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Thursday, May 15, 2008

An Open Letter to the Yale Law Journal: What is Your Real Policy?

I want Prawfs to do more hard-hitting investigative journalism; here's my contribution, which might well blow the lid off of the Yale Law Journal.   So the YLJ "claims" in their submission policy that "The Journal reviews all manuscripts anonymously, without regard to the author's name, institutional affiliation, prior publications, or pending publication offers."  (Guidelines here)  But if this is true, then why does their submission website allow for the uploading, albeit optionally, of a CV?  I hate to call them out in public, but the YLJ did not respond to an email inquiry before post time.   Is it a trick?  Those who submit CVs will be downgraded because they obviously didn't read the submission guidelines carefully?   Actually, my real theory is that so many authors want to submit a CV that the editors decided to allow submission of one, so authors didn't append it to their article or cover letter.

But with the information there, when, at some point in the process, the editors find a piece interesting, do they still refuse on principle to read the CV to check out the track record and training of the contributor?   I find it hard to believe.

UPDATE: This post began mainly as a joke; I thought I had found an inconsistency in the YLJ policy, not an inaccuracy.  But then commentators, anonymous and otherwise, said that the evaluation policy was not correctly described on the YLJ website: Evaluation is non-blind at the critical stage where a submission is rejected or advances to serious consideration.   At subsequent stages it is mixed, with one voter (the initial screener) knowing the author's identity and other information, and other voters "blind", but aware that the initial screener's vote and opinion are based on additional information.  Now I am really dying to know the specifics of the current policy, and, if review is not entirely blind, as commentators suggest, why the YLJ would state that it is. 

Another point: Some research suggests that reviewers aware of an author's sex may discriminate against female scholars (a famous study suggests that knowing the sex of an auditioning musician  has a similar effect).  I doubt the YLJ would say they don't care about the possibility of discrimination.  But the other obvious retort--"don't worry about the non-blind aspects of our selection policy, we monitor outcomes to ensure  fair representation on sex (and race)"--makes the description of the selection policy quite distant from the actual policy.

Updated Update here.

Posted by Marc Miller on May 15, 2008 at 03:07 PM in Life of Law Schools | Permalink


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I'm late to the game, but why has no one addressed the issue of faculty consults? Back in my law review days, we never took anything without having a faculty member and expert in the field weigh in on it. While I suppose it's possible that some good articles never even made it to faculty review because the first reader didn't notice their worth, but more often if an article wasn't being picked up anywhere, the problem was that one or more faculty reviewers didn't like it.

Law students weren't making decisions in a vacuum.

Posted by: Anon | May 26, 2008 7:06:31 AM

Alec, you're right to be disappointed in us for the fact that the swipe at you has been on the blog for the last couple days. I wish I had seen it and deleted it earlier as it has no relevance to the gist of this post by Jack. My apologies. I'd be happy to redact as to your preference. Just let me know. Again, many apologies.

Posted by: Dan Markel | May 21, 2008 5:15:09 PM

Hi Everyone,

What a strange set of comments!

I did not insult my students, and I have a great deal of respect for 1Ls, 2Ls and even 3Ls. I did not mean my comment to be "incendiary" at all. Editors on student-edited law reviews work very hard, and I respect that work, though I think such activity is overrated (but did not say so), and I wsih students would be less obsessed with it.

I do find the student-edited law review interesting, as a sociological phenomenon, and I think it deserves to be examined in a serious historical-sociological way. How did the form, as a taken-for-granted feature of the law world, emerge and institutionalize as it has? The question seems important, given the debate here and elsewhere. That's all I meant by "as a social scientist ..." Further, any good piece of legal research could be placed in a refereed journal, especially if it claims to be inter-disciplinary, which so many articles do. I would ask people to think of this from an anthropologist-from-Mars point of view - it is intriguing that anon(2) thinks that there are no other journals that have the "cache" of these journals - it's interesting precisely because he may be right, and thus deserves to be explained.

