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Thursday, April 13, 2017

law reviews and the faculty of their law schools

Which do you think is the best policy, and why:

(1) A law review should never publish articles written by the faculty of its law school.

(2) A law review should treat submissions from the faculty of its law school as it would any other submission.

(3) A law review should give a leg-up in its review process to submissions from the faculty of its law school by immediately expediting such submissions for review.

Note 1: This question concerns only articles, not symposia, book reviews, and the like. Please don't complicate this by asking about essays.

Note 2: I'm genuinely interested in the responses. I have no agenda here.

Posted by Mark Fenster on April 13, 2017 at 10:34 PM | Permalink


Can we pick a 4th option, that a law review shouldn't have a categorical bar on accepting articles from its home faculty but should be reluctant to do so?

The problem, as professors know, is that they have an extraordinary advantage over faculty from other schools in placing articles in their home journals. Student law review editors want recommendations; they favor profs they personally know and may want to please; and they can be worried about having a rejected professor (potentially a current or future teacher) be upset with them. All of those realities make them significantly more likely to publish a weak article from professors at their own schools. And for those reasons, the average quality of articles from home faculty is, in my experience, recognizably lower than the average quality of articles from outside faculty. Cf. Albert Yoon, Editorial Bias in Legal Academia, Journal of Legal Analysis (providing possible empirical support for that through citation counts).

The question is what to do about it. For a journal, I think there is no perfect answer. As I see it, each of the three listed options has substantial problems. The problem with a flat ban is that it misses out on really good articles that might come in. And pity the poor Harvard faculty that couldn't submit to the HLR! ;) A policy of always assisting home professors is a terrible idea, I think. it makes the favoritism an even greater problem.

A policy of treating submissions equally sounds good in theory, and I think it's the best of the three listed options. At the same time, I worry that a policy of equality will likely turn into a policy of great favoritism given the pressures listed above. Given that, I wonder if option 4 is better: Allow home faculty submissions, but be wary of publishing home faculty. The idea would be to try to cancel out the built in favoritism: Counter the unfair bias to publish that happens naturally with a formal policy of bias the other way to try to cancel it out. I'm not sure which of those two options is best; it depends on how the policy of equal treatment is implemented.

Posted by: Orin Kerr | Apr 14, 2017 1:30:37 AM

Being from Canada, where law review articles are peer reviewed, one potential obvious solution to me would seem to be some sort of external check on whether those articles are worthy of publication. Even if law reviews aren't going to move towards widespread peer review, they could send out internal articles for some sort of review.

Posted by: Anon | Apr 14, 2017 2:32:43 AM

Early in my teaching career, I heard a story of a Professor at a top-ranked law school who submitted an article to his home school law review, which declined to publish it. In a fit of pique, he announced that he would not write clerkship recommendations for any student who was then on the review's editorial board. That story persuaded me to adopt a rule against submitting an article to one of my school's journals, and continues to persuade me that a categorical ban is the best option.

Posted by: Jessica Litman | Apr 14, 2017 8:02:36 AM

For what is worth, the policy when I was Senior Articles Editor at a journal was that we would give home-professor submissions a full-committee read and consideration, but that we would otherwise treat them the same as other pieces. That said, we didn't get very many articles from professor at the school, perhaps because we were well-rated, but not HLR well-rated. They could place elsewhere at essentially the same rank.

The worst thing about it was the policy that the Senior Articles Editor had to personally deliver any rejections to the faculty member. Blessedly, they were always gracious and understood how awful the task was.

Posted by: SM | Apr 14, 2017 9:18:03 AM

"In a fit of pique, he announced that he would not write clerkship recommendations for any student who was then on the review's editorial board."

It is an indictment of the law school system if he wasn't dragged in front an inquiry panel and been threatened with firing.

Posted by: D.C. | Apr 14, 2017 9:21:58 AM

As a junior-level professor still trying to build my reputation as a scholar, I generally do not submit to my home law review - if only to avoid the appearance that my work is being published because of favoritism instead of merit. I wonder if the rules or norms regarding these types of home journal submissions should come from the faculty themselves, instead of the poor law students forced to make these (sometimes awkward) decisions.

Posted by: NC | Apr 14, 2017 9:42:01 AM

How about still another option?: A law review will consider publishing articles from its own faculty, but only under one of two circumstances: (1) through the same process as it considers other submissions, but only if there is the publication decision that is ultimately made by faculty reviewers - who are kept unaware of the author's identity - rather than student editors (this is, as I understand it, the external check suggested by as the previous commenter) or (2) on the understanding that when a law review publishes an article by a school's own faculty it will be treated as a solicited article - and viewed as such by the outside world - even when it is a non-symposium piece - and without any pretense that the review has been able to review piece without the favoritism pressures mentioned in the previous comments by Jessica Litman and Orin Kerr.

