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Monday, May 20, 2019

"Sponsored" Symposia: A Possible Trend--and Cause for Concern--in Elite Flagship Law Review Publishing

I have been holding on to this blog post for a while, for various and mostly obvious reasons. But when a potential trend arises that deserves to be noted and discussed, and some thought given to future policies, surely someone ought to call attention to it. You can be sure that I will do my best to be careful and descriptive, note any instances in which I lack information, and add the usual layers of caveats, although mostly at the end, not the beginning. So my warning (but not apology) in advance about any entirely typical excessive length. 

In the past year, I have noticed some top-15 law reviews (by the usual rough and customary measures) doing something I have rarely if ever seen at the elite main or flagship law reviews. There are three such examples I'm aware of--three being, by journalistic tradition, enough to count as a "trend." The trend, if it is that, hardly portends the end of the world. (Neither, by the same token, would the utter disappearance of the top ten law reviews be the end of the world--but I don't doubt that would be noted and discussed.) But its importance and possible impact is larger than it might appear at first, and does have some distinctly disquieting aspects. I am less concerned with criticizing it (although I do just that) than I am with drawing it to our attention, calling for us to think about it, and suggesting that law review faculty advisors and law school administrators ought to be aware and proactive about it rather than passive or indifferent. 

The trend, roughly, is this: A number of elite flagship law reviews have been giving over issues of their volume to symposia or special issues that are 1) sponsored by or with particular groups; 2) generally, the groups have particular positions, agendas, leanings, or however you want to describe them; 3) the topic or topics of the symposium reflect that position; and 4) it seems pretty clearly reflected too in the list of speakers.

Let me describe the examples I have in mind. I did not reach out to anyone involved, for better or worse. I'm simply basing my description on the public record, which seems entirely fair. But I would be very glad to learn more, and it might change my views or alleviate my concerns. Where I offer an opinion, I make that clear and take full responsibility for it. Of course I acknowledge that people may disagree with my own assessment. I also acknowledge that, although we are talking about unusually privileged young adults who should not be immune from criticism or treated as if they should never be publicly discussed--not if we are to treat them with genuine respect, anyway--this post does involve law students. I'll save the usual list of caveats until later, but you can take it as a given that nothing here is offered in contempt or disrespect. Indeed, my primary concern is not with the students themselves but with the advice they're getting (or not getting), or pressures they're facing, from tenured and influential law professors, and with the role of law review faculty advisors and law school administrators.

Here are the three examples:

1) The November 2018 Columbia Law Review is a symposium issue titled A First Amendment For All?: Free Expression in An Age of Inequality. The symposium was co-sponsored by the Knight First Amendment Institute at Columbia and the Center for Constitutional Governance. I know very little about the latter center, although it looks general enough in mission and affiliated faculty based on its web site. I do roughly follow the work and publications of the former, which in my opinion does tend to have a particular focus and orientation. Readers can judge for themselves, but I think it is fair to say that the symposium as a whole had a thesis and an underlying belief in and desire to advance and promote that thesis. This is not, by a long shot, a knock on the quality of the articles, including those that share the thesis entirely. And there are two, by Leslie Kendrick and Louis Michael Seidman, that I think are reasonably and commendably skeptical about the value of the project (although I have long wondered whether or not the symposium organizers and other participants were or weren't truly delighted to find Seidman more or less outflanking everyone on the left, rather than from a position of mere progressivism, and from a posture of skepticism about shoehorning every political project into something involving judicial review). The listed participants at the symposium, including the moderators (I have also wondered whether they asked Philip Hamburger to participate or moderate or not, given his recent scholarly focus on speech and religion issues), seem, from my general knowledge, mostly sympathetic to the basic thesis. The print articles don't appear to feature any strong skeptics of the basic thesis, champions of a soi-disant "First Amendment Lochnerism" or strong civil libertarianism, or other genuinely heterodox (in this context) views. 

