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Wednesday, February 13, 2013

Scholastica’s Diversity Question

Over at Josh Blackman’s blog, he has an interesting discussion of Scholastica’s “diversity question.”   Scholastica, for the six of you who do not yet know it, is the new entrant in the field of law review submission management, a direct competitor to Expresso.  Apparently, when submitting an article, Scholastica asks for information, on an optional basis, about the author’s gender, race, sexual orientation, and “economic and hardship diversity.”  It notes on this page that “[s]ome journals request additional data from authors to aid in their diversity initiatives.”  Presumably, this aids some journals in openly taking into account diversity factors in deciding whether to extend an offer of publication.  Josh has a nice screen shot so you can see exactly what I am talking about.  Dave Hoffman also mentions this over at Concurring Opinions.

I share Josh’s and Dave’s concern over this development but not their surprise.  I had always assumed that in our bizarro world of decidedly non-blind law review submissions, some articles editors occasionally took race, gender, and other diversity factors into account.  These factors can sometimes be discerned from an author’s CV, which is routinely submitted along with the article.  But if not, a photo of the author is usually just a click away.  I am not in favor of taking into account any factor unrelated to the quality of an article.  However, I don’t find using diversity any more or less offensive than using any other arbitrary factor, such as where the author teaches.  Indeed, I would prefer that editors openly admit that they use such considerations rather than trying to keep that fact hidden.

Posted by Michael J.Z. Mannheimer on February 13, 2013 at 09:41 PM | Permalink


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Don't you all have lesson plans to work on?

Posted by: Anon | Feb 17, 2013 4:33:01 PM

Gwen, same question as I gave to Max. If that is the motivation, why not just give the bump to "newer scholars who have a shorter list of pubs" DIRECTLY? They have our CVs. They don't need to look at race and sex to give the bump if that is what they are concerned about.

Posted by: anonprof | Feb 16, 2013 6:55:12 PM

Is it possible that the effect of this type of "affirmative action" just results in improving outcomes for junior faculty? As Kaimipono Wenger implies in her post at CoOp, letterhead bias and using past pubs as a proxy may benefit scholars not so much because they are white and male, but because they've been in the academy for decades. Providing a bump based on race/gender/ethnicity may in practice mean a bump for newer scholars who have a shorter list of pubs (and to whom rank of journal may actually matter more than it does for those with tenure).

Posted by: gwen stefani | Feb 16, 2013 4:49:20 PM

Max, no, I'm not assuming that at all. Perhaps law reviews also have some kind of across-the-board rule to favor authors from low ranked schools. But, if so, then that across-the-board rule will presumably cure the letterhead bias. What justification is left, then, for giving race-based AA preferences on top of that across-the-board rule?

Posted by: anonprof | Feb 15, 2013 11:47:54 PM

AnonProf, I think you're assuming that straight white males at low-ranked schools wouldn't also get some sort of extra consideration as compared to a straight white male at a top school.

Posted by: Max | Feb 15, 2013 1:01:38 PM

Of course it wouldn't matter which journal printed what or why, if the rest of us determined the quality of an article by reading the piece rather than the cite. Will we ever outgrow our embarrassing obsession with placements?

Thirteen years now into this job, I think the best solution might be for each school to publish the work of its own faculty (incl its own faculty's symposia). It would eliminate the commercial intermediaries like espresso and scholastica from making a profit off of our mostly irrational behavior. It would put professors in closer contact with our own students. It would quiet all of those with complaints about the submission and selection processes. It would align the students' and professors' interests in having a quality home journal. There would be problems--some journals may have too much/little to print, would students have/exercise any quality control, what about specialty journals... But I think the basic idea may be the way to go.