I was also interested in why someone would put their best piece in these kinds of journals, since I would not. But my query and statement attacks no one, and in my response I agreed to agree with the response, if it's right: if what most law schools mostly value is law review articles, then there's the answer.

In the end of course, it makes zero difference what I think about any of these issues.

Anon of May 19 attacks me personally but anonymously (what courage). I am one of the most unpopular teachers at Yale? In fact, I have won several teaching awards over my career. This term I have three students in my comparative constitutional law seminar (not the smallest seminar at the YLS this term), though 15 were originally enrolled. The day before classes started, the registrar changed my course to a different day and time (there was an unavoidable scheduling mix-up), and I lost most of my students - rightly so, since my course was only two credits and post-change conflicted with everyone's schedule. Why such details would possible be of interest to Anon-of-May-19 is anyone's guess. In any case, Anon-of-May-19 seems to have only one actual argument (other than that I am first-class jerk, which is quite possible if beside the point): scholars should not have to put up with "harsh criticism" and other "unpleasant" unpleasantries - thank god they have the law review, for the sake of our egos. More whining.

In any event, it would seem that one gets much more harsh and anonymous criticism in your blog.

I have found it interesting though - thanks.

Posted by: Alec Stone Sweet | May 21, 2008 4:27:35 PM

My comment was in response to the outgoing EIC at Yale, who contacted Leiter. As I said, go look at his post.

Posted by: Jamie Colburn | May 21, 2008 9:45:58 AM

"I'll just finish this thread up by saying that the YLJ editors' comments --and you should see the communication to Brian Leiter that Leiter posted to his blog -- have only made matters worse. The most direct response has been that YLJ is publishing the work of my former colleague Jill Anderson this year (who teaches at Western New England) and so they can't possibly be guilty of credential bias."

Actually, this was me, and I'm not a YLJ editor. I was just genuinely curious so went and looked at the website. I didn't know Anderson's resume. It sounds quite impressive. But truly... how many law professors have resumes that AREN'T impressive? Don't you have to have done at least a few pretty amazing things to get the job in the first place?

Posted by: Mark | May 20, 2008 9:42:19 PM

That is, meaning it has been a lot of fun, no disparagement of your work or your journals.

Posted by: Michael Thad Allen | May 20, 2008 3:21:42 PM

Reid, It is my sincere hope that you see the light, become just as bitter as me, and also switch careers!

Posted by: Michael Thad Allen | May 20, 2008 3:11:38 PM

I publish in both student-edited law reviews and peer-reviewed scholarly and scientific journals. I have a somewhat less cynical view of the double-blind peer review process than Michael and "grad student." I agree that the peer review process takes far too long (I know nobody who would disagree with this point). However, a few items to consider:

1) How can one know that submitted articles are "sent to a selected list of scholars that an editor knows, *almost always personally*." (emphasis added). Really? My colleagues and I are constantly solicited to do blind reviews by action editors whom we not only do not know personally, but with whom we are largely unfamiliar. In addition, as action editors of various journals ourselves, we repeatedly solicit peer reviewers whom we do not personally know. These selections are based on scholarly common ground, not some kind of buddy system. In fairness to Michael, this may vary quite a bit from discipline to discipline, of course, and I am sure that his experiences are different.

2) At least by my (and my colleagues') experiences, although reviews we've received are typically challenging (even brutal/daunting in some cases), seldom do they appear to be made in bad faith. In addition, they nearly always contribute to making my/our manuscripts significantly better.

3) A tough skin is necessary, but would we really want a system by which everything is peaches and cream and anyone with fingers and a computer can regularly publish? Surely there should be some standards. And just as surely, there should be a check and balance system. Remember, if reviews are perceived to be unfair, the author may simply address the issues with the action editor. This is a regular practice.

