Affirmative Action for Law Scholarship
posted by Dave Hoffman
There are several issues in this unfolding story about Scholastica, law review submissions, and “diversity” preferences. Let’s break them out.
- I’m shocked! Shocked!: Over at Prawfs, Professor Mannheimer and various anonymous commentators think that Orin, Josh and I are naive. Everyone knows that law reviews routinely take race, gender and sexual orientation into account when choosing between articles. Indeed, Josh got an email from a former editor at the California Law Review saying that the practice “is nothing new and not exactly a secret.” Well, shucks. I guess I’m the sucker here. Even if this had crossed my mind, I would have naively thought that law faculties would never permit law student boards to make decisions about articles based on race, gender and sexual orientation without clearly thinking through whether such practices were legal, and without setting forth an explicit and public set of guidelines vetted by university counsel’s office. Honestly, the idea that California, NYU, Boston College, and other law reviews are thinking about my sexual orientation when they go forward with a “board review” is so unbelievably offensive that I’m still having some trouble wrapping my head around it. So, yup, I’m shocked.
- But everyone else is doing it: On the prawfs thread, several anonymous commentators stated that diversity preferences (however defined) are no worse than preferences that boards already express for (or against) elite school letterhead. There are two points to make here in response. First, the best law journals already engage in blind review, and using letterhead as a proxy for quality is antiquated and embarrassing. It’s not a defense of a bad practice that another bad practice exists. Second, though it’s not well thought out and should be abolished, at least the intuition behind letter-head bias is rationally related to what I thought the law review’s ends were: to select the best piece of scholarship. But what’s the intuition behind picking people, not papers? That law review placement is a “good” owned by the law review that wise and benevolent boards should redistribute in the ways that seem best to them?
- Scholastica’s just an enabler: I can’t quite figure these folks out. They commented yesterday that they were just giving reviews what they wanted. But then some editors wrote me to say that they didn’t want this widget – and that they only clicked on it because it was so easy to do. Indeed, Iowa appears to have de-clicked the widget yesterday in response to this thread. In the best possible light, it seems to me that Scholastica’s developers are simply importing other disciplines’ norms and preferences into the law without thinking carefully about how you might want to have different tools for faculty editors than unsupervised student boards. But maybe that’s not the light to see Scholastica in. As I wrote yesterday, their high price, preference for a different kind of scholarship, and exclusivity campaign might suggest that far from being merely a “platform”, they are hoping to use digital architecture to change law review behavior. I’d love to hear more from them about what their goals were and are going forward for legal scholarship.
- Until such questions are answered, my view is that of a commentator from yesterday: vote with your feet. Don’t use Scholastica unless the journal absolutely insists, as very, very few do. Consider also sending emails to the faculty advisors of journals that are exclusive to ask them if they are on board with this potentially radical, and radically troubling, shift in law review standards and selection processes.