In Defense of Law Review Affirmative Action

As you may have seen, the new Scholastica submission service allows law reviews to collect demographic information from authors. A flurry of blog posts has recently cropped up in response (including some in this space); as far as I can tell, they range from negative to negative to kinda-maybe-negative to negative to still negative. The most positive post I’ve seen comes from Michelle Meyer at the Faculty Lounge, who discusses whether Scholastica’s norms are like symposium selection norms, and in the process implies that Scholastica’s model might be okay. Michael Mannheimer at Prawfs also makes a sort of lukewarm defense that editors were probably doing this anyway.

But is it really the case that law review affirmative action would be a bad thing?

Some commenters have been quite harsh. One anonymous commenter at Prawfs writes that

I’ve heard that several top journals, most notably NYU, have begun weighing author “diversity” more heavily than ever before in making their publication decisions. At NYU, the gossip is that straight white male authors pretty much can’t get their articles accepted this year, and that the pieces NYU has recently taken have been of patchier quality than usual. Discussion of the author’s identity apparently overshadows discussion of the article’s substantive merits at final NYU committee meetings.

Is it really the case that journal norms have changed, shutting out deserving white and male authors, while presumably allowing undeserving women and nonwhite authors to misappropriate law review slots?

While I haven’t polled journals (yet!), Mannheimer’s initial intuition on the descriptive side is consistent with my own anecdotal observations. That is, I’m reasonably confident that some journal editors sometimes take an author’s race or gender into consideration in selecting articles. The practice doesn’t seem particularly consistent as I’ve observed it, but I’m positive it happens in some cases.

Does this practice result in white male authors being shut out of law review publication? That seems like a highly suspect empirical claim. To say the least, it does not mesh well with existing scholarship on the topic such as Cynthia Grant Bowman, Dorothy Roberts & Leonard S. Rubinowitz, Race and Gender in the Law Review, 100 Nw. U. L. Rev. 27, 44 (2006); Rachel J. Anderson, From Imperial Scholar to Imperial Student: Minimizing Bias in Article Evaluation by Law Reviews, 20 Hastings Women’s L.J. 197, 199, 203 (2009); Nancy Leong, A Noteworthy Absence 59 J. Legal Educ. 279 (2009); and especially Minna J. Kotkin, Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the “Top Ten” Law Reviews, 31 Women’s Rts. L. Rep. 385 (2010). (See also Bridget Crawford’s regular “Where are the Women?” feature at Feminist Law Professors.)

Scholars in the field have collected a large amount of data, and to summarize very briefly: There appears to be no empirical support for a claim that white male authors are systematically underrepresented in law review publications. In fact, the opposite is true.

Given this backdrop, should women and people of color be given extra consideration?

Of course, the idea of quotas or pluses seems unfair. Law reviews ought to be based on merit, the argument goes, rather than racial set-asides.

But the facial appeal to merit obscures the underlying reality: Law reviews have been practicing affirmative action for decades – affirmative action in favor of white people. How else could we explain the consistent overrepresentation of white men in law reviews?

To be clear, this pattern is almost certainly not primarily driven by conscious racial animus. I’m reasonably confident that most law review editors make decisions based on what they believe are sensible, neutral factors. But many of these facially neutral factors have the effect of stacking the deck against minority authors.

For instance, law review editors with whom I’ve spoken regularly use an author’s institutional affiliation as a signal — that is, they start from a position of letterhead bias. This strategy is facially neutral as to race and gender. But in fact, there are relatively few women and people of color at prestigious law schools. Remember Derrick Bell leaving in protest because Harvard refused to tenure a single woman of color? Things have improved somewhat since then; but the race and gender profile of faculty at top law schools remains skewed. Thus, letterhead bias is likely to have significant race and gender effects. And the relative paucity of women and people of color at higher-ranked law schools has another likely ripple effect, in that the continued existence of a “walk an article down the hall” avenue to publication reinforces the effect caused by broader issues of letterhead bias.

Another facially neutral factor is an author’s CV. What could be more objective than a track record of prior publications? But this also conceals significant race and gender effects. Prior publications may reflect letterhead bias, as set out above. In addition, if they cover more than a decade or two, author CVs will tend to reflect the demographic norms of a time when women and people of color were almost non-existent at many law schools. (Again: Derrick Bell, Harvard, and zero women of color.) Law faculty build reputations over decades of publication, and the result is that CVs, while facially neutral, will be likely to weigh against women and people of color.

Article citations are also facially neutral, but also reflect significant disparities, almost certainly because of some of the factors already mentioned. Just take a look at Brian Leiter’s list of top published law professors and count heads.

Finally, nearly every law review selection process involves judgment calls on the part of editors. I do not believe that most editors are deliberately biased against women or people of color. But judgment calls may reflect unconscious editor bias. Recent scholarship on implicit bias has demonstrated that many people are quicker to associate positive attributes with whiteness and maleness. These biases probably affect the editorial selection process.

They may be exacerbated by the fact that many law reviews have few women or minority students in editorial positions. My year at Columbia, 14 out of 44 editors were women. Do these numbers surprise you? They seem consistent with many major journal mastheads today. And while it is certainly not the case that all editors favor only articles by authors of their own racial group, it is not surprising that systematic underrepresentation on editorial boards leads to systematic underrepresentation in publication.

So, to sum up: Law reviews underpublish women and people of color; and facially neutral selection criteria build in blind spots that let this practice continue.