2) The 2019 UCLA Law Review Symposium, titled Latinx Communities, Race, and the Criminal Justice System, is listed as co-sponsored by the Law Review and "BruinX, Office of Equity, Diversity and Inclusion." (UCLA community members are free to correct me, but I believe BruinX is the research and development arm of UCLA's Office of Equity, Diversity and Inclusion. I can't tell from the comma whether one or both institutions were involved, although I suspect it's the former.) The subjects covered at the symposium are not in my area, so I hesitate to offer descriptions or assessments of how and whether other or different perspectives were, were not, or could have been a part of the symposium. I assume the symposium will result in a print issue, but it has not yet, so I can't say for sure. Nor can I say what its contents will be if it does land in print. 

3) The 2019 Texas Law Review Symposium, Reclaiming Constitutional Norms, is listed as having been co-sponsored by the American Constitution Society. As is, I gather, usual for ACS events, the speakers listed for each panel feature (from my outside reading and estimation, at least) several speakers likely to line up roughly on one side of an issue and/or be ACS members or regulars and one person likely to offer a different perspective. (Of course there may be differences between those who are roughly on the same side of an issue; and conversely, of course there is no guarantee that everyone invited to offer a different perspective was as "different" as one could have asked for or actually did offer a heterodox perspective on the issue. For example, I don't know whether anyone was invited to participate who is skeptical of the very idea of constitutional "norms," or at least critical of the sudden popularity of this concept and of the potentially fair-weather use to which it is currently being put.) Despite my respect for the organizers and for the commendable fact of some obvious effort to include different views here, I suppose I find this symposium especially unusual in that the ACS has its own publications, including the Harvard Law & Policy Review. Given that the ACS's mission is openly political or ideological or however one wants to describe it--and one can definitely applaud it for its candor about this--and that it has its own publications, it is perhaps especially odd to see it partnering with the prestigious general-interest law review of a large public university law school. I assume that a symposium issue of the law review will result, but again I can't say for sure; nor do I know what the contents of such an issue would be. 

If there are other recent examples of sponsored or co-sponsored symposium issues of this sort in what I will call generally elite flagship law reviews (as opposed to secondary journals at elite schools), do speak up and let me know. I think three is enough to go on, in any event, in suggesting that there are various questions we should be asking about this and various legitimate concerns we might have about it. The questions and concerns include:

1) Is this new? I assume it can't be completely new or unprecedented. But I am certainly a regular reader or browser of our legal periodicals, and it does seem unusual to me to have groups with a fairly strong, identifiable position, mission, or ideology serving as "co-sponsors" of symposia in flagship law reviews, let alone elite flagship law reviews. Again, I'm happy to be corrected. At a minimum, though, even if there are scattered examples, it is surely unusual, and the recent number of elite flagship law reviews engaged in this practice in a short period of time seems doubly worth noticing.

2) Have others noticed this? I can answer this in part: Yes, I've spoken to other law professors who have noticed this, thought it unusual, and had concerns about it, although they generally knew of only one or two and not all three examples. But I haven't seen public discussion of it anywhere. (I am no longer on That Social Media Site, so I can't say whether any discussion popped up there.) I understand that discussions of this sort sometimes happen privately, but I don't consider private inside-baseball-type discussions enough (or especially healthy).

3) Is there a reason for it? I prefer not to speculate on this point, and certainly not to speculate in pre- or over-determined directions. Obviously one could ask whether it is consistent with ideological views among (some) contemporary elite law students, but that seems insufficient; there were plenty of politically oriented students running elite law reviews in the past, but they did not often give over whole issues to particular, and partial, groups and viewpoints. One might ask whether it signals a generational change, or a general change, of view about the purposes of scholarship or the trusteeship of scholarly institutions (including elite law schools and their main law reviews), whether among students or among faculty and/or faculty advisors. One might ask whether it signals an emerging strategic approach (or, in a different strategic sense, a justification for continued funding) on the part of the institutions that have been involved in and perhaps pushed for such sponsorship opportunities. Or one might ask whether financial needs have made law review editors more open and law schools more amenable to this phenomenon. On the other hand, there are all kinds of sponsors out there, not all of which have any role in content or any interest in having such a role; law review editors could accept sponsorship from such institutions, or even from the more partial or political institutions involved in the recent examples, while insisting that clearly skeptical or opposing views be a part of the symposium; and if flagship law reviews acted likewise with corporate sponsors--say, accepting sponsorship from big defense firms for a symposium on class action law, taking advice from those firms on whom to invite, and filling most of the guest list with critics of class actions, perhaps with one or two token supporters--they would surely face public criticism and loud charges that doing so would seriously wound the journal's scholarly credibility.  