4) As for the colorful language about "close minded evidence-proof dogma championed by a bunch of 65-year-old overtenured professors," my response is: Wow! (or perhaps Yikes!). I am 36 and pre-tenure - I hope I never come close to developing this level of bitterness!

The double-blind peer review process is not without problems, but it is far from deserving a couple of the attacks posted above, at least in my humble opinion.

Posted by: Reid G. Fontaine | May 20, 2008 11:52:40 AM

To answer another anon, I thought the substantive argument of the earlier post by anon was that the law reviews *do not* decide tenure, but rather just do some preliminary sorting and editing, and that the professors who decide tenure would be abdicating responsibility by relying solely on the judgment of the law reviews. Another anon, you really are that "clueless" if you think that college students or law students make the tenure decisions.

Posted by: anon3 | May 20, 2008 9:25:31 AM

I agree with Michael's post. I know a number of budding academics who get thoroughly "trashed" by anonymous peer reviews and because of this go through a period of depression. Maybe they need to get a tougher skin if they want to succeed in academia, but reading through the peer reviews myself, it seems like the comments are very unfair and partly attributable to the blind process. All of this jadedness only begets more jadedness. It's clear that the peer-review process has its flaws. Choice in where to publish is generally a good thing.

Posted by: grad student | May 20, 2008 9:17:42 AM

I read the comment by Alec Stone Sweet and a few others, and I think the faith in peer-reviewed journals is misplaced. I have published in them extensively. You can see for yourself on my website if you like. I'm not speaking as an uniformed 2L but as an experienced academic author who chucked in tenure to got to lawschool.

The review process usually boils down to this: An article is sent to a selected list of scholars that an editor knows, almost always personally. They are usually repeat players. They write lengthy requests for changes if an author does not cite their work favorably or deviates from whatever pedantic tribe the reviewers belong to, the more distant from any relevant contemporary interest, the better. The weaknesses are obvious: the freedom to pursue arcana, evolve ear-splitting sesquipedalian jargon, to revel in irrelevance, and, worst of all, to perpetuate close minded evidence-proof dogma championed by a bunch of 65-year-old overtenured professors. Add to this that publication turnaround is delayed immeasurably so that your piece almost always appears long after its timeliness has faded.

Why not be honest. The existence of flagship law journals edited by neophytes could ideally make Prawfs accountable to smart readers who are not beholden to them in the same way that PHD students are in other disciplines. If YLJ doesn't live up to that high purpose, shame on the editors. Student editorship has drawbacks, but there are also reviewed journals if you want to get your rocks off in other venues.

Posted by: Michael Thad Allen | May 20, 2008 8:30:11 AM

I'll just finish this thread up by saying that the YLJ editors' comments --and you should see the communication to Brian Leiter that Leiter posted to his blog -- have only made matters worse. The most direct response has been that YLJ is publishing the work of my former colleague Jill Anderson this year (who teaches at Western New England) and so they can't possibly be guilty of credential bias. This is offensive on a couple of levels but the most offensive is its implication that Professor Anderson's resume is somehow weak or unedifying. YLJ's editors obviously think that a former Skadden fellow, magna graduate of Columbia Law School/Columbia Law Review who went ABD in linguistics at a national program (her piece is a law & linguistics analysis of the ADA) is someone who confirms their impartiality on credentials. The other author they're publishing recently who supposedly confirms this impartiality is at Queens in Canada. I'm privileged to count this author, Malcolm Thorburn, as a former colleague (and current friend), too. But Professor Thorburn is another with a sterling resume --clerk at the Canadian Supreme Court, medalist at U of T law school, fellow at Columbia Law School, etc. These two aren't *currently* at top 25 (US) law schools . . . so that must prove YLJ editors aren't swayed by credentials in this arrangement. Give me a break.

