:53:00 PM

Will, I don't think the analysis is right. Let me draw an analogy to affirmative action. Would it satisfy you to hear a proponent of Gratz style explicit racial preferences say that the institutions remain "quite selective," that they reject the vast majority of minority applicants, and that some of the AA admittees would have got in anyway even without a preference? Those seem to be the basic arguments you are making in favor of the home-author preference. The simple answer is that those are not what anybody is talking about: the only sample that matters are the articles that would not have been chosen but for the preference.

I admit that I raise AA because I assume you are an opponent of it. But if I am wrong, many other similar examples can easily be raised.

Posted by: TJ | Nov 10, 2011 2:15:04 PM

TJ,

Constitutional issues aside, I guess my attitude toward AA, like my attitude toward internal placements, is somewhat Burkean. I don't think affirmative action is so obviously a bad idea that schools should be forced to abolish it, ESPCIALLY if its magnitude is uncertain and marginal. I consider the case unproven and the tie to go to the norms we have. (The fact that some journals apparently have a no-internal-placements norm is what I find fascinating, and what makes me wonder if I am missing something in the internal placements debate.)

Let's continue with the analogy for a moment. My question is whether there's any evidence that internal placements are weaker, on average, than non-internal placements in comparably-ranked law reviews. I'm dubious, and while I admit that I haven't amassed a systematic comparison (though I'm also tempted to do so now!), neither have the critics. If the empirical evidence of a college admissions practice were similar-- no systematic analysis had been done to determine whether the admitted candidates were weaker on average, and both sides simply promulgated conflicting anecdotes-- I would not be inclined to abandon or ban the practice on meritocratic grounds.

Posted by: William Baude | Nov 10, 2011 2:27:25 PM

Will, I should add that examples such as Akhil Amar and David Currie are also obviously besides the point. Those professors do not need, do not care about, and do not really receive, any signal created by a placement in a top law review. The reason they exclusively submit to home-school reviews is that it is a really, really irritating process to do the expedite game, and if prestige does not matter much, there is no reason to go through it. More persuasive is if you can show me junior faculty at a 10-20 ranked school who would take their home law review over a competing offer by HLR (after HLR gives the offer, to eliminate the hassle factor difference). I think I can confidently say that no such junior faculty member exists.

Posted by: TJ | Nov 10, 2011 2:33:24 PM

Will, it seems your Burkean preference entails placing an impossible burden of proof on the other side. As a logical matter, if you stipulate there is even one article that got placed in a home law review that would not have been placed similarly otherwise (and given the occasional anecdote about explicit threats, I think we can stipulate that), then the internally-placed pieces must be weaker "on average", since we expect everything else to wash out in the statistical balance (you might say that some home authors like Amar and Currie might simply home-place higher-than-average quality pieces out of laziness, but as above I don't think that should count).

If what you really mean is that you want some systematic analysis with quantifiable figures, then the obvious problem is that there is no objective measure of article quality. So it seems suspiciously like that no amount of evidence can possibly satisfy your standard.

Posted by: TJ | Nov 10, 2011 2:40:33 PM

TJ,

I don't know of anybody who would turn down an HLR offer for any other school-- home institutions entirely aside-- since it's universally considered to be the best, or at least tied for the best.

As for your second post-- I'm not sure that we can assume that home-institution-bias (if it indeed exists) is on average a negative distortion rather than a positive one, unless we assume that law review editors are on average unbiased, which I don't.

And to make clear that the burden of proof is surmountable, here's an example of a related reform I do support-- per se recusal for any articles editor who worked as an R.A. on a piece now being submitted, or has a relationship with the author such that the author is reasonably likely to write the editor a recommendation letter. I think it's a reasonable solution to the undue influence problem, and even law reviews that don't currently have such a policy should adopt one.

Posted by: William Baude | Nov 10, 2011 4:28:10 PM

Will, the fact that HLR is the best is why I used it as the example. I took your argument as saying that some faculty would place higher-quality pieces (i.e. pieces that they could place at a higher-ranked law review) with their home law review, and this somehow offsets the pernicious effect of faculty placing low-quality pieces. Your concession that everyone would take HLR over the home law review seems to contradict that theory. And that links to my second post -- why can't we assume it is on average a negative distortion, if we basically eliminated the possibility, per above HLR point, that it might be a positive distortion?