4) Is it necessary? I find it hard to see how the answer is yes, at least if the question is whether it is necessary for elite flagship law reviews to turn to such groups for "sponsored" or "co-sponsored" symposia. The most obvious reason is that elite law schools, like most law schools and then some, are not exactly lacking in secondary journals, most of which are subject-specific and a number of which tend to have a more overt point of view or mission. Texas advertises ten other journals, including one devoted to civil liberties and civil rights. The 14 other journals listed by UCLA include journals specifically devoted to "scholarly analysis of issues relevant to Chicano and Latino communities" and "current topics in criminal law, policy, and practice." Columbia has 13 other listed journals, although one (the Journal of Law & Social Problems, which is excellent) is devoted to student writing. It does not seem necessary for any of these schools' flagship law reviews, which--I would suggest, not terribly controversially--have a general mission of making themselves open to a variety of issues, subjects, and (even in symposium issues) points of view to collaborate with particular groups of the sort I've named here. (Again, as I made clear, I know less about BruinX or UCLA's Office of Equity, Diversity and Inclusion.)

I might add as well that if there is a perceived need for a new journal with a distinctive mission and open and apparent point of view, if any school can afford to start it, it would be one of these schools. I would also suggest, admittedly by way of speculation, that if the Federalist Society, which has its own publications including the Harvard Journal of Law and Public Policy, had co-sponsored a symposium run by and (I assume) seeing print in the Texas Law Review, even with an ostensible liberal on each panel, we would likely have seen more public discussion of these questions. Probably much more public discussion. And we certainly would have seen the argument that there was no justification for such a group acting as sponsor to a symposium in the flagship journal, when it had access to other publications elsewhere and could always turn to a conservative secondary journal at Texas itself.        

5) Is it healthy, unhealthy, or neither? Given that we're talking about a single symposium issue out of several issues in a volume, I could imagine the argument that even if it's not especially healthy, neither is it unhealthy; it's just not a big deal one way or the other. And from a different perspective, I can imagine arguments that it's actually salutary. Leaving out openly political arguments to that effect, one might argue that sponsorship of this sort allows for expert advice about subjects and speakers, and for a wider and more diverse range of speakers. I don't see, though, how these arguments are terribly convincing. One can seek out expert advice without accepting sponsorship, particularly from groups with fairly clear points of view or political programs. And one can similarly seek a more diverse range of speakers without accepting sponsorship, and without leaning toward any particular viewpoint at all.

On the other side, there seem to me to be lots of obvious reasons to be concerned about this.

Leaving aside their employment value for students, main elite law reviews exist to serve two primary missions: To confer status and prestige, and to advance wide-ranging scholarship on a wide range of topics and from a wide range of methods, approaches, and viewpoints, about the law. (Some would reverse the order of the missions in that sentence.) Accepting the sponsorship, and almost inevitably the influence, of a group that may well have a particular axe to grind or mission to advance, at least in a way that does not insist on the presence, participation, and publication of skeptical and outright opposing points of view, doesn't seem to me to advance the second mission, and does seem to me to undermine the scholarly and academic credibility of that journal.