Which brings us to everyone’s favorite dead white man, Oliver Wendell Holmes. Holmes wrote that “The life of the law has not been logic, it has been experience.” And given that reality, the blind spot in law review publication norms is alarming. Because, consciously or not, law review literature has largely excluded the experience of women and people of color.

Of course, more than mere identitarianism is necessary. As scholars like Meera Deo and Rebecca K. Lee have shown, numerical diversity is a starting point, not a finish line.

But as long as scholarship by women and people of color is systematically undervalued, we are unlikely to ever see the experience of these groups represented in the discourse. And their experience matters. Justice Ruth Bader Ginsburg noted in a recent talk that the addition of women Justices changed discussion norms at the Court, as her female colleagues brought a different set of “life experience to the table.” “We grew up female and we help our colleagues understand things they might not understand,” she said, referring to a 1983 case where a 13 year old girl had been strip-searched at school. “At first the men joked about it, until I told them that there is a difference between the way a 13-year-old boy and girl feel. Then the joking stopped.”

This is why the presence of a Wise Latina on the Court matters so much. Not because Latinas are innately superior in some way; but because, in a country with tens of millions of women of color, it is unconscionable that the highest court would include no one with that set of experience. The voices of women and people of color are important and relevant; indeed, as the Supreme Court addresses issues of race and education, these voices have never been more vital.

Which is why I hope that journals do use Scholastica data, both to review their track record (as suggested by Sam Bagenstos) and also to affirmatively seek out work by members of underrepresented groups.

(Cross-posted at Feminist Law Professors.)

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43 Responses

  1. Publius says:

    THANK you.

    I’d like to hear your thoughts on “blind review” as well.

  2. Publius says:

    Anon: You wouldn’t. Everyone would think you were hetero, so you would enjoy the automatic privileges associated therewith. Can’t have your cake and eat it too.

  3. Youngprof says:


    Does it matter at all in your view that we’re talking about affirmative action here for people who are already quite privileged (perhaps not compared to other law professors but certainly society as a whole)? Let’s take your assumption that law reviews consciously or unconsciously discriminate against people of color. So a certain professor receives an offer from a law review that is ranked #89 as opposed to #49 in the U.S News rankings. Affirmative action will allow the individual to receive the placement that he or she actually deserved. This may be a good thing for the professor in question, but what is the benefit to society to have the professor shuttle from one great job to another (assuming better placements facilite mobility)? Whatever the professor’s placement, it is not as though affirmative action in this instance is actually facilitating diversity of thought or experience. I’m all for combatting even small incidents of injustice but without knowing more about the professor in question, should we really be concerned that he or she did not receive as great a placement as he or she might have expected?

  4. Youngprof,

    It’s absolutely true that all law professors are writing from a position of relative privilege.

    I was trying to make a slightly different argument: I think that legal scholarship matters; more highly-ranked journals have wider circulation; and thus, legal discourse suffers from problematic blind spots if some groups are underrepresented.

    For instance, if Harvard or Columbia never publish work by a woman, they’ll never hear the perspective of someone who has actually been pregnant. As authors like Martha Chamallas and Jenny Wriggins have shown, male jurists routinely ignore women’s experience in very problematic ways. Law reviews are the major vehicle for developing legal theory which ultimately impacts courts; and so it is important that these vehicles include perspectives from these underrepresented groups.

  5. Lily Kerr says:

    Excellent article, one that resonates with my own experience in the academy. It’s surprising to me that those opposed to your viewpoint can be so easily dismissive without so much as an intelligent critique or argument of their own, as evidenced by some of the comments. I suppose it goes to just how knee-jerk and un-thought-out our prejudices are.

    (I would listen if someone wanted to argue that, “Even if our ‘blind’ processes aren’t blind, this is a problematic practice to use in its stead.” I would listen if someone wanted to argue, “Our ‘blind’ processes may not be perfect but they’re the best option or, at least, better than the one proposed.” I would even listen to the argument that, “Our ‘blind’ processes aren’t as ‘un-blind’ as one would think.” But to simply hear someone say that they want the “special treatment” shown to minorities? It almost makes me wish I had the power to let them experience that “special treatment” for themselves. Perhaps their responses wouldn’t be so blithe and dismissive anymore.

    And, as to the exams being accompanied by gender/race information? I assume this is meant as a satirical question? What if it was done, though? What if it was found that exams were written in such a way that minorities and women systematically underperformed when compared to their white male counterparts? Which is more likely: that all white men are just smarter than minorities and women? [As a woman with a 165 IQ, I would hope that others would find that suggestion as stomach-turning as I do.] Or that there is something wrong with the test? And if there is something wrong with the test, should it be left as it is? Or should it be changed? And if the test cannot be changed right away? Is it fair to let the skewed numbers stand? The original suggestion might not be as ridiculous as you’d expect.)

  6. Anon 4 says:

    It’s entertaining that so many professors would come out against an affirmative action policy when it could actually affect their lives. I wish students could also get such a benefit.

  7. Lily Kerr says:

    [I’d like to note that when I wrote my own comment, there were only 6 comments present, as, thank you Youngprof, you are actually making an argument that has some merit, whether or not I agree with it (This is not me saying that I do or don’t agree, either. I simply haven’t had time to read and think it through yet, so I don’t want to take a position yet.)]