Posted by: Jamison Colburn | May 20, 2008 7:03:17 AM

As a former articles editor at one of these top journals, I would confidently say saying that at least by the time an article has an offer from a top 20-or-so journal (putting aside for now that this is pretty subjective — let's just say someplace that gets our attention) and the expedite request comes in, any pretensions of a blind review process go out the window. Often expedited articles need a decision on a remarkably short deadline (e.g. Columbia and NYU regularly give one-hour exploding offers, but which are sometimes negotiable, and UVA regularly gives 24 hour offers), and even when there isn't a formal deadline, it's still likely to be snatched up very quickly by a Harvard or Yale or Stanford so we need to make a very quick decision anyway — and when we have to make such an important decision on so short a deadline, the author's identity is too valuable a proxy to ignore. This is especially true for ambitious, large-scale pieces that we'd normally hold for more discussion or for a faculty review to make sure they're sound; established authors get much more leeway to do things like completely re-envision an entire field of law, in part because they're more qualified to do so and in part because readers are more likely to take them seriously rather than dismiss it as some crackpot trying to argue something outrageous.

Moreover, even when we make our best efforts to do blind review on as many pieces as possible, the lower-tier journals which are expediting them up generally do NOT use blind review, so the pieces where we're on a short deadline and really taking author identity into account tend to be those same articles where the author is a known name, so to speak. Even if we don't take author identity into account directly, it still has a tremendous influence over what articles work their way up the ranks to us, and thus over which articles get our serious attention.

It doesn't help that many authors do everything possible to thwart our blind review process — sometimes inadvertently, but I'm convinced sometimes very much intentionally. Something like 99.5% of the articles we get refuse to put author identifying information on a separate cover page and instead prominently display the author's name, school affiliation, and an asterisk footnote bragging about various other credentials accomplishments and giving shout-outs to all the other big names they can to thank them for "helpful advice." Even if we then try to edit these out, a significant number of authors not only try to cite their past articles as much as possible throughout the article, but do so in a way that makes it as clear as possible that this author is the same one that wrote those articles — the result being that it's very difficult to find and redact all of those references, especially when we often have hundreds of submissions a week. Perhaps this is just an unintentional byproduct of authors trying to increase the citation count of their past articles, but the patterns I see in authors going out of their way to do this in a self-identifying way and in big-name authors doing this more often led me to often think it was an intentional attempt to thwart blind review.

[And then some of the best-known authors go above and beyond even that by constantly calling or emailing our articles editors rather than using our online systems or ExpressO. My favorite example is a certain #1 most-cited law professor, who liked to personally email articles editors to "ask" if they're currently accepting submissions – which is a downright insulting rouse; they KNOW that submissions are currently being accepted! – and then follow up by sending the article as an email attachment, such that there's no way we could possibly not notice who's sending us this article. Oh, and the initial emails also made sure to throw in a gratuitous mention that he was emailing from Chicago (or Cambridge, when he was visiting there), just in case we didn't already know his name and/or credentials. And once he's made sure that there's no semblance of anonymity left in the review process, most journals can't risk rejecting the piece because we can't afford to piss off somebody with such a prolific citation count. The whole thing really just amounts to an extortion; it's no coincidence that practically everything he submits gets published!]

Finally, from our correspondence with authors who we've gone to final review on, it usually appears that they've received very, very strong indications from other journals that they're no longer going through a truly blind review process there either.

In sum, I was all for blind review, but as I saw it there were three major obstacles:

1) When prominent authors do everything possible to slip in as many self-identifying references as possible, it's too hard to try to filter them all out for every article, and once you realize who the author is it can be hard to ignore that fact. And there's no way to get authors to stop doing this, because no journal has the guts to reject an otherwise-intriguing piece simply because an author fails to follow our blind review policies, and rejecting an article is the only leverage we have over authors. I don't see any way around this except to have some sort of centralized clearing house that is scrubbing all the pieces of self-identifying references before they get passed along to law reviews.

