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Wednesday, February 26, 2014

Should A Colleague Review a Colleague's Book (or a Journal Publish That Review)?

I appreciate that asking questions (especially in the titles of blog posts) generally is taken as signaling that the author thinks he knows the answer to the question perfectly well. In this case, to be quite clear, I'm actually asking a question, not making an accusation.

So: Should a professor publicly review a book by a departmental or, in the case of law schools, faculty colleague? Or is the potential or perceived conflict of interest substantial enough to make this a bad academic practice? Of course, I ask for a reason. The latest issue of the Texas Law Review, which I am glad still publishes book reviews at all, features a review that, unless I have my facts wrong, involves one colleague reviewing another's book. The review is quite laudatory; other reviews have been as well, so doubtless the plaudits are deserved. But I admit that seeing one member of a law school reviewing the work of another, especially in a prominent venue, did give me pause.

It's not clear to me that there are any well-known rules about this, at least in the legal academy. I can think offhand of other examples of this conduct, certainly; a few years ago, for instance, two little-known Yale Law School professors engaged in a dialogue about each other's books in the Yale Law Journal. I would admittedly consider the ethical norms and practices of other academic departments a better guide than the practices of law schools, let alone law reviews themselves--although I was surprised that the Texas Law Review didn't simply seek a review by a non-colleague. But I don't know what those norms are, beyond a quick glance at this interesting but non-authoritative piece. Perhaps some of our readers, especially those in the academy but outside law schools, can offer some guidance on what best practices elsewhere in the university are with respect to such matters.    

 

 

Posted by Paul Horwitz on February 26, 2014 at 04:20 PM in Paul Horwitz | Permalink

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Paul, I actually just read one written by Kent Greenawalt reviewing Philip Hamburger's Separation of Church and State published in the California Law Review. Presumably, the main reason for soliciting reviews from a particular person is that person is considered knowledgeable in the subject, whether that person is a colleague or not. In History departments, colleagues don't usually review each other's book because there is (usually) only one person who specializes in a subject area in a single department so they end up getting another person from another university. But since people working in a certain field almost knows everyone in that field, I wonder how big a difference there is in asking a colleague from the same department or a colleague that one happens to know very well from conferences or other professional gatherings.

Posted by: Anna Su | Feb 27, 2014 10:15:40 AM

Book reviews, other than those that just summarize, are only credible if objective and reviewing the book of a friend or colleague seems to lack that credibility. The same goes, by the way, for tenure letters -- people really should not write them for friends or people they have established relationships with. If the author's identity and connection to the person being reviewed raises questions about the objectivity of the analysis, the point of the review has kind of been lost.

Posted by: MLS | Feb 27, 2014 10:24:27 AM

Paul's question makes me think of a related question: should a colleague review another colleague's article, for purposes of reappointment, promotion and tenure? It seems to me that some of the issues are similar. We worry about the objectivity of the review, and so we typically use outside reviewers, at least for tenure.

Posted by: Bridget Crawford | Feb 27, 2014 3:58:41 PM

Despite my affection personally for both Song and Angela, and not having read either the book or the review, I share Paul's initial hesitations as a general matter. I wonder if the best way to police the issue is the obvious disclosure mechanism and the use of good judgment. Not too many people will want to squander their reputational capital and look like a shill for a colleague. After all, it's a bit like the disdain some of us have for publishing in one's home journal (outside a symposium). So, here's one way to possibly deal with it: perhaps positive reviews by colleagues should be discounted (as reflections of possibly corrupted judgment) though not ignored entirely; on the flip side, negative reviews should be especially welcomed precisely because they are the scholarly equivalent of statements against personal/institutional interest. For that to occur, of course, there would have to be an assurance that there's no puerile vendettas between the parties being worked out in the journal pages. And maybe because that's not so easy to ensure, it would be worthwhile to have a soft presumption against any review by a colleague.

Here's one anecdote, and I admit I'm not sure how it cuts in light of what I wrote above.
In 2007, I ended up writing something for Pennumbra (and a later iteration for the Ohio State J. of Crim Law) that was a review/critique of a piece by Wayne Logan, who would later become my colleague at FSU, and Wayne wrote a reply when he was my colleague. The exchange was very much on the merits and spirited, much like Solove-Kerr's exchanges, among others. It would seem odd if the concern of bias at stake here would call for Wayne to have been denied a right of reply merely because he became my colleague--wouldn't it?

Posted by: Dan Markel | Feb 27, 2014 11:42:23 PM

I have always operated under the supposition that what passes for an academic expression of friendship is a critique of one's friend's position. Every Fetschrift I've ever read essentially begins: I love Professor X as a sibling, and all my work is based on X's insights, but saying that, X's work contains a serious problem that X has not resolved, and so we should be deeply suspicious of it. Assuming the Fetschrift is the ultimate academic expression of affection, then critique is precisely the way we express affection for each other. After all, we often stack panels with friends and colleagues whose work we admire, but these panels would be rather boring if we just complimented each other on a job well done. On the contrary, we usually bash away at each other.

I have not read the review, but operating under the principle of charity, I would imagine that an academic scholar would engage in a robust critique of a colleague or friend's work, particularly if published, in part to offset perceptions of bias, and in part because, as I mentioned, friendship in academic terms is expressed through the criticism of the other's position. I can imagine that other agendas operate when writing promotion and tenure review letters: perhaps secrecy has the opposite of its intended effect.

