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Wednesday, June 30, 2021

A Different Take on Faculty Intervention in Law Journals

Jonathan Adler has an interesting post about a purported controversy involving Duke's Journal of Law and Contemporary Problems. I can't vouch for the accuracy of the details, since the source for his post is an item in Above the Law. As he notes, insofar as the apparent controversy involves student editors at the journal protesting the editorial decisions of a journal which is and describes itself as faculty-edited, it's not really much of a controversy. What interests me is Jonathan's take. He writes:

The ATL story certainly sounds bad, as most law journals are led and managed by students, with minimal faculty supervision (let alone control). Forcing student editors to publish an article would be quite a breach of journal norms....

Let me suggest another view. I do not disagree with him descriptively. It is true, if embarrassing, that most American law journals are student-run. (That is not true of most law journals elsewhere. In those places, a) most law journals are run by faculty, b) students may get involved in some capacity but doing so is not at all a key to future jobs or professional advancement, and c) law is more genuinely and seriously an academic discipline--and articles don't run for tens of thousands of unnecessary words or place marketing on an equal level with substance.) It is also true that direct faculty intervention would be contrary to the usual norms. But it's not so clear to me that those norms are always salutary or that we shouldn't take another, more positive look at the possibility of faculty intervention in the decisions of law journals. 

The Harvard Law Review is a formally independent entity. I'm not sure that's true for the overwhelming majority of law journals, which are student-run but substantially funded and operated by their law schools. Whatever their degree of formal dependence or independence, they exist to fill a function. That is, in theory, first and foremost to publish scholarship. If a journal's board decided to spend the year publishing MFA theses or recipes for moussaka or hot takes on contemporary politics, it would be derelict in its duties and any sensible faculty would intervene. And quite properly so, regardless of whether the decision to abandon its obligations was ratified by even a unanimous vote of the current editors or not.  

I take it as a given that academic disciplines are subject to change and internal debate, and that a reasonable range of reasonable disagreement about the boundaries and best practices of that discipline is always available, especially in an undisciplined academic discipline like law. But as the examples above suggest, there are limits, and in cases where the limits are exceeded it seems to me that a faculty and/or administration's obligations--to the discipline as a whole and to itself as an institution--require it to intervene.

I am inclined to think that they ought to do so more often than they currently do. I have already suggested in past posts that there seems to be a larger number of mainline journals engaging in questionable scholarly practices, including running symposia that are clearly unbalanced and clearly make no effort to be balanced, despite being mainline journals. (I leave aside secondary journals that espouse a particular point of view. One might question their very existence. But they are secondary journals, and they at least advertise their biases openly.) One may ask reasonable critical questions about the behavior of the Washington University Law Review last year. Two sets of questions might be raised about a recent symposium in the Roger Williams University Law Review, which both took funds from a group which takes a partisan position on a set of legal issues and advocates for those issues in court (and thus has every reason to support one-sided scholarship on those questions), and openly disclaimed any interest in seeking out contrary views. (I cannot say what influence the subsidization had on the symposium, because the conditions, if any, of that subsidy were not spelled out. But that is exactly why people are suspicious of subsidized scholarship. And nothing in any event prevents a journal from turning down offered money, or taking it and then doing what it wants to and what is right.)

I cannot say empirically that law journals have suddenly or dramatically become more one-sided, more opinionated, less driven by well-established norms of scholarship, less interested in norms of scholarship as such, more interested in issues that are orthogonal to their actual mission and responsibility. But that does seem to me the direction in which things are headed. In such cases, it seems to me the "minimal" faculty supervision or control should become less minimal. In such circumstances, faculty that persist in maintaining a hands-off position are actually disserving their own discipline and abandoning their own professional obligations.

Given the strange existing structure we have in our discipline in this country, a norm against faculty intervention is not a bad one. But it depends on a prior and more fundamental norm--that the law journal act as a law journal, acting according to academic norms and values for academic purposes. Where it fails in that, intervention is fully warranted. Perhaps we ought to be thinking about doing just that more often than we do. It's worth remembering that student editors of academic journals serve for one or two years. Some of them have a sense of institutional history and an inclination to think about their fiduciary responsibilities to the discipline over a longer time period. Some, understandably, will not. (If journal membership had nothing to do with jobs or prestige, I assure you from experience that the interests and commitments of those who still chose to participate in them would be very different.) As faculty and administrators, our commitment to and responsibility for the discipline is longer and deeper, and more important than the possibility of upsetting a subset of a given year's worth of editors. (Surely a subset; journal editors are no more unanimous than any other group of individuals.)

I cannot help but add, as something of a footnote but perhaps an important or telling one, that I suspect the reality is less hands-off than Jonathan's post suggests. How often do faculty or administrators lean on or use their influence with ostensibly independent law journals--to encourage the publication of a friend's tenure piece or their own, to steer the direction of a symposium for partisan or other non-scholarly purposes, or for some other non-scholarly and non-disinterested reason? Less often than gossips would have it, perhaps, but certainly far from "never." But that sort of behavior is more or less accepted as part of the system, in part precisely because it is tacit and quiet--a vice, but at least one that pays tribute to virtue. A direct, open faculty intervention--for the right reasons, to be sure--might be more of a seeming violation of existing norms and occasion more reaction. But it would be public, clear, deliberate, and properly justified. We might hope that the latter sort of intervention might never be necessary. But in many ways I think it's preferable to the former sort, and more virtuous in fact.

Posted by Paul Horwitz on June 30, 2021 at 11:03 PM in Paul Horwitz | Permalink


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