  8. Piper says:

    QUOTE: “But the facial appeal to merit obscures the underlying reality: Law reviews have been practicing affirmative action for decades – affirmative action in favor of white people. How else could we explain the consistent overrepresentation of white men in law reviews?”

    Well, we could explain it by noting that white male law students are noticeably more intelligent than law students of diversity-ness:

    One might object that average scores on the pre-admission LSAT don’t fairly predict the average performance of law students (and the law professors eventually drawn from their ranks) because not all applicants are offered admission. However, modern American law schools practice affirmative action in admissions (and faculty appointments), which means basically that they admit a quota of the best applicants of each race. This practice produces the well-known bar-exam “gap” which is only very slightly smaller (due to slight restriction of range) than the LSAT gap.

    Indeed, the LSAT and bar exams both reveal the ~1SD mental black-white academic ability gap which has been referred to as “the fundamental constant of American sociology” since it has persisted in all test data gathered for decades by all methods and all investigators ( see e.g., ).

    The gap of about 1SD means that black law students are less likely, on average, to produce good law-review papers, and the difference is not the difference in raw population shares, but the difference in areas under different parts of the bell curve. Suppose 16 out of 100 white law students write papers worthy of publication– that is, those white law students who are 1 SD or more above white law-student average ability. Well, 1SD above white average ability is 2SD above black average ability* so only 2 or 3 out of 100 black law students will produce papers of comparable quality. That is the situation for not-very-selective journals. Consider the situation at a big-name journal: perhaps only 3 white law students in 100 (30/1000) can write well enough to publish a paper in such a journal. In that case, you will find only about 0.1 black law student out of every 100 (1/1000) writing at that level. Indeed, we can calculate the amount of “affirmative action bias” at top journals just by comparing their rejection rates for people or more or less diversity-ness. (See for some graphical help with the math.)

    Though the ability “gap” between males and females is very much smaller than the B-W gap, it does exist (see references supra) and its effects are, of course, more salient at the tails of the bell curve, which is to say, at the gates of the most selective law reviews and so-forth.

    Law review affirmative action deprives readers of the best papers (since overall page count is constrained, publishing inferior papers to favor their authors excludes better papers from less “diverse” authors) and harms disfavored (mainly white male) authors by subjecting them to disparate-treatment discrimination simpliciter.

    *I neglect some minor complexity here around different SD’s for different groups and confusing sub-group with composite means, SD’s, etc.. It’s not material.

  9. Anon Prof says:

    I thought I would test the empirical claim made by an anonymous commenter quoted in the OP that NYU is practicing some kind of affirmative action in its article selection (hard to test the claim that the articles have downgraded in quality). I looked at articles and essays published in Volume 87 (the most recent full volume of the NYU L Rev) and Volume 78 (from 2003) and noted where possible gender and race. A few caveats: obviously, I could not look at the submission pool, only those accepted and published in the NYU L Rev. I also could not look at the articles that were accepted at NYU but published somewhere else. I did not dig into sexuality, although I suppose I could have. And of course the selection of Volumes 87 and 78 are completely random. The numbers for Volume 78 were 7 women and 11 men, 16 white and 1 nonwhite (I could not identify the race of one of the authors). For Volume 87 there were 7 women and 10 men, 10 white and 7 nonwhite.

    I would not conclude too much from these numbers, other than the anonymous commenter’s hyperbole has an empirical basis at least for race (putting aside the claim about article quality). But if one is troubled by the racial numbers for Volume 87 then it is hard not also to be troubled by the racial numbers for Volume 78. And if one thinks that the racial numbers in Volume 87 should make us think that the quality of the articles is lower, I think we would have to say the same about Volume 78 (unless one subscribes to the view that a purely “merit”-based submission process would tend to result in entirely white authors being selected — I will not buy a ticket for that bus). As a straight white man myself, I am not sure how I feel about an AA policy being instituted at law reviews. I would support it if it is a conscious effort to increase the diversity of viewpoints that are represented in the articles published in law reviews (I would hope, however, that there also would be an effort to increase the voices of those writing from practice, those writing from low-ranked schools etc.) I would support it if the goal is to make up for the journal’s bias in the past (or for bias in the academy in general). It still doesn’t feel great to think that my article might be evaluated on that basis, but race and gender plays such a large role in so many other evaluations that tend to favor me because of my skin color and sex that I think I can live with it.

    I do find this idea (implicit in the meritocratic critique that seems to be fueling many of the reactions to the Scholastica hullabaloo) that we can clearly identify which articles are more important or better than others, or that there is some tiny subset of submitted articles that belong in the top 10 journals, is pretty ludicrous. When I read articles published in the top 25 or 30 law reviews, I find it hard to see a clear distinction between the top 10 and the rest. There are a limited amount of spots, we all want them, but there are many more excellent articles than spots. Lots of arbitrary factors will make up the placement determination — it is hard to say that using race, on balance, causes that much harm and it might have some benefits.

  10. Brett Bellmore says:

    “legal discourse suffers from problematic blind spots if some groups are underrepresented.”

    But this is an argument for *ideological* affirmative action, not melanin and X chromosome based affirmative action. It seems quite likely that, to the extent ‘minorities’ differ on a viewpoint basis from the majorities at law schools, they simply hyper-represent views which are already over-represented among academics compared to the population at large, making legal discourse LESS diverse, not more so. Enlarging the blind spots academics already suffer from.

    If you want a genuinely diverse discourse, race and sex are a terrible proxy for what people think.