And I am not sure one can draw a principle from supporting a ban on clerkship recommender articles and a ban on home-institution-author articles. The former is also based on "anecdote," and is under- and over-inclusive (narrowing the pool would exclude some of the very best professors and their articles, which might have been selected anyway or perhaps are even better than all competition--the best professors tend to write the best articles and also have the most influence as recommenders). The only difference seems only one of degree, and the debate will there suffer the same lack of "systematic analysis" that you speak of.

Posted by: TJ | Nov 10, 2011 5:24:49 PM

TJ,

My hypothesis is that professors might prefer to publish with their home institutions for some of the reasons you and others have mentioned (elimination of hassle in submission process, ease of editing process, possibly building ongoing relationship with journal, the Calisota law problem), and that people don't "discount" home-institution publications enough to outweigh those benefits. If that's the current state of affairs, I'm not sure there's anything wrong with the status quo, where professors publish with their home institutions more often than randomly, but usually don't.

As for the "principled" distinctions between our proposed policies, I guess I don't think first principles are the right way to analyze minor reforms to complicated institutions whose power is sustained by social norms. A recusal rule seems to me to accomplish many of the benefits of a never-publish rule, to be more palatable (because it is less absolute) and therefore easier to implement, and to have fewer costs. We employed such a rule when I was on a law journal and I think it worked out well, and I'd recommend it to others who are troubled by faculty influence.

Yes, evaluating the two proposed solutions requires one to estimate the costs and benefits of each rule on the basis of a mass of anecdotes and received wisdom, then subjectively balance them on the basis of one's own asserted values. That's true of every thread on this blog about changing the law review selection and publication process, and my goal is to explain why I think what I think and try to learn more about why others think differently. If somebody wants to take the time to approach the problem more rigorously, though, I'm all for it.

Posted by: William Baude | Nov 10, 2011 7:17:03 PM

Will, I think we are reaching the point of diminishing returns, though your concession that the debate is necessarily a matter of anecdotes and subjective judgment is to me a rather striking change.

I think we can agree on some reasons for home publishing that are potentially good from a social standpoint (Calisota law), some benign (save hassle), and some clearly bad (pressure journal into accepting lower-quality piece). We will clearly have differences of opinion on where certain reasons fall on that spectrum, e.g. "building relationship to journal" might be just be spin for pressuring the journal to take sub-par pieces. But our more fundamental disagreement is on the general costs and benefits. The costs of a no-home-publishing rule I see as fairly minor: so some tenured faculty will have to engage in a competitive selection process again, just like all their junior colleagues who still care about such stuff; and the Calisota law problem which I think is very rare. The benefits I see as more substantial: the elimination of a lot of potential bias whether explicit or invidious. And as I mentioned before, the biggest beneficiaries of the bad kind of home-school preference are not big-names at top schools, who you have been using as examples and who could still place at comparable journals -- it is the upper-middle-tier junior faculty who have a substantially more difficult time placing outside of their own institution. And it is those people who I think you have largely overlooked.

Posted by: TJ | Nov 10, 2011 8:16:57 PM

TJ,

I was focusing on the top schools because many of the most critical commenters were, and those are the faculty and journals with which I'm the most familiar. I'm also more open to the argument that a no-home-faculty rule is a good idea for schools ranked someplace between Calisota and the top. (Is that another surprise?) I do take the Calisota law problem pretty seriously, though, maybe just because I'm a former Tenth Circuit resident, and an amateur state constitutional law scholar.

Posted by: William Baude | Nov 11, 2011 12:45:23 AM

Will, I think your earlier examples were cherry-picked. Without naming names, I can think of articles placed by top people in their own journal that were demonstrably weaker than their own best work and not generally in the range of quality characteristic of pieces chosen from outside. It is true, however, that they could probably find a home for even the weaker pieces in other top journals, given the prestige factor of those authors. Still, having the option of placing in their home journal may provide reason not to improve the piece as much as they should. Not that I take a huge position on this question, except to note that the incentives are different for journals below the top ten or fifteen; profs at schools in the middle range are probably generally encouraged not to even submit to their own journals.

Posted by: Paul Horwitz | Nov 11, 2011 9:04:08 AM

Perhaps the first sentence of my comment above was too harsh; I'm still making my way through my morning coffee. I mean I don't think those examples rule out the possibility of less-stellar articles being placed by a top law professor in his or her home journal.