Posted by: Thom | Feb 15, 2013 9:16:51 AM

So far as I understand, based on Publius and the Cal EIC's responses, the law reviews' defense of considering race and other demographic factors is that they don't do blind review and thus are biased by letterhead, and then they notice that letterhead bias means that they accept articles from too many straight white males who dominate top 10 schools, and so they then do affirmative action to counteract that bias. This has to be among the most ridiculous arguments I have ever heard. First, the choice to be biased by letterhead is entirely in the law review's own control, invoking this as justification is the very definition of chutzpah. Second, of course this neither screws the straight white males at top 10 schools, who still get the benefit of letterhead bias, nor the minority gay females at lower ranked schools, who now benefit from AA. The only people who are completely screwed are the straight white males at lower ranked schools. I don't see particularly how two wrongs make a right here. Third, even "in a world where blind-review is not the rule," opposing the practice of considering author race in the mix is hardly a matter of "chutzpah or a willful blindness." Rather, I don't see how anyone who argues that law reviews should even begin to reduce (not abolish, reduce) their reliance on letterhead can possibly turn around and argue they should consider race.

Posted by: anonprof | Feb 15, 2013 5:08:51 AM

Here's an update from Josh Blackman: http://joshblackman.com/blog/2013/02/14/scholastica-updates-demographic-feature-only-california-and-nyu-request-information/

Posted by: Michael J.Z. Mannheimer | Feb 15, 2013 12:09:52 AM

I am a former editor of a law review that discussed the demographics of the authors it published. I did not take part in article selection, but I can readily imagine that if I had been, I would not have objected to considering demographic information. I will attempt to articulate why, informed by my impressions of (and not necessarily accurately reflective of) how that information actually came into play on my journal.

It's boring and awkward when you just keep pumping out stuff from known entities (not always, but close to always, straight white guys at the top 25 or 50 schools). You start to wonder, for example, "Why haven't we published anything by a woman author in the past 3 years? What's up with that?" So you start keeping an eye out to see if women aren't submitting, if they're submitting but not making it past review, etc. After a time, you come across a piece by a woman author that looks pretty good. Problem is, you've only got one slot left in this submission cycle, and there's another piece being considered for it. That other piece is by a well-established straight white male at a top ten school. Both pieces seem equally good, although they're both about obscure niches in two very different areas of the law, neither of which anyone on the editorial staff cares a fig about, so it's hard to really say whether one is "better" than the other.

So, do you go with the established name because it will look good on your journal? Or do you break your streak by going with the woman for once? (Or do you do something else entirely, although I'm not sure what?) Would it matter if I told you that the woman was also gay, of color, and a new, young professor at a low-ranked school to whom placement in your journal would be a much bigger deal than it would be to the established, tenured, top-ten straight white man?

I believe either choice would be reasonable, perhaps even without the considerations I added in the previous sentence. And I think it is unreasonable for people like Prof. Hoffman to be offended that a law review would want to at least open itself to the possibility of making that choice, at least in a world where blind-review is not the rule. (I am open to arguments that blind review would be the superior choice overall.) To be offended requires either chutzpah or a willful blindness to the overall demographics of the legal academy and its sources of replenishment.

I do not follow this blog regularly and likely will not be back to reply any responses to this comment.

Posted by: Publius | Feb 14, 2013 9:24:54 PM

An editor at a top 10 journal explicitly told me that editors on his journal take race into account in making decisions during the submission process; the practice is common and is a tradition there. Since I'm writing anonymously, I will provide neither name of journal nor editor.

Posted by: AnonProf | Feb 14, 2013 7:14:01 PM

For what it's worth, twice I've had friends at other schools send an e-mail to their respective law journals recommending my work, in order to counteract the effects of letterhead bias. Neither time did it work -- the journals in question either dinged me or didn't get back to me in time. Both times I ended up with a placement as good as or better than those journals. Go figure.

Posted by: Michael J.Z. Mannheimer | Feb 14, 2013 10:47:15 AM

If the demographic information was only being used in the way that Sam describes, I would not object SO strongly, though I would still have several objections. But, first, to challenge Sam's factual assertion: It is not a plausible reading of what the Cal editor said, once we account for the context. Josh specifically said that he would infer that race was being used in article selection unless the editor denied it. The editor did not deny it. Since this is not a courtroom and we are not bound by the Fifth Amendment, I'm going to draw an adverse inference.