I'm not sure how feasible the first of these options is, given the likelihood that the faculty reviewers who are best for reviewing a piece on a particular topic will have read drafts of that piece from SSRN, in works-in-progress workshops, or - at least discussed it in conversation with their colleagues. If that's true, anonymity will be hard to maintain (as it will also be if an author cites his or her own previous work, and identifies it has such).

It's also possible, I suppose, that anonymity can make it more possible to review internal and external article or essay submissions on a level playing field, even when students editors conduct the review and make publication decisions - but even here, the problem described in the previous comment might still arise: A faculty member could react negatively to student editors even when their decision was made without their knowing his or her identity. Moreover, even when a faculty member would not react that way, the process might still not work well if student editors are at all anxious about the possibility of such a reaction - or, for other reasons, less likely to reject a piece from a professor they've had as a teacher than an external submission. Similar problems could arise even where there is a formal presumption against publishing a school's own faculty, since it's conceivable (although hopefully unlikely) that a faculty member would hold it against the school's law review when the review decision that presumption was overcome for another professor there, but not for the faculty member's own article submission.

Posted by: Marc Blitz | Apr 14, 2017 9:48:08 AM

Gee, do you think a single- or double-blind review system just might help minimize these problems? Comparing and contrasting this (perfectly legitimate in isolation) set of questions with the earlier musings on law reviews in general — with implicit comparison to journals from other fields — suggests that's not as crazy as one might think.

Or maybe it is, since in law "argument from authority" isn't a fallacy — it's the whole game.

Posted by: C.E. Petit | Apr 14, 2017 9:48:57 AM

When I was head Articles Editor on our law review, a recently hired faculty member came by our office with an article he said he was submitting to us because he'd been told getting it accepted by our law review would let him expedite and "get it accepted at a good law review." We were a top-20 school. I took great pleasure in rejecting his submission.

Posted by: anonprof | Apr 14, 2017 9:54:37 AM

I call this "homering", and I don't do it. As an articles editor, my board viewed expedite requests coming from a scholar's home institution with skepticism. I don't think we extended any offers to people trying to "homer" us. Professionally, I am also skeptical of colleagues or applicants whose publications come from their home institution. To me, it means they unfairly punched above their rank if they could not get a comparable offer elsewhere. If everyone took the same skeptical approach, it would solve the problem pretty quickly, I think.

Posted by: Facepalm | Apr 14, 2017 12:38:51 PM

Orin--"At the same time, I worry that a policy of equality will likely turn into a policy of great favoritism given the pressures listed above."

Considering how the supreme court has never uphold affirmative action (except in 1978, 2003, and 2016), I don't see how you could think that equality could lead to favoritism or other differential treatment.

Posted by: QuestionBegger | Apr 14, 2017 1:01:15 PM

There is another option - student-edited law reviews should ONLY publish articles from their school's own professors. This was the de facto or de jure policy of some journals in their early days -- other than student notes/case comments and practitioner articles, they published the articles of their own faculty. The prestige of the law review was directly connected to the prestige of the students and faculty. The student-editing makes perfect sense under this system because students operate like research assistants for the faculty and don't really perform a gatekeeper role. This would, of course, remove the law review placement as an external gauge for measuring a professor's worth, but that probably makes sense. Students can't or shouldn't provide that anyway and most faculty still read the work. If universities still require external validation, then law professors will submit to peer-reviewed journals and start their own peer-reviewed journals in law. The student-edited law review will then resume it's rightful place as a vehicle to get work in the public realm to inform and influence law/policy, rather than to serve as a measure of faculty productivity and prestige.

Posted by: Anon2 | Apr 14, 2017 1:23:22 PM

The option I would add is that it's okay to submit to a home-school journal, and it's okay for the journal to give whatever advantage it wishes to you, as long as you commit to accepting an offer from that journal if one is made. Not wedded to this, but perhaps it helps solve some of the problems of the other options.

Posted by: Scott Dodson | Apr 14, 2017 1:37:28 PM

A simple solution -- law review submissions should be scrubbed of all identifying information before consideration. Or if law reviews want to take identity somewhat into account, be scrubbed with only ID like "professor; top-25 school" or "former professor, 25-50 school, current DOJ," etc.