  11. Dave Hoffman says:

    Hi Kaimi

    Put aside the merits of the “empirical” debate. (Which we can return to later.)

    If law reviews are to give preferences, can you maybe explore the following questions:
    (1) Why is sexual orientation on the list?
    (2) Which is more important, race or gender?
    (3) Should law reviews be more explicit about what they are doing? (Right now, it’s unclear who is doing what.)
    (4) If you were recommending a policy, would you prefer straight preferences over blind review?
    (5) How do you feel about these decisions being made in unstructured ways, without clear guidelines, and without the input of university counsel’s office?

  12. marshallJ says:

    Is there a hidden trap here for the journals themselves and even the writers who accept their offers? Unlike an offer of employment, money grant, admission to a school, the *only* benefit of top law review placement is that it is perceived (rightly or wrongly) as a proxy for merit. Journals that become known for making selections on criteria other than merit weaken the one benefit they have to bestow – particularly when they bestow that benefit on the perceived-to-be favored group. This already happens when law reviews publish articles from their own faculty and VAPs – those placements are heavily discounted as merit proxies.

  13. A.J. Sutter says:

    @Piper: There are some false or unfounded assumptions in your argument. One is that the pool of paper-writers is the same as the pool of students and/or bar examinees. Another is that, even if the pools were the same, LSAT or bar exam performance correlates with quality of papers in some meaningful way. Another is that a performance differential on LSAT or bar exams indicates a corresponding differential in “mental” ability or intelligence. Another is that “big-name” law journals, or any student-run law journals for that matter, allocate spots only on the basis of quality, which the students allocating them are capable of reliably discerning.

  14. Publius says:

    > Anon Prof wrote: (unless one subscribes to the view that a purely “merit”- >based submission process would tend to result in entirely white authors >being selected — I will not buy a ticket for that bus)

    What of the argument that (i) journals, and especially flagship law reviews, tend to favor certain topics; (ii) placement in flagship law reviews is more prestigious and career-boosting than placement in secondary specialty journals; (iii) the topics favored by the editorial staff of those journals are fields dominated by old straight white men and very hard for a minority to break into (let’s say, constitutional law, civil procedure, etc.); and (iv) women and racial minorities tend to write about topics like critical race theory, employment discrimination, and family law, which might be equally “meritorious” as articles but don’t make it through selection because the journal editorial staff (a) isn’t interested in the topics or (b) doesn’t know enough about the topics to assess their merits or whether they should be interested in them — perhaps in part if/because the journal staff is itself made up mostly of straight white males.

    >Brett Bellmore wrote: “legal discourse suffers from problematic blind spots if >some groups are underrepresented.”

    >But this is an argument for *ideological* affirmative action, not melanin and >X chromosome based affirmative action.

    It could be an argument for ideological affirmative action, but it typically is not, and this is therefore a straw man. As pointed out earlier in the comments, if Columbia Law Review never publishes anything by a woman author, they necessarily never will publish anything by someone who has been pregnant (or who could become pregnant — certainly not all female authors have been pregnant). That reality of experience must inform the author’s views. What her conclusions and resulting ideology are may vary widely from author to author. Selecting for a woman author allows views informed by that experience to be presented. It thus both (1) is not an argument for ideological affirmative action, as the resulting ideologies may diverge widely; and (2) is an argument for affirmative action on the basis of something other than ideology, because it is important to have and consider the views of people who face certain inherent realities that a significant portion of the population, but not all of it, also faces.

  15. Publius says:

    To my prior response to Brett Bellmore, I should add: (i) pregnancy is of course not the only salient characteristic of being a female author; and (ii) to the extent we pretend for whatever reason that it is, I anticipate a counterargument along the lines of “pregnancy has nothing to do with preferred procedures for issuing C-class stocks in a corporation,” which I will concede as probably correct.

  16. Mike says:

    This may seem like a shallow reaction to a topic in which many are investing effort, but I leave that for you to judge.

    1. Having read some, but not all, of the data on publishing patterns, I don’t find the empirical case — for a “problem” in publishing that needs redressing, either due to overrepresentation of privileged classes or reverse discrimination — convincing in the least. What I’ve seen does so poor a job of developing a data set or taking out other variables that it doesn’t merit sustained discussion, save by those convinced by their priors about the state of the world. Just try, for example, to define the characteristics that require redress and those that don’t, particularly while trying to factor into account the existence of discrimination or reverse-discrimination in prior phases of credentialing and academic achievement.

    2. This is so unlike affirmative action in employment or admissions in terms of its stakes that it invites ridicule. I veer from thinking “Why not affirmative action, given the non-meritocratic nature of the exercise anyway?” to “Why affirmative action, given the theoretical responsibility to promote scientific quality and rescue what we can of rigor in legal publishing?” before remembering what a petty and insular topic this is. We speak here of a world in which everything that doesn’t stink like a weeks-old fish is published in a journal affiliated with a university wouldn’t credit the journal toward tenure in any other field, with the possible exception of exercise sciences. The true merit can be evaluated by other means; the merit signal under discussion matters almost solely for purposes of initial hiring or lateral moves.

    3. It’s hard to think of a more negative scheme than one that solicits information enabling affirmative action without meaningfully delivering it — courtesy of Scholastica, Justice Thomas’s worst fantasies about stigma are realized without anyone necessarily being helped. Now aspersions will be cast on those publishing in leading law reviews even if their characteristics were not declared or were declared but never considered.