2) Once you allow journals to start giving exploding offers, and the expedite deadline doesn't leave us enough time to do a full and thorough review, often the best proxy we have for whether this is potentially a revolutionary article or just another crackpot is the author's reputation, and the institutional pressures for taking that into account are too strong to resist.

3) The sheer volume of submissions has reached such outrageous levels that we need some sort of screening mechanism, which will be either (a) author identity, or (b) expedite requests, which come up through lower journals which made their decisions based in part on – you guessed it – author identity. Even when the top journals do a genuinely blind review, well-known authors still get a tremendous leg up in the process.

If you really want blind review, I'm all for it, but good luck solving all those problems. In the meantime, the journals that claim to do a blind review actually make only a very feeble effort at it — and since we all know that all our peer journals which claim to be doing a blind review are cheating just as much as we are, we all continue to lie about blind review process and perpetuate this sham because it's what we need to do to compete. And the fact that so many authors work so hard to circumvent the blind review process indicates to me that all these glaring holes in the blind review system aren't really a very well-kept secret after all.

Posted by: anon 3 | May 20, 2008 1:02:35 AM

Why I am supposed to be insulted that a professor thinks that as a 2L I'm clueless about the broader arguments in the academy or less qualified to discuss the quality of a piece than somebody who has done extensive work in the field? That seems right to me---- I AM clueless. Do we want college students deciding if their professors get tenure? Stone Sweet sounds right to me. I'd take his class if I got the chance. (And anyway, why is that relevant to his comment?)

Posted by: another anon | May 19, 2008 10:44:02 PM

"Such whining - why would anyone submit a serious piece of scholarly research to a student edited law review? ... What is interesting to me, as a social scientist, is why a status obsessed law world would make students, however smart (but people who know next to nothing), their gate keepers. Publish in real journals."

Students on law journals arguably do a decent job of selecting and editing articles, and put in a good faith effort, without saying that they could be doing a better job. These kinds of incendiary remarks, taken in context, explain why Alec Stone Sweet is commonly known among by his initials - ASS. It also explains why ASS is one of the most unpopular professors at Yale. Three people, if even that many, showed up to enroll in his class this term, for example, according to well-placed sources.

Anonymous reviews are certainly preferred because the anonymous reviewer gets to totally trash the author without having his or her identity known (and there is a lot of unfair trashing going on in anonymous peer reviews). Harsh criticism, especially if unfair or unwarranted, is not pleasant, but that is what ASS, through the rhetoric and the substance of his comments, seems to support.

What is interesting to me, as a social scientist, is whether a professor, however smart, would publicly say such things about his students and still expect to be generally respected by them as a scholar and teacher, or as a person.

In any case, the argument seems to be that nobody should care what "clueless 2Ls" think. The law reviews are just a means of publication. A professor's article rises or falls on its merits and not on whether it is in the Yale Law Journal as opposed to the Gonzaga Law Review, or for that matter whether it is published as a book. To think otherwise is to hold that professors are themselves duped by the prestige of a particular journal. But are we implicitly saying that professors are regularly duped by these "clueless 2Ls"? By the very nature of this discussion, the answer seems to be yes. But that is the fault of the professors, not of the law reviews.

The more important question is whether professors, especially those on tenure committees, themselves are relying on the prestige of the law journals as a proxy without independently reading and analyzing the articles as they should be. To the extent that they are, they would be giving validity to the work of the law reviews. Once again, to the extent they are wrong, that is the fault of the professors, not the law reviews. This is especially because the professors themselves claim to be the best decision-makers in these matters.

The fact is that the academy benefits from the signals that law reviews provide, however attenuated professors might claim them to be. The fact is also that law reviews have very strong incentives to provide as good a signal as possible, and they do so at little cost to the community of professors. Even conceding that the signal is less than in "real journals", this is no reason to claim that law reviews are completely worthless for serious scholarship, or that students who work for these publications know "next to nothing".