Back to the main topic, yes, I can agree that is a value to collecting data in order to figure out the extent to which unconscious bias or some other factor is disproportionately screening out particular groups. But, even so, here are the objections: (1) there is no possible way we can be sure that the editors aren't using the information for affirmative action purposes, and they have an obvious incentive to lie about it in the future given the furor this is generating, (2) they ask for sexual orientation, which is not obvious from the internet, (3) explicitly asking for the info, rather than surreptitiously looking it up on the internet, if the practice become normalized and unchallenged, creates a norm in favor of affirmative action, and (4) while I agree that it is important to figure out whether particular groups are being disproportionately screened out, I suspect that I have very different preferences regarding the solution if that proves the case than what editors from the People's Republic of Berkeley would do with such a finding. In other words, there is a suspicion that this is not a good faith inquiry into truth but simply a strategic move to lay the groundwork for affirmative action later, even if not immediately.

Posted by: anonprof | Feb 14, 2013 10:09:26 AM

On the narrow question that prompted this post, I think people are perhaps jumping to conclusions about the reasons why these law reviews ask for demographic information. Everybody seems to recognize that it's easy to figure out an author's race and gender from the Google, if not from the CV. So at the time a law review is making a publication decision, editors who are so inclined can base the decision in part on race or gender without asking every submitting author for that information.

To me, the most plausible reason why a law review would ask for this kind of information would therefore not be to help make particular article-selection decisions but to help assess the fairness of its process. If editors are concerned about (explicit or implicit) bias screening out articles by members of particular demographic groups, it's hard to assess the validity of those concerns without knowing something about the composition of the pool of authors submitting articles. Using this kind of "applicant flow" data can help a law review that is so inclined determine: (a) whether its process is in fact disproportionately screening out members of particular groups; (b) if so, where in the process the screening-out is happening; and (c) if that can be determined, whether there is a good "merit-based" reason for the screening to be happening the way it is at that point in the process or whether there are ways to serve merit equally well without the disproportionate screening out.

This is basically how the UC Davis editors described their use of the demographic data to Josh Blackman, and I think it is a plausible reading of what the Cal editor said (though I agree the editor was too vague). And -- at least if one is concerned that the law-review article selection process incorporates biases against particular race or gender groups, a point on which I am agnostic -- I don't think it's really objectionable. If this is the only way the requested demographic information is used, do folks still object so strongly?

Posted by: Sam Bagenstos | Feb 14, 2013 8:34:41 AM


To your last point: It's not what we want; it's what the students want. I think that as long as a law review claims to be "student edited" then it should be that way. With that said, I think that over the past few years some law reviews are making laudable efforts to improve article quality by, for example, seeking peer reviews from professors inside or outside of the law school. But again, this movement is coming from the students.

Posted by: T25lawprof | Feb 14, 2013 8:29:03 AM

Thanks, T25. I appreciate the last point you make. I guess I would hope that a professor would only make a recommendation when he or she had read the article, thought it was of high quality, and wanted to flag it to his or her students who were presently wading through the crush of the Feb-March onslaught. I do not think it is necessary that the article be in the professor's particular specialty area in order to make a recommendation like this. We all read many law review articles, and often we can have a strong sense of the article's quality even if it is not right in our research wheelhouse. But maybe this is not the way recommendations generally get made (I confess I'm too new at this really to know). That would surprise me, but I admit the possibility.

On the other issue of intelligence or smarts, I do not dispute that law school students are smart. They are. But smarts are only part of the equation in selecting a high quality article. And it may be that smarts are not enough alone to have the sort of selection process that we might really want.

Posted by: Marc DeGirolami | Feb 14, 2013 8:07:02 AM


Thanks for the comment but I disagree. I think the students on law review at GW are smart enough to pick good articles and fill a volume on their own w/o faculty interference. Again, if the students ASK for input that's a different story. Also: Why are you sure that the vast majority of recommendations from professors are made on the merits? For example, when folks have asked me to recommend articles to my law review (which I've never done!), it's usually in a specialty other than mine. So what would I say to the LR staff? "X is a friend of mine (or I met X at a conference, etc.) and I think he/she is a rising star" or something along those lines? I also would not expect professors to recommend articles from folks that they do not like.

