Author Order in Law Reviews

Other disciplines don’t kid around about the ordering of authors in publications.  In political science and economics, alphabetical or reverse-alphabetical ordering is the dominant approach, even though it distorts hiring decisions.  In science, the first and last names matter – woe to the middle men!  Harvard is so concerned about the trend that it instructs its faculty to “specify in their manuscript a description of the contributions of each author and how they have assigned the order in which they are listed so that readers can interpret their roles correctly [and] prepare a concise, written description of how order of authorship was decided.”

In law, lacking a tradition of co-authorship, there appears to be at best a weak norm that the first author is the primary contributor. That results in a set of interrelated problems:

1)  To law audiences, the first author did the most work, and is rewarded in two ways.  The first is qualitative, and pops up at tenure, promotion, and lateral review — “he was the driver on that piece,” or “she was just the second author.”  Quantitatively, the bluebook foolishly permits multiple author works to be et al’d, meaning that the second through nth authors never get to see their name in the citation print.  Given the rudimentary nature of impact citation analysis in the legal academy, this mean that people who are listed first get the citations and the people who aren’t don’t. This might be less troublesome if the “first author” norm was correct — that is, if first authors in law reviews actually did more work. But my bet is that given letter head bias, many co-authored pieces list as the first author the most prominent author (or at least the author at the best-ranked school).  The upshot: first authors in law reviews are rewarded for being first in both qualitative and quantitative terms, though it’s not clear they ought to be.

2)  To other disciplines, this is fundamentally screwy and is another reason not to publish in a law review.  But interdisciplinary co-authored work published outside of the law reviews becomes that much more difficult as a result.  If a law professor and a non law professor were to publish in an economics journal, my sense of the norm is to alphabetize. [Correct me if I’m wrong here.]  Non legal audiences look at this and understand that it doesn’t signify relative contribution.  Law audiences don’t have that filter on, and the result (again) is that the second author is punished, here for having a last name at the back of the alphabet.

3)  Making sense of this mess requires coordination, which is quite hard because we lack a learned society that is sufficiently respected to impose change from above.  We do have, however, a few very strong journals that have had remarkable success in changing otherwise intractable scholarly pathologies like article bloat.  If the Harvard Law Review could -almost singlehandedly – impose a 25,000 word limit, surely it could fix this problem too.  In my view, the top few journals (HYS) ought to, as a part of their blue-booking project, agree to impose something like the Harvard faculty author order guidelines on folks who are publishing joint projects in their pages. The default ought to be reverse alphabetical listing.  Each article should state the respective contributions of the authors and, to the extent that they have deviated from the alphabet, why.  Finally, HYS ought to reform the bluebook to insist that the first citation of any work include the names of all contributors to the piece, rather than permitting et al. treatment.

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6 Responses

  1. Daniel Solove says:

    Very interesting. I wonder, though, whether the attitudes toward author ordering could readily be changed. In other fields, with the alphabetical rules, I wonder whether those listed first still have an advantage. So even in a system where everyone knows the rule is alphabetical, there still might be many who ascribe more weight to the authors listed first. Much work in behavioral economics and psychology suggests that people’s attitudes are sticky and don’t readily change despite their knowledge. People might know that the ordering is arbitrary yet still ascribe significance to the first author.

    For example, we all know the problems about article placement and that law students select articles. Yet despite this knowledge, we still ascribe a lot of weight to article placement.

    Thus, would changing the norm at HLS and other top journals change the attitudes about authors not listed first? I’d be interested in whether there are studies that show whether people’s attitudes toward authors listed first in disciplines with alphabetical rules are significantly different than attitudes toward authors listed first in disciplines without such rules.

  2. Dave Hoffman says:

    Dan,

    You are right — people will still mistake being first with being best. There is at least one study (which the paper I linked to discusses) that finds that economics with early-alphabet names are promoted, tenure, and lateral at higher rates. Similarly, the Harvard study I think found serious problems in medicine in terms of abuse. So even in my reformed system, there would be issues. But the advantage is that right now, we are both different from other disciplines and also have no articulated standard (just a vague sense of first=precedence). Clarity would be better, as would rules insisting that after the abstract the authors explain their relative contribution. Reading enough of those contribution disclaimers might influence peoples’ views.

  3. Christa L. says:

    I agree that we need a clear standard, a list of relative contributions, and to get rid of the et al bluebooking standard, but why alphabetical? Why not just let the authors determine who contributed more to the piece?
    I think for this to work, however, law journals first need to stop selecting on letter head bias, otherwise whoever has the best letterhead will continue to be listed first regardless of contribution.

  4. former AE says:

    My law review published an article from three law professors, and we listed their names in the order they gave. It may have been alphabetical, but in any event, I’m certain that the biggest “name” professor was not listed first.

    Also, isn’t the “et al.” thing only applicable if there are three or more? So if it’s just two, it’s always Balkin & Levinson — but if you hit three, then it could be Solove et al.

  5. dave hoffman says:

    AE: It’s true that the et al. rule applies only to 2+ authors, but that isn’t super helpful. If I were to write with, say, Balkin and Solove (no doubt about the constitutional aspects of privacy in dockets), Balkin would get the cite and Solove and I would not even be listed as authors. How does that make any sense at all? The primary purpose of citation is to enable the reader to find the source, but a secondary purpose is full attribution. In a world where we use citation analysis for many purposes, I don’t see any good reason to drop names.

    Christa: I agree. To be fair to HYS,they are basically anonymous review + peer check at this point.

  6. Ethan L. says:

    Of course “et al.” is a problem in a world where citation counts are currency. This wasn’t a big deal in the pre-Leiter days but is becoming one; the Bluebook will adapt, I’m sure.

    I don’t think ordering in published articles has much to do with the letterhead bias explanation: authors can easily re-adjust ordering once they get their acceptances. Ever wonder why articles seem to still be over the 35,000 word limit? Because professors trim to get their acceptances and bloat after the journal is committed. They can easily change ordering after they use name recognition to drive an acceptance.

    I agree that coordination could be helpful. But disclosures might not have their intended effect. Authors will probably just represent that they all contributed equally, which may or may not be true. Or they will produce an explanation that won’t really give an accurate sense of responsibilities to someone who hasn’t co-authored and lived through a real joint project. Or one co-author will take first authorship because they effectively control the project, even if the ideas and writing were equally attributable to all authors. That doesn’t translate well into a first note and actually will tend to create potential discord within the team. I tend to think any departure from alphabetical of one form or another calls for explanation, though as I’ve suggested, forcing a public one might have costs. Tenure and laterals committees will just have to try to get to the truth of relative contribution if they really care and when the work can actually be disaggregated. It isn’t always easy to say who did what: even if one author did most of the writing (after many ideas for the paper were produced by other on the team), another may have saved the team from a huge error in the write-up, earning her keep and making a contribution that was quite significant. Disclose that?

    There is one exception: when authors write together more than once, variation to control for first-author bias seems appropriate and should be encouraged. But that disclosure too would look odd: “The authors have been rotating their names over their last 5 papers to control for the cognitive biases of the reader to give the first author most of the credit.”

    Just some thoughts on a Friday, as I finish up work on two co-authored works and turn to a third.