Posted by: Nonnymouse | Apr 14, 2017 1:41:18 PM

How about we have one set of professors whose sole job is to teach and who is evaluated solely on teaching, and another set of professors whose sole job is to research and publish articles and books, and who is evaluated solely on their publications?
Each of which has a ten-year term-limit to prevent any single professor from having too much power or influence within their department?

Posted by: TermLimits | Apr 14, 2017 2:48:33 PM

I endorse Orin Kerr's fourth option and I wonder if it is something that can be achieved without relying on the law reviews: hiring committees and tenure committees could mitigate the problem by deciding to judge own-school publications more harshly.

The most egregious version of this behavior that I've seen -- and I've seen it at a number of T14 schools -- is where the Law Review faculty advisor himself/herself publishes in the journal. I can't believe (a) that this is allowed and (b) that the faculty advisor would feel comfortable doing it.

Posted by: Elsbeth Tascioni | Apr 14, 2017 2:57:56 PM

Re last comment, I'm constantly surprised to hear critics so confidently discuss law reviews in blanket terms, as though practices at law reviews across the country are uniform. In fact they vary widely. For example, a review much-discussed in this thread and others recently on this web page is the Harvard Law Review. The HLR does not have a single or specific designated "Law Review faculty advisor" from the HLS faculty. The connections are loose and informal, and there is no formal tie between HLS and the HLR (a part of the blessings of the Bluebook...). So it makes no sense to say that it's "astonishing" or "egregious" that faculty at HLS are published in the HLR. (And after all it makes sense for non-cynical reasons that they are, does it not?)

Posted by: Former Editor | Apr 14, 2017 3:24:30 PM

When I was an editor at a very low rated journal we sometimes had trouble filing issues. Home institution professors did us a favor by writing articles for us to publish. Worth considering that there are potentially two sides to this coin.

Posted by: john | Apr 14, 2017 3:38:09 PM

Former Editor,

I may have missed it, but I don't see where anyone has said it is "astonishing or egregious that faculty at HLS are published in the HLR." If anyone made that particular claim, it seems pretty silly. But not having served on the HLR, I'm curious about something, assuming you did: In your experience, how often do the HLR editors know, at the time of a final vote, that a submission being considered was by an HLS prof? I understand that submissions start blind, but I'm curious if the anonymity dissipates during the process. And if editors do know who wrote the piece when it is voted on, how much of an influence can that have on the decision of whether to publish the article?

Posted by: Orin Kerr | Apr 14, 2017 5:57:33 PM

In response to Orin Kerr: each incoming class of Articles Committee Chairs generally knows author identity right away (HLR uses its own submission system), but they farm out submissions in a tiered process to other editors who do not know author identity when they make recommendations as to whether to advance the piece. So there is a not-insignificant amount of anonymous review. At a certain point (Committee review, or full-body review) identity is disclosed; the exact point in time in which it is will vary by year because incoming editors can tweak the process if they feel certain changes need to be made. (And year-to-year changes to when anonymity dissipates itself tends to work as a see-saw).

As for HLS authors, in fact Articles Chairs at least when I was there felt uneasy sending through home-school authors because they are keenly aware of their own potential blind spots and biases in evaluating such authors (even given faculty (HLS or not) input at a certain stage of review). It's not a make-or-break factor, but it's acknowledged, and in fact more often than not a disadvantage to the HLS author.

That last claim may seem to ring false given how often HLS professors appear in the HLR, but in fact HLR does reject HLS authors. On the other hand, HLS professors often submit the best pieces. As you know, that's a relative statement, given (a) HLR receives a huge amount of submissions, (b) HLR can afford to pick whatever it likes because almost nobody turns down an offer, and (c) the vast majority of submissions is flat-footed, unimaginative, or (by far the most common type) low-hanging-fruit-type pieces that stake out a position merely because that exact position has not yet been staked out within the relevant literature.

Posted by: Former Editor | Apr 14, 2017 7:11:02 PM

Thanks, Former Editor, that's very interesting.

Let me push back a bit on one thing, though. If I understand you correctly, your impression is that HLS authors are treated the same way or (if anything) discriminated against in the HLR selection process. That may be right, but I'm not sure how to square that with the results of Professor Yoon's study on law review internal/external citation rates over several decades, available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2336775. One can mostly tell which numbers belong to the HLR in Yoon's study because the charts are by the usual US News rank of the home school over that period, which I gather for Harvard would be #2.

If I am reading the charts in Yoon's article correctly, Yoon finds that at the HLR, articles by HLS authors are cited less than the articles by non-HLS authors at T14 schools. Further, articles by HLS authors that appear in the HLR are cited significantly less than articles by HLS authors that appear other T14 journals (such as the Duke Law Journal, NYU Law Review, etc.). The same dynamic is true at all the top schools; the HLR numbers fit in the same pattern.