Posted by: anon | May 19, 2008 10:16:42 PM

Such whining - why would anyone submit a serious piece of scholarly research to a student edited law review?

Alec, let me know when you've started up your faculty-edited general-interest law review that has the resume cachet of the top student-edited law reviews, and I'll submit to it.

Posted by: Bruce Boyden | May 19, 2008 4:29:28 PM

Anon is right, it would seem ... people adapt to the system that governs. In so many ways, the system makes legal research quite parochial, even while the schools champion, or pretend to champion, "inter-disciplinarity."

Posted by: Al;ec Stone Sweet | May 18, 2008 5:18:54 AM


The problem is that hiring and tenure committees are obsessed with the student-run journals, so someone entering into the market (or trying to obtain tenure or "lateral up") is forced to care what clueless 2Ls think.

That someone is personally affronted by the fact that some clueless articles editor passed on his work is, of course, silly; but it's entirely reasonable to try to appease 2Ls so long as the persons in powers are obsessed with 2Ls' decisions.

Posted by: anon | May 18, 2008 3:34:41 AM

I just went to the YLJ homepage and clicked on "forthcoming." Upcoming articles include works by 2 Yale professors, a Boalt professor, an Emory professor, a professor at Queen's college in Canada, and a professor at Western New England School of Law. So whatever their review policy may be, it doesn't seem to be to throw the work in the trash of every person who isn't a professor at a top 14 school.

Dave: "There are costs to it as well, such as the very real risk that some well-meaning but overworked and underinformed 2L will summarily reject a really good article."

What's interesting to me is that most of the comments here seem to presume that the goal of the YLJ is to publish every really good article that comes along, and correspondingly that NOT getting published in the YLJ is an affront to otherwise good articles. Why give students this much power over you?

There are a lot of flaws with student-edited law journals, but one real benefit (and one real detriment) to them is that there are hundreds out there. If YLJ passes on an article, then there's always Harvard, Stanford, Columbia, NYU, California, Minnesota, and dozens of others that publish some reliably good scholarship every year. It's not true that the YLJ publishes the 10 best law review articles in the country every year, but it is true that the 10 best law review articles in the country generally find good homes in good journals somewhere. So what's the fuss?

I agree with Alec Stone Sweet that student law journals are a bit silly to begin with, and it's true that a lot of utter dreck slips through just because it's got a Harvard/Yale resume behind it, but how many top-quality articles of the last 5 years can you name that got rejected by every top journal in the country?

The system isn't perfect, but generally the cream manages to rise to, or at least near, the top.

Posted by: Mark | May 18, 2008 3:15:31 AM

Such whining - why would anyone submit a serious piece of scholarly research to a student edited law review? I can think of a couple of reasons, but none of them are good.

In any case, this year the YLJ formally sent to each of us on the faculty an email requesting us to submit papers for publicaiton, making it clear that we had priority.

What is interesting to me, as a social scientist, is why a status obsessed law world would make students, however smart (but people who know next to nothing), their gate keepers.

Publish in real journals.

Posted by: Alec Stone Sweet | May 17, 2008 5:36:57 PM

I don't think this is *formally* worse than many peer-reviewed journals in non-law disciplines, where the editor gets first look at the piece, with name attached, and can reject it before it gets to peer review. The differences, and why this is worse (on one point) and potentially worse (on another) are twofold: 1) the blind reviewers are students (definitely worse), and 2) From this discussion, I get the sense that the editor who sees the name exercises less restraint and more of an active role than most editors of peer-reviewed journals do, rather than deferring more to the blind reviewers (potentially worse). [Typo indicated by comment author fixed-JC]