Posted by: T25lawprof | Feb 14, 2013 7:59:23 AM

It isn't necessary for Orin to make a recommendation when he sees fit, but I think it's an excellent practice (and not just for Orin!). Because of the nature of the process -- an avalanche of submissions in precisely the same teeny micro-window, the time pressures on students, their comparative lack of expertise to assess the quality of the work (by comparison, that is, to law professors), a kind of mad scramble hyperdash to "fill the volume" or at least get a sufficient number of articles into it quickly, and many other weird quirks of the system -- "let[ting] the process work itself out" is often not remotely optimal *if* your interest is in maximizing the quality of the articles selected (if you have other interests, like student independence or something else, then the process is great). Recommendations from professors (if made on the merits, as surely the vast majority are) can be ways to mitigate some of the oddball and, frankly, not particularly functional qualities of the process.

Posted by: Marc DeGirolami | Feb 14, 2013 7:48:00 AM


In response to your question to Anon Prof, I think the end result is the same: your influence has "pulled the article out of the pile" so to speak. Here's a question: Why is it necessary for you to send an email down to the law review in the first place? Why not just let the process work w/o external influences from faculty and let folks earn their placements based on merit? (Of course, if the law review ASKS your opinion about a piece, that's a different story.)

Posted by: T25lawprof | Feb 14, 2013 7:07:04 AM

Michael, you wrote, "I don’t find using diversity any more or less offensive than using any other arbitrary factor, such as where the author teaches."

Honest question: Does where the author teaches really not provide *any* more information about the quality of the article than the author's race? I think we can all agree letterhead is a pretty weak proxy for quality, but "arbitrary" seems too strong. But I'm new at this (and come from a law review that did truly blind review (most of the time)), so maybe I'm wrong on the facts.

Posted by: anon rookie | Feb 14, 2013 3:57:20 AM

Anon Prof, maybe the difference is what it means to "walk down" an article. When I know of an article that is unusually strong that was submitted to the law review where I teach, I have sometimes sent an e-mail to the articles editors letting them know of the article and recommending it. Is that "walking down" the article, whether prompted by by own sense the article is good or from a request by the author for me to consider doing that? Or do are you referring to recommending an article to editors on false pretenses -- saying it's good when you don't know if the article is any good or actually think it isn't?

Posted by: Orin Kerr | Feb 14, 2013 3:34:56 AM

Orin, as you probably know, the ability to have the sort of evidence you like would be very hard for a practice that occurs quietly (which is why Washington v. Davis makes equal protection claims so hard to make out). Connections are used in all sorts of ways, from walking down the hall (which I have been asked to do, friends and colleagues have been asked to do, and others have written about in blog postings). Other methods include journals selecting articles by inviting people to write pieces (with faculty members suggesting who to invite instead of an open call for proposals). How widespread? Who knows, but it would be dishonest to pretend it does not happen. Only white guys? No, women and minorities are capable of it too, but it those who are well connected who tend to know the "tricks" of how the game is played, and only in more recent years are women and minorities getting in on that game (I also did not use the phrase white men -- there are plenty without old boy connections, me being one of those. But as a group we still are more likely to).

As I said, my broader point is not to defend the demographics -- I am not a fan of it myself. I just don't think we should pretend that the process is truly merit based now. I guess I just find it kind of funny/sad that it is the demographic data collecting that suddenly creates the fuss (with such statements as NYU will not take articles from straight white males) when merit went out the door long ago.

Vapentine, I hope you don't walk it down or have yours walked down. Your placements may not be as high as you might like them to be but 10 years later you can look back knowing you earned those placements.

Posted by: Anon Prof | Feb 14, 2013 3:08:04 AM

@Anon Prof, I am unconvinced that the practice of "walking articles down the hall" is widespread. As a very junior person, I am for the first time in a position to be asked to do so and/or to ask others to do so, and have been trying to make up my own mind about my comfort with either. I get the impression that many people frown on the practice as unethical and others just don't do it. Interested to hear from others, of course, as my sample size is small. There is some related commentary on an old PrawfsBlawg thread about publishing in the law review of one's own school.

Posted by: vapentine | Feb 14, 2013 2:28:07 AM

Anon Prof, what evidence you have that "many people" use connections and that the people who use unfair connections tend to be white men? That's a provocative claim, but I'd be curious what support you have for it.