  17. Publius says:

    I think the idea of “scientific quality” when it comes to legal academia is a complete joke.

  18. Brett Bellmore says:

    Publius, while it’s trivially true that in the normal course of events, only women undergo pregnancy, it’s equally true that not only women are feminists. In an environment already over-representing feminist viewpoints, affirmative action in favor of people presumed to be feminists can only reduce viewpoint diversity, not enhance it.

    Your other point is well taken: It’s hard to imagine very many issues in law which hinge on the subjective experience of pregnancy, and it is utterly irrelevant to most topics.

  19. Sam Bagenstos says:


    It’s Kaimi’s thread, and he’s your coblogger, so he will no doubt feel free to answer or not your questions as he sees fit. As you’re the one who’s so exercised about Scholastica/Cal/NYU’s offense to meritocracy, though, don’t you have to answer the questions implicit in the last paragraph of Anon Prof #13’s comment? That is: What are the criteria you use to rank pieces on the basis of merit? Why do you use those criteria instead of other plausible criteria of merit? Do you think others use different criteria of merit? Are they wrong to do so, or is this a matter in which pluralism should rule? How do you weigh and balance the different criteria of merit that you do employ — e.g., if you value importance of insight and clarity of writing, how do you rank a piece that contains extremely important insights but is written dreadfully unclearly? When you rank pieces using the criteria that you choose to employ, how often do you find that you can with confidence give a unique ranking to each piece — i.e., do you find that you can pick a single first-best, second-best, third-best, all the way to nth-best piece, or do you find that there are a bunch of pieces that you would rank among the best, a bunch you would rank a bit lower, and so on? Are your criteria of merit stated so precisely that you have confidence that your rankings would be the same as those of any other intelligent and informed person applying them? (Many people may value good writing, for example, but some people think of good writing as writing that calls attention to its lyricism, while others think of good writing as precisely that writing that fades into the background.)

    You could still believe — and have made it clear that you do believe — that employing “diversity” factors to choose pieces is inconsistent with merit-based selection. That’s a totally reasonable position, and one I might share. (I think Michelle has raised a very challenging problem for those who would take that position, and I haven’t worked out my thoughts on it.) But the fervency and even anger that has accompanied the critique of Scholastica/Cal/NYU as subverting meritocracy (“Boycott them until they remove the questions!”) can be justified, it seems to me, only if the use of diversity factors is leading to the selection of pieces that are clearly less meritorious. But, it also seems to me, that can be true only if there are relatively clear, agreed-upon, and specifically-stated criteria of merit. So I’d be interested in what everyone’s criteria are.

  20. Mike says:

    Sam, since it’s question time . . .

    You say the meritocracy critique (or perhaps you limit yourself solely to its intensity, which is far less interesting) “only if the use of diversity factors is leading to the selection of pieces that are clearly less meritorious,” and this “can be true only if there are relatively clear, agreed-upon, and specifically-stated criteria of merit.”

    Is that how you think the inquiry should be framed? Isn’t it more balanced to inquire simultaneously if “there are relatively clear, agreed-upon, and specifically-stated criteria of [diversity]”? And ultimately, whether the resulting yield in terms of diversity is greater than the yield in terms of merit? Otherwise this gets decided on which value-promotion is put to its proof first, since I think both will struggle.

  21. anon says:

    Sam is making a “it takes a theory to beat a theory” move. But it doesn’t take a theory to beat a clearly wrong theory. And what people are arguing is that, however difficult it is to define “merit,” race and sex and sexual orientation are not part of the concept. It is a cop-out to say that, since in close cases we can’t tell whether article A or article B is better on the criterion of “merit,” we can just use race and sex and sexual orientation as a tie-breaker. We surely wouldn’t accept that rationale if the tie was broken in the other direction.

  22. anon says:

    Or in other words, I think everyone would reject this proposition: “But the fervency and even anger that has accompanied the critique of Scholastica/Cal/NYU as subverting meritocracy (“Boycott them until they remove the questions!”) can be justified, it seems to me, only if the [discrimination in favor of straight white males] is leading to the selection of pieces that are clearly less meritorious.” As an analytic argument, I don’t see how it is different from what Sam argued.

  23. Orin Kerr says:

    I think marshallj makes an important point: The main reason people prefer different journals is prestige, and the prestige of a journal depends in part on the perceived quality of articles it publishes. So, on one hand, journals are free to select articles on whatever grounds they want. It’s entirely up to them: They can pick articles out of a hat if they like. On the other hand, the prestige of the journal will depend in part on the success of the editors at picking top articles to publish, and the prestige of placing in that journal will vary based on its perceived quality and its perceived article selection practices. Law reviews are free to decide what articles to publish; they just have to decide if that choice involves a tradeoff between perceived quality and other goals, and then decide if they are willing to make that tradeoff.

  24. Sam Bagenstos says:

    In response to anon #26, I actually think there are lots of analytic reasons why one might think your rewritten version of what I wrote is different from what I wrote. You might, for example, agree with Kaimi’s argument that taking account of diversity factors helps to overcome existing and unjustified biases that have crowded out merit in a way that discrimination in favor of straight white males would not. You might think that law reviews, rather than giving gold stars to authors for a job well done, are in the business of advancing discourse in some way that is aided rather than impeded by publishing a diverse authorship. Or you might distinguish the statements analytically in lots of other ways.