Counting citations clearly can be problematic, as there is only an imperfect relationship between article quality and citation rates. But to the extent citation counts are some kind of signal of quality, the results of Yoon's study seem to suggest that at the HLR, as at other top journals, the home-team authors are receiving a benefit beyond the merits of their submissions.

Posted by: Orin Kerr | Apr 14, 2017 8:03:04 PM

I'd like to bump Anon2's suggestion that law reviews should go "back to to the future" & return to the practice of only publishing articles by their school's own professors. While it is possible (or at least conceivable) that at some point in time student-edited law reviews increased efficiency by filtering submissions, that is decidedly no longer the case. They are a gargantuan waste of time for everyone involved. And worse, pedagogically inefficient. If law reviews only published articles by their school's own professors, it would promote promote productive conversations between professors & students about scholarly norms & expectations, which could be of great benefit to students. If we are assigning jobs to students, we should try to maximize their pedagogical value. The institution of law review is begging for improvement.

Posted by: Brian L. Frye | Apr 14, 2017 8:56:46 PM

The problem, if problem there is, extends beyond faculty submitting their own work to their students. Faculty can also lean on student editors for special treatment of a submission from a friend at another institution. I know several law professors who submit and simultaneously contact a friend at the journal's institution to ask for help in persuading the editors to accept the submission. The strategy seems to work quite often. And of course there are later payoffs to the faculty member who leans on his students at the request of somebody else (the favor will be returned in kind or there will be a conference invitation, etc.).

Posted by: Jason Mazzone | Apr 14, 2017 9:03:20 PM

Orin, perhaps that's right. I'm not as familiar with the Yoon study but cannot look into it now. (And for various reasons some of which I suspect you share, I put little stock in citation counts in general.) But I am happy to concede that the system is imperfect, and there are overall patterns of slippages that sometimes skew in favor of home-school authors at their law reviews.

Posted by: Former Editor | Apr 14, 2017 10:38:40 PM

Completely. Blind. Review.

Then this question doesn't matter.

Posted by: YesterdayIKilledAMammoth | Apr 14, 2017 11:08:27 PM

Mammoth, a main reason why completely blind review is not done (at least from my first-hand experience) is that editors want diversity -- of gender, race, etc. If their first few slots are taken by white men, they want to be able to pick a more diverse author for some of the remaining slots. It's ideological.

Posted by: Former Editor | Apr 14, 2017 11:26:37 PM

I find that argument wholly unconvincing.

In scholarship, diversity of argument matters infinitely more than diversity of author. And diversity of author will follow diversity of argument, since diverse arguments naturally will come from people of diverse backgrounds (and diverse colors/genders which is what you actually mean by diverse). And diversity of any type is laughably constrained by the 2 or 3 articles per issue.

Of course, the argument may be that law reviews are not concerned, primarily, with scholarship (here, every other discipline would agree with you). Rather, they are vehicles for "diverse" people to expound their views in horrendously boring, never-ending manifestos. If so, so be it. But let's just be honest about the journal's primarily social justice concerns.

Next, the fact that the same (insanely well-compensated socio-economically) names appear over and over and over and over and over and over and over in the top journals makes any pretense a diversity a stretch of the imagination.

Finally, by doing away with the needless books-disguised-as-articles, and publishing more articles "rigorously" reviewed by expe...ummm, 2Ls, I don't think diversity would be a problem. Unless, of course, 2Ls actually aren't competent enough to discern diverse, yet equally valid, legal arguments.

Posted by: YesterdayIKilledAMammoth | Apr 15, 2017 12:22:37 AM

Mammoth and Former Editor:

Completely blind review, over time, tends to result in more diversity (whether of "viewpoint" or of "author demographics") than named review... particularly in the face of a nondiverse and/or "clubby" and/or "institutional-prestige-bound" pool of submitters/submissions. Examining academic journals' experience in literature — particularly in journals not devoted to a particular national canon — in the 1970s and 1980s might prove enlightening. Unfortunately, it's a process with a long lead time — much longer than the track to tenure, or even to full promotion in the humanities.

The problem with "law journal reform" is that no matter what is done with it, its positive effects and unanticipated consequences will not become adequately clear for at least one or two full tenure-review cycles... meaning that there will be "casualties." And I don't see the institution of Faculty tolerating that.