Intriguingly, given the subject-matter of her scholarship, I would imagine if anyone is aware of the potential for implicit bias in reviewing a colleague's work, it's Song Richardson. But, again, I haven't read the review.

Posted by: Eric Miller | Feb 28, 2014 3:35:09 AM

Thanks for the comments. I wanted to say again that I do not know the professors or editors involved and make no negative assumptions about any of them, although obviously I had some questions and concerns about these choices. Indeed, one of my reasons for writing was that it wasn't clear to me that there is a fixed and well-known norm covering this conduct. Certainly not in the legal academy; I'm not sure I've heard a clear answer about other sectors of the university. *If* there are reasons to wonder whether a colleague should publish a review of a colleague's book, and in the absence of a well-known norm or rule, it makes sense for us to ask and think about it, and we certainly can do so without implying any bad faith on anyone's part. Perhaps all this is unnecessary; all the comments seem respectful and serious without accusations or counter-accusations. But I wanted to be clear.

It seems doubly important to me to think about it, and I think a couple of the comments touch on this point in different ways, because our publication gatekeepers are students, not fellow academics. Good or bad, they're mostly inexperienced and deal with major problems of discontinuous institutional memory. So the primary burden should be on the professional academic writers, not the student editors, to make sure the appropriate norms are in place. We might indeed conclude that we need stricter disclosure or conflict norms in the legal academy, as opposed to in fields that use peer review (as we should), precisely because of the gatekeepers' inexperience.

A couple of questions are raised in the comments about how we should deal with tenure letters and other such documents, whether any norm we might have in place for book reviews should be absolute or flexible, and how different intra-school relationships are from the kinds of relationships, friendships, and enmities that can arise between scholars at different schools. I'll try to address that in a separate post, time permitting. I will add that some norms *do* apply in those areas, eg. at a minimum, when writing a tenure letter I disclose any information that might affect the reader's evaluation of my letter. Anyway, one piece at a time, and thanks for the comments.

Posted by: Paul Horwitz | Feb 28, 2014 9:49:11 AM

This comment/question goes well beyond the topic of Paul's post, but I wonder how many "fixed and well-known norms" there are in the legal academy that could be viewed as a sort of informal code of ethics. This is a topic that I am interested in writing about, and so I'd welcome any thoughts people might have offline ([email protected]).

Posted by: carissa | Feb 28, 2014 12:06:44 PM

Carissa,
here's a relevant post of mine on that topic: the ethical practice of legal scholarship.
http://prawfsblawg.blogs.com/prawfsblawg/2006/12/thoughts_on_the.html

I've always meant to convert this into a J Legal Educ piece and never got around to it so I hope you follow up since I think there's lots of interesting issues here.
xo
d

Posted by: Dan Markel | Feb 28, 2014 1:37:31 PM

Anna, I do not think that Greenawalt reviewed Hamburger's book when they were colleagues at the same institution, though they are now.

Posted by: Marc DeGirolami | Feb 28, 2014 3:31:20 PM

Ah Marc you're right - my bad. I forgot Hamburger published Separation of Church and State when he was still in Chicago.

Posted by: Anna Su | Feb 28, 2014 3:42:25 PM

I think this could only be a debate within law. Other disciplines understand the norms, and colleagues, friends would not review each other, nor would they write tenure letters for co-clerks, co-authors, former roommates, friends, people who have previously reviewed drafts, cousins, etc.

Posted by: anon | Feb 28, 2014 11:05:50 PM

I agree up to a point with the last comment. I suspect that, as a broad-brush comment, it is overgenerous to the rest of the academy and undergenerous to the legal academy. As a matter of fact, although still anecdotally, my experience with other sectors of the academy makes me pretty damn sure of it (one major difference being that, a good deal of the time, one *knows* whether relevant rules or norms are being disregarded or loosely applied in other schools). That said, obviously this post was not a compliment to the legal academy, which gets many of the benefits of the university but much less of the training and inculcation into academic rules and norms that is very much a part of the longer and more detailed process of education in a doctoral program. It's not so much that I think it could only be a debate within the law as that, or that I assume the result would or should be the same; it's that there have been informed debates on these issues in other academic sectors and an arrival at a more substantial set of rules, and there have been fewer (and less informed) debates on these issues in our part of the academy. Or so it seems to me.

Posted by: Paul Horwitz | Mar 1, 2014 11:08:26 AM

@anon-- That is not correct. Historians have reviewed the works of colleagues.

Posted by: CHS | Mar 1, 2014 3:19:26 PM

It is possible to be objective so it is possible to review a colleague's work in a manner that is useful to others, but it is not so common in any discipline. If you take a look at the review that prompted this post, it is really a puff piece that no peer-review journal would have published, but more problematic is that the authors wrote it. Again, that kind of thing could only happen in law, and the tenure letter issue is really kind of a travesty in law -- while it is good to reveal your connections ("I was best man at his wedding but that will not bias my opinion . . ."), it is better to reveal that up front and any credible school should not go forward with the request. But more often than not, at least in my experience, co-clerks, law school classmates, colleagues at one time or another, friends, don't reveal the connection at all.

Posted by: anon | Mar 2, 2014 9:07:00 PM

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