As to the first mission, it is of course widely recognized that, for better or worse, publication in one of these few journals can have dramatic career-making or -advancing effects. Law professors know it (and sometimes lament it), and elite law review editors are not unaware of it either. There is no shortage of discussions out there about the ways in which elite journals in the past or present served to create and entrench certain hierarchies or subjects and confer status in some places, but not others. And that was in circumstances in which those editors rarely had some explicit mission of conferring status selectively and with deliberate partiality, and in theory were open to all subjects and viewpoints. An elite journal that gives over one sixth (or one eighth or whatever its issue-per-volume percentage works out to) of its annual space to a particular sponsoring group and, as part of that sponsored issue, gives space to one general point of view alone in selecting conference participants and authors, is quite clearly rigging its status-conferring machinery in one direction, at least for the space of that issue. If it is not deliberate on the part of the journal (although it seems pretty apparent and foreseeable to me), it certainly may be on the part of the sponsoring organization, which is another reason to avoid this kind of partnership. All of this is all the more true because if the desire is not to confer status and prestige, but to give a particular airing of a specific viewpoint on a particular issue, then, again, there are numerous secondary journals that can satisfy this purpose without departing from their proper mission and role. The only difference is that those journals are less prominent and confer less professional prestige, which ex hypothesi should be irrelevant.  

6) Are faculty advisors, general faculty, or law school administrators aware of and thinking about any of this? I was the faculty advisor to my school's law review for about a decade, and I'm happy to lay my own cards on the table here. If a group of this sort had come to me with the suggestion that it "sponsor" a symposium in Alabama's main law review, I would have said no. (I would have been tempted to use stronger language, but I'm nothing if not diplomatic.) If the group had approached the student editors directly and the students had come to me and enthusiastically agreed with that proposal, I would again have said no, and argued that it was a bad idea. In general, my philosophy as faculty advisor was that the volume belonged to the students, not the advisor or anyone else. But in this case I would have been firm, in the institutional interests of both the journal and the larger academic institution. If faculty colleagues had suggested this to the student editors, I would have declined on behalf of the journal and, in keeping with what I saw as one of my main functions as faculty advisor, would have run interference on behalf of the editors in case those colleagues attempted to cajole, pressure, or otherwise influence the students. And if I saw this happening at my journal while I was not faculty advisor, I would have gone to my colleagues, and also directly to the administration, and urged it to put its foot down and to halt any such practice altogether. 

If I were faculty advisor to any of these journals--I won't say especially any of these journals, but it's true that these journals have a uniquely if absurdly privileged position in our field, and that privilege ought to entail a strong sense of institutional responsibility on the part of the advisors--I would definitely take the same position. And if I were a faculty member at one of those schools, I likewise would raise the issue with my colleagues and with the administration. At a minimum, I would insist that it be openly debated by the faculty as a matter of policy, and I would argue for a firm rule barring these kinds of arrangements.

I welcome disagreement on any of these arguments, clarification on any of the public record, or additional information if others have heard of other journals (especially, but not limited to, flagship journals at elite schools) engaging in what seems to me a relatively new and disturbing phenomenon, or have heard of faculty either advocating or complaining about such arrangements. It's the fact of public recognition and discussion of the potential trend that matters, as far as I'm concerned. It would be terrible to slide insensibly by degrees into a change of policy of this sort. And I find in the end that a lengthy list of caveats is not necessary. I was especially worried about being unduly harsh to law students--even those who occupy unquestionably privileged positions. But it should be clear that the real concern here is with another set of actors entirely: partly the sponsoring groups, which should know better and act better, but mostly the faculty, the faculty advisors, and the law school administrations, all of whom have a responsibility to the scholarly apparatus of their discipline, including the law journals (as subject to criticism as they already are), and a duty to maintain their integrity, a duty that ultimately is salutary for the student editors themselves and that can help insulate them from any susceptibility or pressure to fall into unwise entanglements.  


Posted by Paul Horwitz on May 20, 2019 at 06:23 PM in Paul Horwitz | Permalink


After decades of a financial assault by right wing crackpots you’re worried about the ACS?!

Posted by: Steve Diamond | Jun 3, 2019 11:50:33 PM

No *dog* in the fight, I believe that should be.