Posted by: Paul Gowder | May 17, 2008 1:02:36 PM

The first read would seem to me the most important to be anonymous. It's hard to imagine an article making it past the initial read ever if the editor is skeptical of the quality to begin with because of the identity of the author. And Joe, I completely disagree with your point for that reason. The whole point of blind review is to prevent that implicit bias in a reader. It's at least as likely that some articles don't make it to committee because they get a skeptical first read based on the identity of the author while other articles get a beneficial first read based on the identity of the author. And I don't think articles editors need to know the identities of the authors as another former YLJ editor suggests. A preemption check could be done by members who could know the identity of the author, and the articles editor doesn't need to know. Likewise, I'm sure that a mechanism for review by faculty could be accomplished without involving the articles editors by using lower level editors, members, or support staff. I don't feel overly strongly about a blind process, but I wouldn't call Yale's process blind. My law review wasn't any better, but it didn't claim to have a blind process, either.

Posted by: Marcia | May 16, 2008 11:36:43 PM

This shouldn't be a big deal. If your piece doesn't make it to committee (at which point it receives an anonymous review), it very likely wasn't going to be published in the journal anyhow, based strictly on quality and subject matter.

Posted by: joe | May 16, 2008 8:30:36 PM

Funny -- I always wondered how it was that journals with supposedly "blind" review processes always ended up publishing articles from the same type of authors. I guess this answers the question; the review is not blind.

Posted by: author | May 16, 2008 5:44:51 PM

Assuming the process summarized above is accurate (and that jibes with my own foggy memory), then I think the YLJ's actual review policy is: "All manuscripts that are accepted by the Journal receive an anonymous review, without regard to the author's name, institutional affiliation, prior publications, or pending publication offers."

Posted by: Bruce Boyden | May 16, 2008 12:07:13 PM

AndyK: For the reasons TJ explained, I do think something important is added by first-stage blind review, even if later stages eschew anonymity. There are costs to it as well, such as the very real risk that some well-meaning but overworked and underinformed 2L will summarily reject a really good article.

Chris: I think there are multiple plausible readings of the YLJ policy. My comment was meant to express what "anonymity" actually means based on my experience at one journal and talking to eds at others. There seems to be little harm, though, in expressing the blind-review policies to most accurately reflect what they actually entail (e.g., blind first-round review only) to avoid any confusion.

Posted by: Dave | May 16, 2008 2:46:36 AM

Dave: "I don't think the anonymity policy at any law review means 'no one on staff ever knows the identity of a submission's author'. I think it means 'we make a good faith effort to assure that the editors reading the article at at least one stage do not know its author'."

Yale's policy certainly suggests that no one in the decisionmaking process about whether to accept a piece knows the identity of a submission's author.

Posted by: Chris | May 15, 2008 10:23:24 PM

I don't mean to single out Yale here. This is certainly no more offensive than the run-of-the-mill in my experience. But let's face facts. Being the only student-edited literature in academia, law reviews purport to carry a peculiar burden to begin with. They supposedly elevate the power of the argument over everything else. The trouble, of course, is that most law students aren't well positioned in any sense to judge that argumentative power. Thus, they necessarily resort to heuristics -- and most of us accept all this, certainly. There's a certain egalitarianism and transparency to the arrangement, assuming it all approximates the merits. My suspicion the longer I'm in this business, though, is that the heuristics adopted by editors have too little to do with accuracy and too much to do with credentials. I might be rebutted with "sour grapes!" I admit (I've never had a piece placed in the Yales of the world). But Jack's original post was arguably serious in its motive. Since most legal writers don't have labs or other institutions that reviewers must trust in order to judge the overall work product (as in many science fields), what real value is there in using a CV to judge a piece in this discipline?

Posted by: Jamison Colburn | May 15, 2008 10:17:59 PM

AndyK, it helps a lot if the initial screen is blind. Put it this way, if you were applying for a law firm job or clerkship, would you perfer:

1. An anonymous screen of applicants based on a writing sample and interview, and only after the interview does the employer find out your law school; or

2. A pre-screen based on your law school, that cuts out 95% of applicants based on a 5 second review consisting of "Not Harvard or Yale--recycle bin"; cutting out another 4% based on "not top ten percent" and then interviewing the ten people left?

