Scholastica & Law Review Selection
posted by Dave Hoffman
As several commentators noted (most in private emails, because they are afraid of negative consequences in the submission market), a very disturbing aspect of Scholastica’s new submission process is that it appears to facilitate and encourage law reviews to use sexual orientation, race, and gender in selection decisions. Josh Blackman has investigated, and written a very useful follow-up post which I hope you all will read.
My own view is that whatever the merits of law reviews giving “plus” points to authors at less prestigious schools,* providing plus points on account of race, gender, and sexual orientation is a terrible, terrible practice, especially if the plus points are awarded in an opaque manner by a largely unsupervised student board at an instrumentality of the state. Scholastica appears to take the position that it’s just giving journals what they want here. Would it feel the same way if journals were planning to use sexual orientation and race as negative factors? (Which, from a certain perspective, is exactly what they may be planning on doing.)
Mike Madison, writing on this topic in the fall, suggested that Scholastica is leading the charge toward a privatization of legal scholarship, with all of the associated pathologies (lack of transparency, etc.) That sounds right. Why, again, are faculty at schools like California (Berkeley), NYU, Iowa, and USC on board with this development?
*This too is a bad idea, but that’s a topic for a separate post.
February 13, 2013 at 5:24 pm
Posted in: Law School (Law Reviews)
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Responses (10)
AnonProf - February 13, 2013 at 6:57 pm
It strikes me that taking authors’ demographic characteristics into consideration for publication is just as wrong as it would be for professors to give any weight to those characteristics in our grading. Some editors and educators would rely on those factors to further diversity, while others would rely on them to exercise their prejudices. I realize that this use of proxies already occurs, since names and faculty pages give some of this information away, but this overt acceptance of impropriety is distressing. Again, it would be like my grading a final and having a look at the student’s name or photo before coming to a decision on the grade. I realize that elitism already plays a role in the law review process, and that’s bad enough already, the new approach just adds an extra problematic layer, and this one is tied to troubled aspects of the nation’s history.
Michelle Meyer - February 13, 2013 at 7:04 pm
Hi Dave. I’m curious if you have a position on using gender, race, and the like to select invitees for symposia, conferences, and similar speaking engagements. Is doing so an equally bad idea, in your view, or are there differences between the two situations that suggest different answers? I ask because my first instinct, on hearing of (what it seems to me fair to call) affirmative action at the level of scholarship selection, was that this, like many other aspects of legal scholarship, is a clear anomaly within academia at large (quite apart from its merits or lack thereof as a practice). But then I considered the fairly common — and fairly strong — norm (if not necessarily consistent practice) elsewhere in academia of trying to ensure that one invites a suitably diverse panel of speakers. Indeed, in philosophy, entire boycotts are currently afoot in response to perceptions that conferences failed to include sufficient numbers of women. So I’m wondering whether you think these situations are on all fours, or whether there are significant relevant differences. (To be clear, I don’t mean to be asking a leading question; I’m truly just curious about what you and others commenting on this think about this possibly analogous practice.)
HuffyHenry - February 13, 2013 at 7:16 pm
For authors concerned about the collection of demographic characteristics, I can offer a bit of good news. I am an editor at one of the journals now using Scholastica. When we heard earlier today about these concerns, we contacted Scholastica immediately. We’ve never used information regarding an author’s race, gender, or sexual orientation when selecting articles in the past (as a “plus” factor or in any other way), and don’t intend to do so in the future. We agree with the sentiment expressed here – we don’t think such information is useful when making selection decisions.
When we spoke with Scholastica, they offered to remove the “optional demographic information” box from our journal’s interface. We expect that to happen within the next day or two.
As to why a journal would opt for Scholastica over BePress/ExpressO, it’s difficult to overstate how much easier it is to manage the hundreds (for some journals, thousands) of submissions that arrive in February and March using Scholastica instead of BePress. We hope that leads to a better experience not just for student staffs but for authors as well – shorter turnaround time, clearer communication regarding expedite requests, etc.
That may not alleviate all authors’ concerns about Scholastica, but I hope it puts a few worries to rest.
Anon - February 13, 2013 at 7:18 pm
I view those situations as analytically equal. Furthermore, I view the consideration of immutable characteristics, irrespective of motive, as inherently discriminatory–at least for purposes of dispensing or withdrawing benefits of any kind. Discrimination by any other name smells just as bad.
Bob Lawless - February 13, 2013 at 8:02 pm
Thank you, Dave, for posting this. If the problem is that scholars’ works are not being judged on their merits, the legal academy should be moving more toward double-blind peer review, not further away from it.
AnonProf - February 13, 2013 at 9:38 pm
Michelle,
I know you don’t direct this question to me but to Dave, but let me chime in. I see them as analytically different. I think diversity is very important in symposia, and I agree that editors should seek a wide group of people taking of demographic facts there. The reality is that there are more men in some fields and more women in others, more minorities in some fields and less in others, more gays and lesbians in some and less and others, etc. So, there is an element of build-in inequity by virtue of the fact that some intellectual fields attract more of one group than another. But everyone deserves a change, irrespective of the fact that they are an outsider. In order to create opportunity and seek to achieve parity, symposia should be diverse.
The submission of articles is different. It’s all about quality. We all know that not all symposia pieces are great. There are renowned scholars who sometimes put in too little effort into their symposia pieces, but others put in just as much as they do into their submitted articles. Symposia provide opportunity for capable people who are struggling to get into a field to get their foot in the door and write an excellent article for people to see what they can achieve when given the change. But journal submissions should be exclusively about quality. Undoubtedly, as I mentioned earlier, elitism comes into play, letterhead bias is disgusting, name recognition can get you in, and all those characteristics should be irrelevant. But using historical categories of discrimination to close spots to meritorious articles is just plain wrong.
What do you think, Michelle?
dave hoffman - February 14, 2013 at 9:34 am
Michelle
I’m basically with AnonProf, whoever she or he is. (Anonprof? Really? Be bold(er).)
Michelle Meyer - February 14, 2013 at 3:48 pm
Thanks, Dave and AnonProf, for your thoughts (and AnonProf, allow me to compliment you on your remarkable prolificity on the various law prof blawgs). I’m actually not convinced that the two situations are much different — and I’m definitely not convinced that any difference between them is as large as “very important [to do]” in the context of selecting diverse speakers (in AnonProf’s words) and “a terrible, terrible practice” in the context of selecting diverse writers to publish (in Dave’s turn of phrase).
But this underrepresented human-with-a-uterus is under deadline, so I’ll have to explain why I’m not convinced later.
AnonProf - February 14, 2013 at 7:04 pm
Thanks for your response, Michelle. I’ll be looking forward to hearing you out more fully, and thanks so much for the smile at the end.
Dave, anonymity is a long held American tradition. I publish under my name plenty. Blogs are places where I prefer anonymity.
Michelle,
Thanks so much for noticing my posts. For years I was the only one writing under the moniker “AnonProf” but of late someone else, whom I don’t know, has written a couple of posts using it, c’est la vie. I hope our voices can be distinguished.
Michelle Meyer - February 15, 2013 at 10:11 pm
Dear AnonProf (who could ever confuse you with Anon Prof?),
I decided to stop hijacking Dave’s thread, but, FWIW, I have a much-too-ponderous response to your comment over at Faculty Lounge (http://www.thefacultylounge.org/2013/02/affirmative-action-inconsistency-obligatory-post-on-laffaire-schloastica.html).
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