    Of course, you might just hold to a strong anti-classification principle in the context of race, sex, or sexual orientation, in which any taking account of those characteristics is equally wrongful. For those who hold that position, your rewritten version of my statement is analytically identical to my statement. I’m sure some of the people who are so upset with Scholastica/Cal/NYU hold to such a strong anti-classification principle, but what prompted me to write is that I don’t think all of them do. Otherwise, they’d be saying things like this: Boycott every law school that uses race-based affirmative action in admissions until they follow the lead of California and Michigan and change that policy! Or they’d find Michelle’s example of diverse symposium invitations just as problematic as whatever Scholastica, Cal, and NYU are doing. If one doesn’t hold to such a strong anti-classification principle, I was positing, the only reason one could be so angry about what S/C/N are doing — not just disagreeing with it but being so angry about it — is if one thinks it is leading to some significant subversion of merit in article-selection outcomes. But if Dave et al. want to say that they think that all uses of race, sex, and sexual orientation in decisionmaking are equally impermissible, that would be a complete answer to me. Lots of reasonable people hold that position — but lots of reasonable people don’t. So if the argument is based on such a strong anti-classification principle, then the folks making it should accept that there are a lot of people it won’t persuade. But it certainly holds up analytically.

    In response to Mike #24, I should say that my basic sympathies are with a version of Orin’s argument here (though I don’t know if he’d agree with where I take it). That is, there are lots of plausible understandings of merit, and there are lots of plausible understandings of diversity — and, as I suggested in the first paragraph, there are lots of plausible understandings of the purpose of a journal, which may or may not embrace merit OR diversity — so I’m perfectly content to have lots of different journals apply different understandings of these things, and let the market (that is, educated readers like us) sort it out.

    Which is why, in response to anon #25, I think the folks who are so upset with Scholastica/Cal/NYU have an obligation to defend their premises here. They’re the ones who are treating it as obvious that taking account of diversity factors in article selection subverts whatever a journal should be doing. I think they are relying on a plausible but hardly the only reasonable understanding of what a journal should be doing. If they want to treat theirs as the only reasonable understanding of what is the purpose of a journal and what is the content of the merit ideal, the folks who are so upset with S/C/N should explain why that is so.

    I expect I won’t say more on this — I’ve burdened you enough already! But I do think Kaimi has raised important arguments here.

  25. Ben H. says:

    Orin, this point is entirely correct insofar as a distinction between merit and racial/gender factors can be maintained. But I understand the core of Kaimipono’s point to be that the generally accepted conception of a piece’s “merit” incorporates all sorts of biases, which have nothing to do with merit and which actually favor straight, white men. This affirmative action in favor of white men, as the post suggests, has made scholarship worse, even un-meritorious.

    The best way to shake this deeply entrenched problem, one might suggest, is to force the consideration of racial and gender factors that cut against the systemic bias. Thus, the effect of considering “non-merit-based” factors would hopefully be *better* scholarship, because selection is no longer dominated by a deeply flawed paradigm. The long-run effect might be to reconfigure one’s conception of merit altogether.

    But, as you point out, there is also a distinction between actual merit and perceived merit. A law journal’s prestige will doubtless suffer among observers that insist upon existing understandings of scholarly merit. This is certainly a tradeoff, one which should be undertaken with both conviction and courage.

  26. Publius says:

    Brett, you’re assuming that the viewpoints of non-women who ally themselves with the views of feminist women are valuable to the same extent. Also, certainly not all women are feminists, and many people, female and not, hold divergent views on what it means to be a feminist and what the goals of feminism are.

    And again, this isn’t supposed to be about ideology, although you’re trying to take it down that road again. Speaking of, do you have data showing that feminist viewpoints are already “over-represented” in top-placing legal academia?

  27. Mike says:

    I wouldn’t have any objection at all to a law review, of whatever (previous) level of distinction, deciding to privilege diversity. So I too would be fine with what Sam says: “I’m perfectly content to have lots of different journals apply different understandings of these things, and let the market (that is, educated readers like us) sort it out.”

    We might differ, though, in terms of what we in the market would like to see in terms of clearly articulated policies. What I’m most concerned about is with a scheme in which journals *might* be exercising diversity preferences, because they solicit that information, but not in fact doing it. This stigmatizes/confounds without any genuine advancement of diversity. And I think what Scholastica is doing is putting journals and potential authors in that situation without thinking about it.

  28. Anon Prof says:

    Publius, I am not sure we disagree. I was simply making the point that if one concludes from the racial makeup of authors published in recent NYU volumes that the quality of the articles has decreased, I think one would draw a similar conclusion about the quality of the articles from 10 years ago. Unless one is going to argue that white authors will do better the more “merit”-based a selection system, and also that the NYU journals of ten years ago were better at selecting on “merit.” I personally would not go along with such an argument, but I think that those who are outraged about the alleged use of AA now should also be outraged about the nearly exclusively white authorship found in NYU’s pages ten years ago. And just for kicks, I went back to Volume 77 (from 2002), and found similar numbers as Volume 78: 13 men and 8 women; 20 white and 1 nonwhite. I do not know what the racial makeup of legal scholars in general was in 2002 and 2003, or the makeup of those submitting to NYU, but those numbers are pretty bleak. So if NYU is now engaging in AA, perhaps it is to make up for a past selection system that resulted in exclusion of nonwhites, presumably unintentional.