Posted by: Orin Kerr | Feb 14, 2013 2:11:10 AM

I don't want to defend the demographic data collection but I do find all the faux angst on this and other blogs that this is replacing merit based selection a bit ironic. As a "purist" who simply submits articles and hopes for the best, I am disadvantaged as compared to the many people who have friends at other schools "walk down" their articles to their law review editors. So I feel like this is a bit like the affirmative action debate generally: critics talk about the small efforts to help minorities, but not all of the "affirmative action" for those in the majority, such as preferences for kids of alumni, connections, etc.

I would love nothing more than to have a pure merit system, but I would not pretend we have anything close to one now. I doubt the demographics will make us move closer to merit, but I am not persuaded that it is going to make things significantly worse than they already are. And if things are not going to be decided purely on merit, I suppose why not give an edge to diversity, especially if that comes at the expense of papers walked down to the law review office (a practice that I suspect is less likely to be done or on behalf of minority faculty and female faculty).

Posted by: Anon Prof | Feb 14, 2013 1:25:55 AM

It's interesting that the concern/skepticism/gossip is mostly targeted to law reviews who happen to have female and/or minority leadership presently. And on that note, WHO has decided that NYU Law Review's articles have been of "patchier quality"? What is the standard and who is doing the judging?

Posted by: profanon | Feb 14, 2013 1:11:40 AM

I wouldn't trust law reviews to be able to avoid making additionally prejudicial and biased readings of articles based on demographic information, much less successfully implement a kind of affirmative action program.

Law schools practice affirmative action because they don't want to seem elitist, but rather open to people of all backgrounds.

Law reviews on the other hand very much want to cultivate an elitist and prestige driven approach to author selection and want to appear highly exclusive - hence their discrimination against professors from low ranked schools and, even moreso, students and practitioners.

Implicit bias is a huge problem in academia and nowhere more than law reviews edited by non-experts is there a greater tendency to reward superficially seeming smart over genuinely novel contributions. Such superficial indicators of "authority" and competence as having a male anglo-saxon name already probably help certain authors significantly at others expense.

If the bias against women and minorities in academia wasn't bad enough with editors of peer reviewed journals, lots of white law students have particular implicit (or even knowing) resentment against minorities in the legal profession due to law school affirmative action policies benefitting underrepresented racial minority candidates...

Scholastia offers a vastly more useful option which is triple blind review - blocking the authors name from the editors as well as reviewers. I'd like to see that implemented more in law reviews (maybe in exchange law reviews could demand exclusive submission to keep their work load down since not being able to use blatantly prejudicial reviewing methods would be more time consuming).

Posted by: Anon skeptic | Feb 13, 2013 11:11:36 PM

See this comment from last August:


This subject probably deserves its own separate thread, but I've heard that several top journals, most notably NYU, have begun weighing author "diversity" more heavily than ever before in making their publication decisions. At NYU, the gossip is that straight white male authors pretty much can't get their articles accepted this year, and that the pieces NYU has recently taken have been of patchier quality than usual. Discussion of the author's identity apparently overshadows discussion of the article's substantive merits at final NYU committee meetings.

Also interestingly, one of the reasons that certain journals are migrating to Scholastica is reportedly that the site asks authors to include demographic information (race, gender, and sexual orientation), as well as a statement on "economic hardship and diversity," before submitting their articles. That way journals can easily search or screen articles based on the authors' demographic attributes.

I find these developments very disturbing -- and entirely at odds with the other recent law review trend toward author anonymity and peer review -- and I'm surprised they haven't attracted more attention within the legal academy.

Posted by: bravenewworld | Aug 29, 2012 5:38:29 PM

Posted by: Not just Cal | Feb 13, 2013 10:35:58 PM

Thanks for the post. I agree that journals probably do this anyway (I suspect this is why the Cal Law Rev's EIC gave me such obtuse answers). Asking for it on Scholastica makes it explicit, but a simple google search will reveal most of the desired info. I would prefer if this process was more open. Asking for it on Scholastica certainly puts people on notice about it.

Posted by: Josh Blackman | Feb 13, 2013 10:10:01 PM

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