Posted by: Paul Horwitz | Nov 11, 2011 9:05:04 AM

Paul,

Thanks. I can understand the reasons not to want to name names, but I think this may be a hard discussion to have without doing so. (But I will add that if you agree that those articles would have placed equally well outside of the home institution, then we may be on the same page. I'm not saying that all top faculty write good articles-- just that the biases in the selection process are so pervasive that home-institution-bias may not be a big deal.)

For what it's worth, when I start trying to read a bunch of somebody's work I often *start* with the articles they've published in their home institution. I'd never really thought about why I do that, and this discussion has been very helpful in reconsidering that heuristic.

Posted by: William Baude | Nov 11, 2011 10:37:00 AM

Will, I'll preface this by saying that I would hire you in an instant and I suspect you'll have zillions of great options when you're on the market.
But, since you're asking for naming names, I'll make this quasi-personal, and tell you that my untutored reaction to a fellow or a prawf at Stanford placing at SLR (and that includes you now) is: good for you, but I'm guessing the person didn't get a comparable offer (perhaps in the top 10, perhaps in the top 15), and I would worry that the associational affinity b/w you and the decisionmaker would have crept into the decision process even in ways that the author is not necessarily aware of. That's why this whole thing is so, um, creepy.

Others at fancy schools may not have these qualms-- a sociologist of knowledge might say it's b/c they and their friends are the ones who benefit from home-publishing--but, fwiw, I substantially discount the signal on the home-schooled piece. By contrast, I am somewhat more generous as a general matter (sorry Kate Litvak) to the signaling function performed by law reviews with respect to "non-cooked" pieces. Again, one shouldn't use these signals as complete proxies of anything...but I don't think the signals are of zero value either; otherwise we could forego the market for submissions and just randomly place things or put it all up on ssrn and rely on other imperfect proxies until we did our actual work of reading things and making our own imperfect judgments.

Posted by: Dan Markel | Nov 11, 2011 11:51:49 AM

Some responses to Paul and Dan's last comments:

1. It's not obvious why articles written for external journals (those outside one's home institution) would be of higher quality. First, this assumes that the review process in student-run journals selects for academic quality, and that's not at all obvious in many fields. Second, because the number of submissions is so high and since most journals don't read most of the articles submitted, authors have incentives to write on the assumption that it's highly unlikely that their work will be read, let alone read carefully. This leads to all kinds of pathologies, including the use of gimmicks, bloated introductions, needless literature reviews, endless repetition of ideas, less technical work in areas where students are resistant, etc.

2. If the advantage conferred by a home institution is an automatic read, some of the pathologies mentioned above are ameliorated, if only because a group of students will actually read through the entire paper, as opposed to making a decision on the basis of the abstract, CV, and maybe a skim of the first few pages (or, perhaps more charitably, on the basis of a single student editor's recommendation about the quality of the piece).

3. Publishing at one's home institution may also have beneficial affects on quality because the editing process is more manageable (perhaps because there is more trust?). In some cases, student-editors improve articles. But again there are predictable pathologies (which authors from other disciplines, who are used to publishing in peer review journals, often complain about quite loudly -- the most famous example probably being HLA Hart's treatment by the editors at Harvard).

In any event, I'm not sure Will's intuition about starting with articles from home institutions is mistaken. There might be some good reasons for why you might, without thinking about it, develop that habit.

A last thought: so what if student-run journals provide no proxy for quality? Imagine a world with no student-edited law reviews, only peer review journals, SSRN, and Google-scholar (or Lexis/Westlaw). Would you really not know what to read? What's good work, and what's not -- do you really trust law reviews to tell you that? How much would be lost? My sense is not much, at least not much from a signaling perspective. If we really care about signaling, then there should be much more peer review. To the extent there is corruption from home publication (about which there is some reason for skepticism given the number of internal submissions rejected at top journals), it's a minor problem compared to other pathologies in law review publication.