    All this said, I agree with some of the commenters that transparency would be great, even if it might be unrealistic to expect given the general opacity of the submission and acceptance process. And I also agree that one side benefit of this discussion might be to get people to focus less on placement and more on the actual quality of a published article, regardless of who wrote it or where it ended up. But that, I realize, is also unlikely.

  29. dave hoffman says:

    Hi Sam

    1. I didn’t respond to Anon Prof 13 because I don’t have reason to trust numbers put out by an anonymous commentator, and didn’t have time to check them myself. I thought it’d be worthwhile to post some questions for Kaimi which may push him on the assertions made in the post since he, unlike the anonymous commentators, is putting his name behind his arguments. (I don’t say that to insult the anonymous commentators…but we all know that this is a tough area to write about, and folks who are putting their name behind their arguments it seems to me get first crack at responses.)

    2. I think part of what you see as intensity is really surprise. I understand the reasons why law schools/colleges/employers engage in race/gender/sexual orientation preferences. I tend to find those reasons unpersuasive. (Or, really, I think they need to be very strongly limited to particular contexts and moments.) It had never occurred to me that journals – and law student boards – were engaging in the same kind of selection practices. I had thought that journals were trying to maximize article quality – and, as “anon 25” wrote, quality is categorically not about author identity. So, essentially, I thought law reviews in the best possible world were trying to approximate blind review. They fail. But that’s what they should be trying to do.

    3. The fact that merit is slippery doesn’t mean that articles should be selected based on who wrote them, if the goal of the journal is to add to the world of ideas. One can select for diverse ideas and points of view without going behind the veil, I’d think.

    4. The reason I was upset with Scholastica was severalfold: (i) in the original design, since partially abandoned, they asked for everyone’s information regardless of whether particular journals requested it; (ii) they made it very unclear which journals were and were not requesting information, which of course makes it tougher to give market signals as Sam suggests we ought to; (iii) they seemed to be pushing the information on journals – based on an EiC correspondence I got. Now maybe they’ve backed away from any or all of these positions. But it struck me that the original response (“we’re just giving journals what they want”) was inadequate, given the dominant affect of architecture and design on how people will behave.

    5. At the end of the day, I’m with Kerr: if journals want to engage in affirmative action selection, they ought to do whatever they like, so long as it is very clear to submitting authors what they are doing. That’s if it is legal in the state where they are operating. (I honestly don’t know enough about California law to endorse the proposition, made here and elsewhere, that California Law Review is clearly violating State Law.) The previous regime it seemed to me obscured how selection happens; Scholastica has lifted the veil but imperfectly. Transparency would go a long way to curing the problem here.

  30. Orin Kerr says:

    Ben H, what you describe is not affirmative action: It’s just another conception of merit. If a student editor reads an article by someone who happens to be of a particular race of gender, and that student thinks to that the article is the best they have read based on their own vision of merit, then no affirmative action is needed to select that article.

  31. Dave Hoffman says:

    Just to be clearer still – I agree with Mike. Whoever that is.

  32. Ben H. says:

    Thanks, Orin. Perhaps I wasn’t clear. I was referring to Kaimipono’s argument in the post above that law reviews have for years been practicing “affirmative action in favor of white people.” This view has important consequences for marshallj’s view, endorsed in your post, that we may effectively distinguish between judging on “merit” and on “criteria other than merit.” (marshallJ’s words).

    It seems to me (and I am willing to be corrected by the author) that the force of the original post lies precisely in problematizing this distinction. That is, judging an article according to its “merit” is a practice that is structurally biased against minority scholars.

    For example, doubtless you and I disagree about what precisely constitutes the “merit” of a particular article. But when either of us engages in an ostensibly race-neutral adjudication of an article on its “merits” alone, the argument goes, you and I would both be indulging in the same set of structural biases. Such biases might include rigid but unsupportable distinctions between “race neutral” and “race conscious,” or between logical analysis and emotion/empathy. These divisions, the argument continues, work to retrench existing power structures at the expense of minorities.

    The second premise of the argument is equally important. Because these structural biases are deeply entrenched in the practice of the legal academy, the best way to correct for them is to force reviewers to consider “non-merits” criteria, such as race and gender. Doing so provides a crude but potentially effective corrective against systemic bias. And it *does* resemble what is typically termed “affirmative action.”

    This is why your point about tradeoffs needs qualification. Yes, for observers of the journal world, there appears to be a shift from “merits review” to “criteria other than merits.” But, if I’m right, Kaimipono is suggesting that the practice of “merits review” reflects systemic biases, and has a problematic relationship to a piece’s actual quality. The deployment of race and gender criteria is actually seeking to correct this bias, and to spur a more genuine merits review.

  33. Orin Kerr says:

    Ben H,

    If that argument is true, then we should be able to document that the articles placed in a particular journal by white men are on average of lower quality — at least when judged by an enlightened perspective of quality — than the articles published in that journal by women and/or minorities. In other words, instead of hypothesizing that this is true, we should be able to show it with real examples of real articles by real people and their real names. In my experience, though, no one tries to document the dynamic with actual examples: Instead the argument is posited at a high level of abstraction as a possible theory. The failure to make the case with any specific examples speaks loudly, I think.

