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.