Posted by: TJ | May 15, 2008 9:09:01 PM

Dave: Does that help? If the initial phase isn't blind, the remaining steps may include or exclude pieces based upon the identity of the author. The same is true no matter where you inject the knowledge of the author. There's a good argument that "reviews all manuscripts anonymously" is literally true, but it flies in the face of the subtext. YLJ could (1) review all manuscripts anonymously, and then (2) start from scratch and review all manuscripts on a point system, giving points to people and institutions they liked. Nevertheless the implication of the statement is that any Joe Legal off the street could write a paper and have it judged on an even playing field with all the others, which simply isn't the case. The non-blind policy doesn't bother me, but it's not a blind policy.

Posted by: AndyK | May 15, 2008 7:55:02 PM

I don't think the anonymity policy at any law review means "no one on staff ever knows the identity of a submission's author". I think it means "we make a good faith effort to assure that the editors reading the article at at least one stage do not know its author".

When I was on a different law journal, we approached this issue by having the articles eds strip out identifying information (such as a CV, for example) before turning the piece over to the ed who was doing the first-stage read. Eventually, the identity of the author would be disclosed, but having done many first-round reads myself, I rarely knew who the author was and thought our blind review policy worked pretty well.

Posted by: Dave | May 15, 2008 5:40:20 PM

AFYLJE- that's fine- those are all worth-while points. But they don't go to the fact that the claim that "The Journal reviews all manuscripts anonymously" is false, since in fact the majority of the articles are apparently not reviewed anonymously or with any serious attempt to do so. Many peer-reviewed journals also have editors make first-cut decisions that are not done blind, but they usually state this in their review policy. To claim that all submissions are reviewed anonymously when this isn't in fact done is dishonest. All that needs to be done is to put up a truthful statement of how the review process is done.

Posted by: matt | May 15, 2008 5:29:45 PM

Let's be fair: it's pretty hard to run an actual articles committee without *someone* knowing who the author is. When I was there, YLJ would frequently seek faculty consults on pieces, and you can't ask the author to consult on her own piece (or that of a close colleague). Nor can you effectively check for preemption, including self-preemption, without having an idea of what else the author's written. (Maybe this means they're deciding with "regard" to "past publications," but that's not how most people would understand the phrase.)

Sometimes it's impossible to avoid learning who the author is -- if the piece has been circulated on SSRN, if it's the conclusion to a multi-part series, etc. -- but in my experience there was a real effort to assess pieces on their merits alone.

Posted by: Another former YLJ editor | May 15, 2008 5:23:15 PM

The "blind" reading policies touted by most journals (Yale included, it seems) have always been a sham. Unless the process is blind up to and including the final decision, it is dissembling to call it "blind" at all. The fact that the first step in Yale's process is not blind makes all it the worse given the chief roadblock in submitting more generally: having anyone at all read and seriously consider your piece.

Posted by: Jamison Colburn | May 15, 2008 4:55:51 PM

So it seems that the claim that the YLJ "reviews all manuscripts anonymously" is false, if the practice is in fact what the comment above claims it is. In fact, only a small percentage of articles are reviewed anonymously, and even these less than fully so. It would be good to change the claim, since as stated (assuming the comment above is correct) it is clearly false.

Posted by: matt | May 15, 2008 3:29:20 PM

YLJ uses, more or less, a 3-step process. Every submission is read first by an Articles Editor. That AE knows the identity of the submission's author. Most submissions are rejected at this stage. If the AE likes it, it will get a "mini-float" to a subgroup of the Articles Committee. This review is, in fact, blind (except that, of course, the AE who originally reviewed the piece still knows the identity of the author). If the subgroup likes it, then it gets floated to the full Articles Committee, which is, again, blind.

Posted by: Former YLJ Editor | May 15, 2008 3:19:11 PM

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