Posted by: Paul Horwitz | May 22, 2019 4:44:10 PM

I'm grateful to Micah for the questions and for further thought-provoking conversation via email with him, and an equally interesting discussion with another correspondent. As I emphasized to both of them, I certainly am glad to think and rethink my own position and the lines I would personally draw, and both of them gave me good reason to think more about these questions. Micah is both a friend and a serious questioner who deserves a serious answer. Moreover, I'm going to answer him only once, and leave it at that even if he has excellent questions in response, so I'd like to be reasonably complete. So readers can strap in or check out in anticipation of another long answer.

To emphasize this again: What counts the most for me is a) making these issues a matter of public consideration by our discipline and b) coming up with some policies, at least at individual schools and perhaps especially (but not necessarily exclusively) at the elite schools. If those policies ended up being either stricter or laxer than I would like, I would still prefer that to even a perfect policy arrived at by fiat and silently, or to no discussion and no policy at all.

I should also make clear the combination of factors that concerned me, although I would be perfectly happy to have people raise other factors or concerns in thinking about policy on these issues: a) flagship or "general" law reviews, which are generally assumed not to have or take a position but to favor good scholarship on a variety of subjects and taking a variety of positions, and to take the same approach with symposia; b) the role of sponsors (I have been concerned about a couple other recent elite law review issues, but I didn't discuss them because they didn't involve sponsoring groups, just good or bad choices by student editors); c) specifically, sponsors who don't merely help advance the study of a particular field or issue or methodology, or legal scholarship generally (such as a law firm ponying up for a law review symposium but having nothing beyond that to do with it and no corporate "position" on the issue), but have and push a stronger normative or political agenda; d) a resulting symposium that leans in the direction of that position and doesn't give enough voice to a full range of study, comment, criticism or skepticism, etc.; and e) although I don't think the concern is limited to them, I noted and was concerned about what I called a possible trend specifically in elite law journals--the customary 15 journals in the top ten--given their role, acknowledged or otherwise, in conferring status and prestige in a discipline that is somewhat obsessed (say, James-Stewart-in-Vertigo-level obsessed) with status and prestige, perhaps because of the breadth of the discipline and the absence of clear disciplinary standards and measures. I would add f) any involvement by the sponsor in planning, choice of invitees, etc. But I should be clear that I don't know what role, if any, the sponsors had in the symposia I named in my post, and I don't make any assumptions about that.

It would be one answer to at least one of Micah's questions to say that the journal he mentioned falls outside the mythical top 10. But I think it's a pretty damn good journal--perceptive or charitable enough to publish me once or twice!--and I don't in any event want to dodge the question in quite that way, as important as I think the elite component is (and as relevant as it is to what I wrote, given that I noted the same phenomenon arising at three unquestionably status-rich journals in just a year). I *do* think it's very relevant to add that I don't recall a sponsor at the symposium (which I participated in), and if there was one I don't recall it being the kind of sponsor I was talking about above. But perhaps I recall incorrectly. (And that raises a point made by one of my correspondents: Although I don't think transparency alone is sufficient, I certainly think that law reviews should be transparent about symposium sponsors--and doubly so if the sponsors have *any* role beyond a nominal and financial one, which I think they shouldn't have in any event. But I honestly don't recall any sponsor of that sort at that event.) I would indeed distinguish the symposium on that basis from the phenomenon I raised concerns about.

I think the one area where Micah and I *might* have some back and forth, and where I'd be happy to be pushed to think about this, would be the question of the composition of the conference. One could imagine adding a more critical or skeptical speaker to that symposium, which was on religious liberty and Dignitatis Humanae. Although not all the speakers ended up dealing much with DH, that was at least the call of the conference, so I think the most relevant invitee for these purposes would be someone who would be likely to engage with that document, but in a more critical or skeptical way than the other invitees; it wouldn't be just "anyone who takes a different view on religious liberty simpliciter." But I could think of one or two people offhand, and I'm sure there are more, who would fit that narrower description.

