Affirmative Action for Law Scholarship

There are several issues in this unfolding story about Scholastica, law review submissions, and “diversity” preferences. Let’s break them out.

  1. 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.
  2. 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?
  3. 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.
  4. 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.

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13 Responses

  1. Law Student says:

    As a law student, I have to wonder if the professors in the blawgosphere that are so adamantly against this practice are equally against law school admissions affirmative action programs. I know for Josh Blackman that is certainly the case, but my sense is that at least some of the outraged professors are supportive of affirmative action for minority applicants. If any professor of that ilk reads this, I would be interested to know why you distinguish between the two programs.

  2. Emp Discrim Prof says:

    I agree with many of the others that the outright use of race, gender, or sexual orientation to determine whether a to publish an article is disturbing. But my reasons are a bit different. I’m a female professor who writes about topics that I think tend to be coded “female” by law review editors, like employment discrimination, family law, feminist legal theory. I have no doubt that editors always know my gender, both from my name and the topics I write about. My impression, from talking with some editors over the years, is that many of them view these fields as niche fields that don’t belong in mainstream law reviews, and that because so many women and people of color tend to write in these fields, we often get pushed out of the mainstream journals. I like the idea of law reviews paying attention to whether their own biases regarding topic selection lead to disproportionately high rejection rates for groups who tend to write about certain subjects. Tracking race and gender stats (as well as topic stats) might help them to see if this is happening.

  3. Wanderer says:

    Law Student: absolutely. “Affirmative action” is simply a more gentle—and socially acceptable—way of saying “discrimination”.

  4. dave hoffman says:


    1. I really prefer folks on my comment threads to use their names. Standing behind your comments can only make them better.

    2. On another thread, we’ve gotten into how to distinguish affirmative action in hiring (and admissions) from scholarship. For one, of course, the goal of having a diverse legal profession seems worthwhile, while I can’t quite figure out how it helps anyone to have scholarship be selected on anything other than its merits, however defined. More importantly, at least schools have procedures in place for affirmative action (when they are working toward such ends) and such procedures have gone through legal review. That’s not the case here, I imagine.

    3. As for “emp. discrim. prof.”, assuming that person is actually who they claim to be, I think it’s correct that the combination of field + non-blind review does reveal gender. We can correct the second problem. The first problem is not as easy. But I think I’d like to see statistics on whether “mainstream” journals publish disproportionate numbers of “employment discrimination, family law, [and] feminist legal theory”, especially when controlling for factors like letterhead bias. My own view is that there’s no field apart from con law that DOESN’T think that journals are out to get them. Take contract law, for instance. I think contract articles outside of L&E are rarely accepted by “top” journals.

  5. dave hoffman says:

    Just to continue the last comment — “emp. discrim. prof.” seems to suggest that if law reviews were to disproportionately reject certain kinds of articles, and those articles were disproportionately written by women and people of color, then this would be evidence of bias. That’s of course possible, but it strikes me that without having some sort of good measure of what law journal editors are supposed to be picking for, I would want to be careful about drawing the conclusion, lest it lead us to conclude (as it has apparently led some editors to conclude) that what journals are really doing is doling out goodies which should be shared freely to all.

  6. Over on my blog, I point out that Scholastica is being sizeist by not including a category for those us who are calorically challenged.

    On a serious note, I agree with you. Although I placed my latest article via Scholastica, I’m boycotting it until they get rid of this widget.

  7. Without getting into the merits of this specific debate, I just wanted to note that this is the flip side of discrimination that gay and transgendered people routinely face, and it is a direct consequence of applying only rational basis review to laws that discriminate AGAINST sexual minorities. Without intermediate or strict scrutiny for sexual orientation discrimination, government is free to discriminate IN FAVOR of sexual minorities in ways that would never pass muster for race, including even using strict quotas. So any constitutional arguments against taking sexual orientation or gender identity into account are loser legal arguments unless one argues that it should be subject to heightened scrutiny (which would then allow all anti-same sex marriage bans to be struck down too). Posner has a great opinion discussing this that I excerpted in my textbook, Sexual Orientation, Gender Identity and the Constitution.

    Gays and lesbians likewise find it “unbelievably offensive” that their sexual orientation is taken into account through marriage laws and the like. Welcome to a small taste of what the lives of sexual minorities are like on a routine basis. It isn’t very nice, is it?

  8. BDG says:

    But Dave, isn’t your objection to the way the data are used, not to their collection? For example, these data could be used to determine whether existing practices have some disparate impact. They could allow us to compare outcomes between blind and non-blind journals, and see whether articles published in blind-review journals have significantly different demographics (e.g., because they don’t re-entrench any possible existing disparities in hiring).

    I therefore don’t think it’s fair to assume that using the widget equates to using demographics in article selection in the way you describe. For example, though I’d agree the review down the hall from me would like to identify aspects of their process that may have unwanted statistical effects on the pool of articles they ultimately consider closely, I have no reason to think that they consider race, gender, or orientation in specific acceptance decisions. And we had a meeting on selection criteria yesterday.

  9. dave hoffman says:

    Brian. I don’t know how I feel about just collecting data. On the one hand, the purposes you attribute to journals seem benign. (Better still to simply move to blind review, no?) On the other, who can trust journals to stay consistently on the right side of the line from year-to-year?

    Peter. An interesting point on the conlaw.

  10. And re-reading my earlier comments I just want to clarify that my “welcome” comment was not directed at Dave or to anyone in particular. It is more of a broad-based “welcome” to the world of taking one’s sexual orientation into account.

  11. Max says:


    Not necessarily better to move to blind review if (1) comparing “AA journals” to blind journals reveals effects of the sort that Emp Discrim Prof described; and (2) we, or at least the staff of a particular journal, decides that those effects are undesirable. (Do women write in niche fields [perhaps because they perceive more opportunity to make a name for themselves as opposed to struggling against a monolithic establishment], or are fields defined as niche because women write in them [the same way nursing has decreased in prestige, compensation, etc. as it has become a “female” field]?)

  12. Michael Teter says:

    What a great Con Law exam question: can the California Law Review (a state actor, presumably) use affirmative action in its article selection policies? How far does the “diversity in higher education” rationale of Grutter extend?

  13. Disabled Attorney says:

    I am a disabled attorney. Once I earned my JD, I spent years unemployed but not for want of trying. I applied for literally thousands of jobs and with the Army JAG. Without exception, I was rejected from each one. The scumbag proponents of “diversity” for gays and women should answer to the disabled. As a group, our poverty rate is over 25% (a rate comparable to American Indians) but no one, NO ONE is advocating for us.