Posted by: js | Nov 11, 2011 2:48:04 PM

I am coming a bit late to the discussion, but let me put a bit of a different view out there. I was an Articles Editor at a top ten (at least) law review and I teach at a top 50 law school (at least). However, while the "ranking" of the law review where I went to school essentially matched the "ranking" of the law school, there is a wild disjunction between the "ranking" of the school where I teach and its law review. The law review simply doesn't have a similar prestige to the law school. It's not even in the same ballpark. And it won't publish articles by its faculty. It's my feeling that the law review and the school would benefit by having a better regarded law review. And, frankly, I think this goal could be helped by considering articles by its own faculty. Part of this judgment is based on my experience being an editor on a law review that would consider articles by its own faculty. I can say with confidence that at the end of our year, the EIC and the Articles Editors all felt that the best articles we received in our year were from our own faculty. And that was a function of culture--the faculty would not bring us things that weren't some of their best work because they had an interest in preserving the prestige of our school's law review. It's not that there aren't problems. We turned down a faculty piece and there were hard feelings by that prof even though the article ended up at another top five law review. But if you have such a culture among the faculty (and I know that it is not necessarily easy) so that the placement at home is only reserved for some of one's best work, then the law review and the school can benefit. Even more so if the law review's reputation lags that of the law school.

Posted by: anonprof | Nov 11, 2011 3:49:08 PM

this has been a great thread for a host of reasons and I've already said more than my fair share, but let me just reply briefly to JS.
The pathologies of home publication seem profound for the reasons the thread already explores. Still, as you note it's true that in the big picture these are all just "first world problems" and so the foamy rage in favor or against the norm definitely needs to be kept in perspective...it's not like we're talking about the constitutionality of the individual mandate or something :-)

All that said, law review signaling matters a lot for schools such as mine when doing appcomm hiring. I won't speak for other folks than me but if I saw someone with a series of top 30 placements from folks at tier 3 or 4 schools, then that indicates (crudely) that someone knows roughly what they are doing in writing about important topics and taking on established scholars. It's clearly not a guarantee, but it is very helpful if you're trying to run a moneylaw hiring game to some extent, not to mention to improve your school. So, even if I knew who to read in my field based on informal networks or looking at pieces on SSRN or Google Scholar, I would have a hard time figuring out which new young turks are nipping at my heels or who I should encourage to join my faculty. I suspect this is true for any school that has impatience for success.

As to anonprof: if you reserve your best work for your own home school at a time that there's not consensus in the academy about the benefit of doing so, it seems you'd be engaging in self-defeating behavior.

P.S. What explains the delay in getting Leiter to link to and weigh in on this? This both involves his natural metier and obviously constitutes the most consequential thread in blogging history! :-)

Posted by: Dan Markel | Nov 11, 2011 4:02:24 PM

Quick response to js: The fact that an internal submission process is less subject to the pathologies of the insane mass, external submission process is a quite separate concern, suggesting in fact that getting rid of internal submission should merely be the thin edge of a series of reforms to make the process more rational. Why can't the journals, using the awesome power of ExpressO (which has otherwise contributed to the submission deluge), try to come up with policies which enable everyone to enjoy the potential of a more deliberative reading of their work (e.g., limiting the number of submissions)?

Try explaining the current law review submission and review process to someone in any other academic field. No doubt that person will have horror stories to tell of the peer review system and of university press book publishers, but if they have not heard the various features of our process before, they will begin to look at you and the strange corner of academia you habit in a wholly new, quite unflattering light. I think internal submission is one of the system's worst features, but as you note, it's by no means the only bad one. The fact that there are other flaws doesn't really make this one any better.

Posted by: Mark Fenster | Nov 11, 2011 9:38:50 PM

Of course people should not be publishing in their own review; it is unfair as there is a bias because the papers are not blind refereed, nor are they accepted on objective merit. But unless the top 50 student edited reviews convert into peer review journals that problem will not be solved; because a student editor at the Harvard Law Review is likely to accept a paper from someone at Yale, and vice versa, so the people in the elite universities will still have the benefit of brand name which allows them to publish rubbish that often would not cut the muster if refereed by two professors for academic quality, which can only be done blindly, that is without any knowledge of who the author is. The student editors could then come in and do the notes etc as they do now. It is a serious issue, because the top 50 journals are major forums for presenting research and they should be available to all scholars worldwide to publish in on objective merit. I have seem many sloppy papers in the HLR and YLJ, even though these journals contain many top papers too. Couple with this, allowing space to be used up by JD students in the journals that have the highest impact is absurd; it would be better to leave the space for the top professors to publish their top work that comes with intellectual maturity. Therefore, students should not be allowed to publish in the top 50 journals, and these top 50 should be blind refereed by professors, as they are national forums where the best of the best work should be presented.

Posted by: Gerald Rubenstein | Mar 15, 2012 1:15:10 PM

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