All that said, in addition to the sponsorship distinction noted above, my recollection of the symposium was that there was no implicit or explicit thesis advanced by or assumed in the invitation by the symposium organizers. They didn't, to the best of my knowledge or recollection, take the position that DH is good or right or that some particular position on religious freedom is good or right, assume it in the invitation's language, invite or expect us to share it, or anything of the sort. There was no "thesis" that was assumed to be true in the first instance, and I don't think the speakers really took the same view on DH or on religious liberty. So no, I don't think it is an analogous example. But I'm always open to criticisms that this or any other symposium could, within the bounds of human imperfection, have included this or that other voice and would have been a better symposium for it. (And conversely, as I tried to make clear in my post, even though I think the sponsored symposia I mentioned raise real concerns, that doesn't mean I think the papers that came out of or will come out of them were at all bad or that there were *no* differences among the participants. I did worry, however, based on my own conclusions concerning the public record, that those symposia were not best designed or executed to achieve the goal of intellectual and scholarly diversity and difference.)

I think that's a general concern that applies to many symposia, although not always as a matter of anyone trying to channel the discussion toward a particular conclusion or political end deliberately. But it's also a separate concern, I think, not really the specific concern of this post. If law review editors at a flagship elite law review decided that they were going to hold a symposium only inviting skeptics of class actions and leave out those who support class actions (and, worse still, if they did so in part because they wanted to put the prestige of the journal behind that view and advance the careers of like-minded thinkers on that issue while blocking that channel of advancement for those holding a contrary view), that would certainly be very bad in my view and worthy of faculty intervention. But it wouldn't be the subject of this post. If they did so in part because they were urged to do so by a sponsor with an anti-class action view that used the journal to advance its view in a way that distorted what should be the proper aim and approach of a general law review, either directly or by throwing its support to already eager student editors who shared that ambition, *that* would be the concern I'm raising here.

My answer to the second question is this. There are reasons to be wary of sponsored symposia in general law reviews, at least in cases where the sponsor takes a particular stance or position. There are groups that clearly fall into that category and others that almost certainly don't. A DC-based "Center for the Study of Democracy" that is non-partisan and really actually, you know, studies democracy, could conceivably sponsor a symposium on democracy in a law review. I don't object to a symposium dedicated to democracy. It's a pretty broad subject and there's room for plenty of difference of view. If the center had a role in urging particular speakers, I might have a problem with it even if it was a serious group; but mere sponsorship itself wouldn't much concern me. I'd feel differently if it were the "Center for the Democratic *Party*" (or the party of your choice), and obviously would be even more critical if it was involved in or encouraged the stacking of the deck of speakers.

I'm not knowledgeable enough as I write to say which category Olin falls into. Although I like much of what it actually did, I would say that its mission statement raises legitimate concerns. The strength of my personal reaction might turn in part on whether it was involved in anything beyond providing basic funding to a symposium. A symposium on law and economics seems legit to me, for instance, and can be diverse in its policy conclusions even within a particular method or discipline, and for that matter the editors could deliberately include those who are, say, skeptical about extending economic analysis beyond a more traditional market sphere. But, again, I do think the mission statement could give pause to many regardless of how responsibly it actually acted. In any event, I have no bone in the fight. I'm happy to be catholic in defining the groups that one might be concerned about in sponsorship situations.

My goal, again, is to note the potential phenomenon and encourage the basic discussion. If Elite Law School X next year decided that it was going to bar sponsored symposia, or forbid sponsors to have any involvement beyond handing over a check, or forbid sponsorship where there might be a reasonable concern about the *appearance* of a scholarly conflict of interest or lack of scholarly disinterest and diversity in that symposium, and drew that rule broadly enough to exclude sponsorship by groups that I might think are fine, I would prefer that to silence, inattention from faculty, faculty advisors, and administrators, no policy at all or one changing from year to year according to the views and whims of individual editorial boards, and so on. That policy wouldn't address the separate concern about diversity of views and speakers at law review non-sponsored symposia, a concern I share in broad terms. But that for me is a question for another epic post and another day.

