Ann Althouse, Law Professors, Law Reviews, Law Schools, Politics, Screw-Ups, Technology

A Look Inside the Law Review Sausage Factory — and Possible Evidence of Bias Against Conservatives

Grind up some brilliant legal theories, spice liberally with Bluebook-compliant citations, and voilà — law review articles!

Have you ever wondered how the law review sausage factory works? Perhaps you’re a law professor or practitioner who regularly submits pieces to law journals for possible publication. If you are, and if you’d like to know more about how the process works — or, more to the point, what law review editors say about you behind your back — you’ve come to the right place.

Thanks to the wonders of technology, collaborating with far-flung colleagues has never been easier. Here at Above the Law, for example, your four full-time editors — myself, Elie, Staci, and Chris — keep in touch throughout the day using Gchat.

But what if, due to inadequate security, your organization’s internal deliberations were accessible to the public? And, in some cases, even crawled by search engines?

What if you were, say, law students at a highly ranked law school, where you served as editors of a high-profile law review? And what if your, er, candid and colorful comments about the articles pending before you were to become publicly available?

What then? Let’s find out….

Over the summer, the submissions team for the Harvard Law School Human Rights Journal created a Google Group for themselves. This allowed them to work together on submissions, despite being scattered to the four winds for the summer.

Alas, the Google Group for the Harvard Human Rights Journal (HHRJ) was not adequately secured. As a result, the messages circulated over it were accessible for a time by outsiders — and even crawled by Google in some cases. Some of the emails made their way around legal academic circles and among law professors. Eventually they came into the hands of yours truly.

The HHRJ emails shed light on how law review editors go about deciding which articles to publish. They provide a fascinating look behind the curtain of the law review article selection process. I’ll discuss the most interesting messages here.

The most interesting messages are, of course, the most problematic ones. I should note at the outset that, taken as a whole, the emails show law review editors going about their duties diligently and conscientiously. I was impressed by the sophistication of the editors’ analyses of the articles, the tremendous hard work being put into the review process, and the enthusiasm the editors evinced for their work and for making the HHRJ the best journal it can be. For example, upon hearing about an author accepting their offer of publication, the editors would high-five each other electronically, sending out messages reading “Yes!!!” and “Woo-hoo!!!”

But there are a few emails I’m going to excerpt and discuss that are perhaps less flattering. For example, check out this email in which one editor discusses how he or she plans to deal with an author:

[Editor X] and I also spoke briefly about [Author A], and we think we’d like to string him along for a bit — no commitment but no rejection, either. We thought maybe an email in the next week or so letting him know that the process is still underway and asking him to let us know if his timeline changes would be a compromise approach. If you feel differently, let us know!

It’s no secret that there’s a lot of manipulation in the law review process, on both sides. Law reviews “string along” authors, and authors use publication offers from lower-ranked journals as leverage for squeezing out offers from higher-ranked ones. But it’s slightly uncouth to phrase things so nakedly: “we’d like to string him along for a bit.”

Here’s another comment, from an email evaluating an article, that made me chuckle:

True or False: [Author B] was super high when he wrote this article?

Hey, inspiration can come from many quarters, right? Coleridge wrote some of his best poetry while addicted to opium.

Law professors often complain about the so-called “letterhead effect.” As Professor Paul Caron explains the theory, “student law review editors faced with a deluge of submissions inevitably use an author’s school as a screening tool in selecting which articles to take a serious look at.” They use pedigree as a proxy for quality, instead of undertaking an independent assessment of the article’s merits.

Professors and law review editors debate the magnitude of the letterhead effect. This email provides support for the effect’s existence and its significance:

Reputation. Without sounding too snobby, [Author B] is not particularly well established as an academic. It’s not a big name school, he’s been a professor since 2005 so it’s that awkward middle ground where he’s not really new and upcoming but he’s not really a veteran, and he’s only published five articles (incidentally, the same number of articles that [Author C] has published in the last 24 months).

In short, school reputation matters to law review editors. And so does the expected citation count:

Ranking. I just don’t see something this narrative/theoretical getting cited very much. Ultimately citations matter a lot to us, and even though I agree with [Editor Y] that there might be lots of interest, that doesn’t necessarily translate to better rankings.

Again, this isn’t shocking, in a metrics- and data-driven world. But it’s something that authors should keep in mind when submitting to law reviews: Will this piece rack up the citations?

(Of course, one could argue that focusing on the anticipated citation count is a good thing, insofar as citation count is a proxy for whether an article is interesting to the outside world. Some critics of the legal academy, such as Chief Justice John Roberts, have argued that law professors don’t pay enough attention to what would be helpful to lawyers and judges when generating their scholarship.)

Now, on to the smoking gun — the email suggesting possible bias among law review editors against conservative authors….

(hidden for your protection)

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