Absolutely, Law Schools--and Their Faculty--are Responsible for the Actions of Law Reviews

I take no position on most of the issues discussed in this post about an author's dispute with the Iowa Law Review, which was brought to my attention by Brian Leiter's blog--except that, as Brian writes, it is hard to imagine any scenario where the correct response is publishing an article over the author's own objections. (The older I get, the fewer strong positions I take on anything, except the subjects of anti-inflammatory medicines and arch supports--and I am striving to be more open-minded on those subjects as well. It seems to me that one of the many problems with social media is not that so many people share foolish or dangerous opinions, but that so many people share opinions, full stop. Having opinions has become our most popular and least productive leisure activity.)  

But I want to highlight one aspect of the post. In an update, the author, Prof. Ramsi Woodcock of Kentucky, writes, "When I wrote the forgoing last spring, I had assumed that the buck stopped with the student editors, and that apathy and avoidance explained why the Iowa Law administration had not stepped in to put this right." He then recounts communications with Iowa's dean suggesting greater, albeit post-hoc, decanal involvement.

A very small number of student-run law reviews--I can think of only one for sure, although there may be others--are officially and financially independent of their law schools. The rest are part and parcel of the institution and, generally, are folded into students' education officially through credits and other mechanisms. (Even the independent law review(s) are typically intertwined with their law schools in all sorts of ways.) And that leads to the bottom line: of course law schools are responsible for their law reviews, and for the action of those journals and their editors. Insofar as they purport to be scholarly journals, it could not be otherwise; likewise insofar as they purport to exist for pedagogical purposes. And this is not simply a matter of decanal responsibility, although I think it would be a good thing if every law dean read every issue of every journal published at his or her school and sent "Grizzer-grams" to the editors after every one. The same responsibility attaches equally--if not primarily, as a matter of faculty governance and scholarly duty--to every faculty member. We own our schools' journals, morally and professionally as well as otherwise. 

Of course "apathy and avoidance" are a part of why we generally act otherwise. So are the fact that we become accustomed to particular structures, such as the assignment of a single faculty advisor to each journal (which I suppose we could file under "avoidance"), as well as less tangible structures, such as the fact that not every school distributes every issue in print to every faculty member as soon as it is published, announces its publication choices to the faculty when they are made, and so on. There are also reasons that are less blameworthy decisions than mere apathy or avoidance. When I was a faculty advisor, I gave the new editors some general views and goals, but I also told them that this was their work to be proud of, that the decisions and learning were theirs, and that I was there more to support them and run interference when necessary than to intrude into their choices. Some of that approach had to do with a recognition that within the overall scholarly mission of the journal, different years' editors might have different emphases: sometimes editors were more interested in national prestige, for instance, while sometimes they were more interested in making sure that Alabama law and practice were given due attention. But although that was my backstop position--and a convenient one it was, to be sure--in important senses I, and not just I but my colleagues and my dean, were and are still ultimately responsible for our journals. Not doing anything about it most of the time, or talking in general terms about how it's really the student's journal, doesn't alter that ultimate responsibility in the least; those are just decisions about faculty and journal policy for which we, the faculty, are responsible.

I emphasize this in light of the many interesting choices and positions taken by various law reviews over the past several years. (Those choices are admittedly not necessarily vastly different from similar decisions made by faculty-run or professional-society-run journals in other disciplines, lest we lay all this at the feet of the American legal academy's strange reliance on students to do the work of overseeing the place where one third of our work as professors, scholarship, appears.) If a law review decides to issue a statement about one of the articles it publishes, for instance, and if there are questions about such a decision, all of this is ultimately the responsibility of that law school's faculty. If a law review decides to take a position on the BDS movement, one that extends not just to questions of funding but to specific positions taken by scholars in scholarly work, that is not a decision independent of the parent institution, but one in which the law school's faculty and administration must be involved and for which they ultimately must take responsibility--including the responsibility to reject it, if they conclude it is not consistent with the duties of a journal and the obligations of scholarship. Keeping in mind that some law reviews specifically restrict themselves to particular subjects or openly have particular orientations, while mainline law reviews explicitly exist to serve the general and viewpoint-neutral mission of scholarship, if a journal explicitly or implicitly adopts a particular politics or set of viewpoints that alter or depart from its mission and, among other things, affect its publication decisions, who it invites to symposia, or other matters, that is a matter for which the law school and its faculty are ultimately responsible. They might endorse it, in which case they should do so publicly. They might conclude it is indeed an improper departure, in which case they have every right and obligation to stop it. Either way, the responsibility ultimately lies with the law school, not just institutionally or with the faculty advisor but with respect to the individual faculty members. As long as we claim to be a scholarly discipline, the responsibility is indefeasible.

Perfectly reasonable arguments can be made about sub silentio decisions in the past that, one might insist, were not neutral but in fact championed and enforced particular positions and values; not all decisions that might be seen as departing from a law review's proper role are new and not all of them are about today's hot-button issues or share today's consensus. Those, too, were ultimately the responsibility of the faculty and not just the journal. And one might note that there are times when the departure is not something initiated by the law review but by a faculty member. When a faculty member leans on a journal to publish a piece that the journal thinks it ought not publish, for instance, that's a failure of responsibility on the part of the faculty member--and one in which the dean and other faculty must support the journal's resistance. But it does seem to me that a number of mainline journals, at least on a year-to-year basis, have, sometimes explicitly but more often implicitly, made a variety of decisions of late that are not necessarily consistent with their specifically, officially general scholarly mission and obligations. Those decisions might be praised or criticized, defended or questioned. But they ultimately must be supervised by the journals' faculty, including appropriate intervention when it is called for. This is not a violation but a meeting of our obligations as scholars and teachers, both of which surely sometimes includes the duty to say "no" and to make people unhappy. It's a part of the job I don't think we pay enough attention to. The buck always stops with us.