I'll note finally on the second question that there *have* been academic discussions and criticisms of sponsors of that sort, in that period and later. Even leaving outside corporate sponsorship of legal research, which has drawn heavy critical *and public* discussion in the legal literature, it was not hard to find public and highly critical discussion of the role of the Olin Foundation in legal scholarship. I take it that it is a generally agreed upon proposition that worries about sponsored scholarship are not limited to sponsors with a particular ideology, or corporate versus non-corporate sponsors, or something of that sort. I would think that the three examples I raise, and their closeness in time and the elite status of the journals involved, are occasion enough for at least *some* public discussion and suggest it's a good time to get ahead of the question rather than lag behind it.

Posted by: Paul Horwitz | May 22, 2019 4:40:16 PM

I plan to post a response soon, thank you.

Posted by: Omid Sharbati | May 21, 2019 9:49:40 PM

It should be no surprise that these journals strongly favor and privilege liberal viewpoints. The legal academy is so tilted to the left that self-censorship by people hoping to move to a different school is probably a far bigger concern than things like this.

Posted by: Anon | May 21, 2019 12:18:03 PM

I have two questions:

1. Does this count as the type of thing Paul is talking about it? If not, what's the difference -- group sponsorship, law review prestige, composition of the conference? I'm not sure where the action is.


2. What about conferences sponsored by the Olin Foundation in the 1990s? The Virginia Law Review published conferences on l&e topics annually for many years, sponsored by Olin. (I know, in part, because the board my year ended the practice, mainly to get away from publishing symposia.) I'd be a little surprised if similar conferences weren't sponsored at other law reviews (including t-whatever), but I haven't looked.

Posted by: Micah Schwartzman | May 21, 2019 11:56:07 AM

I have two questions:

1. Does this count as the type of thing Paul is talking about it? If not, what's the difference -- group sponsorship, law review prestige, composition of the conference? I'm not sure where the action is.


2. What about conferences sponsored by the Olin Foundation in the 1990s? The Virginia Law Review published conferences on l&e topics annually for many years, sponsored by Olin. (I know, in part, because the board my year ended the practice, mainly to get away from publishing symposia.) I'd be a little surprised if similar conferences weren't sponsored at other law reviews (including t-whatever), but I haven't looked.

Posted by: Micah Schwartzman | May 21, 2019 11:56:07 AM

I really, really vow after this to avoid engaging on the length question. But yes, fair point and, again, mea culpa. I'll try to keep it in mind in the future.

Posted by: Paul Horwitz | May 21, 2019 10:13:37 AM

I read your posts, and it is your prerogative as to length, but might I offer one suggestion: start off with a thesis statement. I was put off reading this particular post as you don't even get to your point until the third paragraph.

Posted by: AnonProf | May 21, 2019 10:07:33 AM

I appreciate the comments so far. I welcome other information, examples, arguments and counter-arguments, and so on. My main goal, as I noted, was to make visible a possible trend, especially given that not everyone these days is inclined to look at the tables of contents of new law reviews as they come in and thus spot possible trends. of this sort. I've made my concerns clear, but it's a question for the larger legal academy, including student editors, and the legal profession itself to discuss. I will re-emphasize that, for better or worse, law reviews are a primary means of transmission of scholarship for our discipline, and caring about how they work is an indefeasible disciplinary responsibility.

Marty: I hoped there was some dry wit involved in calling status-conferral a "mission" and putting it first. Of course I think the second mission I named is the true mission. But conferring status and prestige is what elite law reviews do, and both the editors (see the link I provided) and scholars know it (hence the expedite scramble and all the rest of it, among other things), even when we protest that we care about quality and not placement--a statement that is true but hardly the whole truth. (I have seen faculty hiring searches, at institutions besides my own, that started, as a rough cull, by looking for faculty with placements from a selective list of journals.) It may be a by-product, but it's so entrenched and so much a part of the order of things that I'm not sure it's really incidental any more, even if it ought to be. And it's relevant to the post for the reasons I offered.

I think "Dandy" puts the point well, and I agree. I'm perfectly happy to have a symposium that has a clear thesis or subject matter, and I should have made that clear. As Dandy writes, the question is how the bucket is filled, and whether or not the thesis is assumed in the first instance to be true and the cast of participants chosen accordingly and supportively.