Posted by: C.E. Petit | Apr 15, 2017 10:37:35 AM

Completely blind review doesn't solve this problem if it's quite likely reviewers will get strong clues that an article they are reviewing is by a professor in their school - for example, because mention of it comes up in class, or a workshop open to students, or informal conversation. Blind review also doesn't protect students if one of their professors becomes upset, and holds it against student editors, when a blind review process results in rejection of that professor's piece (as described in earlier comments).

A blind review process is still a good idea - but as an addition to, not a substitute for - a categorical ban on professors submitting to their own school's law reviews - except for a symposium piece, or a piece that is otherwise invited by the law review. Such invited pieces could address the need described above by john to help fill issues, without creating the pretense that such an internal submission was part of the same competitive process applied to other submissions.

A categorical ban doesn't entirely solve the problem identified above by Jason Mazzone - where outside authors get a leg up by asking faculty they know at the law journal's school to help advocate for them. But if there is a blind review process, and that kind of personal lobbying is understood to violate the rules of the process, that would hopefully discourage it (again, unless it is understood by everyone, and the outside world, that that author was invited by the law journal to contribute and didn't place the article through a review process based on the merits of the piece).

Posted by: Marc Blitz | Apr 15, 2017 11:41:18 AM

Can I vote for peer review?

Posted by: Eric Muller | Apr 15, 2017 12:54:33 PM

Eric Muller--

Only if you show voter ID. Members only, you understand.

Posted by: Provocateur | Apr 15, 2017 1:42:15 PM

The law-review debate crops up on Prawfs, CoOp, and/or TFL every year or two, and every time the arguments are familiar, repetitive, and tedious.

All of these problems would go away if the legal academy stopped treating where an article was published as a proxy for its quality. Authors would stop worrying about placement, journals would stop worrying about competing for articles, the question of home-school bias would seem like a quaint curiosity, massive simultaneous submission would disappear, etc. Never send pre-publication filtering to do post-publication curation's job.

Posted by: James Grimmelmann | Apr 15, 2017 7:38:53 PM

James, you say that every time.

Posted by: Orin Kerr | Apr 15, 2017 9:15:48 PM

Why not bypass the journals entirely and just publish directly to your personal website or to an online database like SSRN?

Every year there's a slew of bellyaching over the publishing process, but yet there's an immensely simple way to bypass it. Just upload the file online. Bingo, it's published, you're done. Adding the search infrastructure on top of it wouldn't be too hard. All you're really giving up is the unpaid editing labor.

...And the proxy for quality.

That's the big hurdle, isn't it? If you skip the journals and go right to an open database, how will anyone evaluate the quality of your writing without the proxy offered by a journal's prestige?

Posted by: Derek Tokaz | Apr 15, 2017 9:30:31 PM

"Mammoth, a main reason why completely blind review is not done (at least from my first-hand experience) is that editors want diversity -- of gender, race, etc"

Wow. That's not even coded. You're flat out saying that judging on quality rather than identity would mean white guys get all the spots.

Posted by: D.C. | Apr 16, 2017 8:13:03 AM

No. That's not what I'm "flat out saying." I didn't say "all." But I think it's reasonable to say "more than what 2L/3L editors who want diversity would like." And I'm not defending or evaluating the practice in one direction or another. I'm telling you what the thought process is, and what (recent) editors' priorities are.

Posted by: Former Editor | Apr 16, 2017 12:39:35 PM

Alright, if you are disclaiming that kind of belief yourself then I apologize. But it does not speak well to the moral compass or intellectual abilities of any law review editors who think that they are not going to be diverse if they focus on article quality. That's what's called white supremacy.

Posted by: D.C. | Apr 16, 2017 10:24:34 PM

Putting broader and largely infeasible (at least in the short term) solutions aside, I'd favor some variant of the "Anon | Apr 14, 2017 2:32:43 AM" solution: if the law review does not already provide for external reviews, use them before accepting home submissions, at least. Asking editors to apply extra scrutiny themselves is fine, but making sure at least some scrutiny is external, and announcing that policy to the world, will probably reduce the interest of home authors in pressuring editors (at least as a complete solution) and assure others submitting that they are getting a fair shake. To make sure it's just an extra check, it should probably be pursued only for articles that would otherwise be accepted, since external reviews on home pieces mid-assessment might actually skew things in their favor . . . to the extent that non-home submissions are denied a similar chance at having an external reviewer rave about their strengths and urge acceptance.

This kind of policy risks non-merits effects on the rate of home publishing, because the attendant delays will make it harder to keep pace with other acceptances for non-exclusive submissions, but so be it.

Posted by: Ed Swaine | Apr 17, 2017 9:15:54 AM

Well played, Orin.

Posted by: James Grimmelmann | Apr 18, 2017 10:39:30 AM

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