People can discuss the "damn, your posts are long" point if they wish, although I hope I'll get more substantive comments too. I'll say this and then leave it be. Sometimes the length is a definite personal flaw as well as an incident of not having or taking more time to edit. Mea culpa. Sometimes I write at length for specific reasons, such as wanting to make qualifications or nuances clear and not wanting to make flat assertions or assumptions about the motives of others. I do wish I wrote more brief posts along the lines of "here's a good new book" or "check out this article." In any event, I take responsibility for the length of my posts and can hardly blame anyone who decides to skip them. I'm fine with not being read, and prefer it on the whole to being read and misunderstood.

Posted by: Paul Horwitz | May 21, 2019 9:45:00 AM

We finally get a blogpost that's more than twice as long as a tweet and all I see is complaining that if it's going to be that long, there should be an audio version of it because reading is difficult and lawyers are bad at it anyway.

Posted by: Bart | May 21, 2019 8:45:48 AM

To offer a qualified defense of Horwitz's posts' length, of course there are plenty of people who skip reading, on account of length, (a) The Man Without Qualities, (b) longform journalism, (c) articles in the New York Times, in favor of, I don't know, Axios, and (d) the blogging of Paul Horwitz (or Rick Hills, or Marty Lederman, or my old stuff). That is mostly their loss. And there are plenty of people who read these things; Horwitz's Prawfsblawg posts have been cited in 27 law-review articles, not counting his own, which is quite a lot given the typically non-doctrinal subject matter. Now, are these posts "unnecessarily" digressive and discursive and qualified? Yes, at least as to the first two -- there's nothing truly necessary about the style, which is true of any style -- but that's who he is as a writer and I'm sure there are lots of people who wouldn't be that interested in reading posts making some of the more banal workaday points his posts make about law reviews or clerking were it not for the digressions and somewhat belle-lettristic, late-Jamesian style. (At least I wouldn't.) As for the qualifications, he chooses to qualify rather than saying more than he's certain of, and he probably wouldn't write these things if he were forced to dispense with the qualifications. When I used to blog, I would put the matter I thought people could skip in sections called things like "An irrelevant but hopefully amusing prologue," but I'm (much) more whimsical, and to be fair, it may be important to him that his qualifications are read.

Posted by: Asher Steinberg | May 20, 2019 11:45:55 PM

Peter, start with "The trend, roughly, is this:" and read the first sentence or two of each paragraph that starts with a number, and you'll probably get 95% of the substance.

Posted by: anonistan | May 20, 2019 11:11:18 PM

Do you realize that people don't read your posts because of how (unnecessarily) long they are? Noting at the outset that you're aware of how long they are is not a justification -- it just makes things worse. You can't sidestep around warranted criticism by preemptively acknowledging it, and then proceeding to ignore it. There's so much throat-clearing here that most people just stop 1/3 of the way through: it's as bad as the worst of law review articles. This is an important topic, and yet whatever merit is buried somewhere in the forests of these qualified-to-death paragraphs will likely never see the light of day. (I think this every time I see a post by Paul Horwitz; this time I was exasperated enough to comment on it. Next time I'll just automatically move on to reading posts by people who respect their readers' time, which is what I expect most people still visiting this site do.)

Posted by: Peter | May 20, 2019 8:43:26 PM

"4) it seems pretty clearly reflected too in the list of speakers."

This is really the only problem--that there isn't a roughly equal number of speakers on both sides of the issue, and that those speakers aren't taking radically different angles of the issues---even if they're on the same side.

I don't care if an issue is dedicated to "first amendment lochnerism" or "LGBT tribal sovereignty", so long as it feels like there are many intellectually-diverse speakers taking radically different views on the topics from numerous angles.

Posted by: Dandy | May 20, 2019 7:38:40 PM

I know it's not the principal topic of your post, but I was far more troubled by this than by the symposia you describe: the notion that one of the "two primary missions" of flagship journals is "to confer status and prestige."

An incidental (and largely unfortunate) by-product, sure. But a mission--a *primary* mission? Yeesh.

Posted by: Marty Lederman | May 20, 2019 7:08:52 PM

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