    Of course, it’s possible that our understandings of merit are in some deep sense incorrect. We might falsely believe that (say) Richard Posner or Cass Sunstein is a “good scholar”, when if we were more enlightened, we would see that they are only good from the narrow white male perspective and are actually pretty lousy when viewed from the perspective of Deeper Truth. But if that’s the case, then we should still be able to point to examples of scholarship that we falsely think is good and compare it to scholarship that we falsely think is bad. At that point we can have a real debate about what merit means, and we can either decide that we had it right all along or we were wrong. But, either way, the argument is best made with specific examples rather than abstraction.

    I suppose the extreme version of the argument is that we actually have no idea what merit means, and that we can only reach true merit by configuring the system to reach outcomes of proportionality with the population. That is, we have to realize that all of our beliefs about merit are wrong. Maybe Yale has a better faculty than Cooley. But maybe Cooley has a better faculty than Yale. We can’t possibly know, as our sense of “merit” has no significance. If that’s the case, then the remedy if to immediately disband all law reviews, as the notion that one article is “better” than another is false.

  34. Piper says:

    Thank you very much, Professor Kerr.

    When symphony orchestras started giving candidates “blind” auditions (candidates played around the corner, or behind a gauze screen, out of sight of the judges), the proportion of women candidates offered orchestra seats went up a lot. It was shown dramatically that judging had previously been sexist, and all agreed in retrospect that musical merit had not been served until the judges were deprived of the opportunity to exercise bias by intentionally depriving them of the information (irrelevant to the real question of musical merit) that the judges needed to act wrongly– the sex of the candidates.

    It is very unlikely that giving law review editors the exact information (sex, race, sexual orientation, age, etc.– irrelevant to any real question of academic merit) that they need to misbehave will produce any result other than promoting the practice of invidious discrimination. If an article has academic merit, that is ascertainable without reference to the witer’s sex or race or whatever.

    To claim otherwise is sexist, racist, etc. because such claim can only be true if people of one race or sex or whatever really are inherently better scholars (in some field) than people of other races, etc. An assertion that whites write better top corporate law papers is racist; it amounts to a claim that black scholars cannot even learn how to write top corporate-law papers. An assertion that women write better top family-law papers is sexist; it amounts to a claim that men cannot even learn how to write top family-law papers. A claim that ANY paper may best be judged by the race, sex, or other immutable characteristic of its writer rather than by its content is racist and sexist and ableist and every other kind of -ist and should not be tolerated.

  35. Brett Bellmore says:

    “An assertion that whites write better top corporate law papers is racist;”

    An assertion that “whites write better top corporate law papers”, (Assuming this is meant as a statistical rule.) is empirical. “Whites write better top corporate law papers, you’re not white, he is, so his paper is better, and I don’t need to read it to know that.” is racist.

    It’s an important distinction: One is a claim about empirical reality, and entirely capable of being true, just as a claim that “whites are less likely to suffer from hypertension than blacks” is capable of being true.

    The other is a claim that the immutable group membership is all you need to know to judge an individual, a denial that individuals are entitled to be judged on their own individual merits.

    The real irony here is that, once you understand this distinction, you realize that affirmative action is often itself justified by racist reasoning. “Whites are a privileged class, you’re white, therefore you’re privileged.” “Blacks are discriminated against, you’re black, therefore you’ve suffered from discrimination.”

  36. mj says:

    Like most commentators over the past week, I do not like the idea of race and gender factoring into the article selection process. Article selection should be based on merit.

    But what troubles me is that none of the opponents of this policy seems to be troubled by the other types of non-merit-based schemes, activities, and practices which enter into the article selection process each season, including:

    1. “Walking a paper down” to the LR;
    2. Sending an email to the LR to “talk up” a paper or author;
    3. Using the blogosphere to talk up one’s own paper and to increase SSRN hits;
    4. Related to #3, asking for an immediate guest stint on a blog during the expedite process to boost SSRN hits to get a better placement; and
    5. To rely on one’s former position as EIC or Articles Editor to exert undue influence on the current LR staff

    Given all of these activities, it’s amazing that anyone who simply submits a good article to a T20 law review w/o playing games has any shot of getting an offer.

  37. Mike says:

    One reason this discussion is so formless and inconclusive is because there’s no attention to magnitude — nor can there be, really. There are many ways in which this ostensibly meritocratic system, like all ostensibly meritocratic systems, is compromised: inexpert editors, letterhead bias, etc. In my judgment, the lack of expertise is the greatest problem; the five practices mj cites at 9:25 are, by comparison, trivial. What’s the individual or sum effect of these compromises? I can’t say, but judgments like “it’s amazing that anyone who simply submits a good article to a T20 law review w/o playing games has any shot of getting an offer” are in my experience badly exaggerated. Sorry to say it, but I think any law review embracing a diversity criterion is or would also be imperfect at achieving that objective, to the point where many would-be adherents could equally despair of its pursuit.

    I think a law review can credibly respond to claims that diversity should be taken into account by saying something like this: “Thanks, we always like having fresh voices and underpresented topics and vantages in our volume, and we do that while focusing first and foremost on merit as we best perceive it.” (That’s indeed how I imagine most *would* respond, though it’s open to question whether they do well on either front.) I also think a law review can respond by saying “Thanks, diversity is sufficiently important that we’re going to take that into account in publishing even if our best perception of merit is compromised.” (I bet they could promote this ideal based on information already available to them with respect to gender and race, less so with sexual orientation or disability.)

    While I think there’s very little daylight between these approaches, I don’t think a law review pursuing either paradigm should be bullied out of it by claims that merit or diversity is unattainable or has no place in publishing. My principal objection to the Scholastica info is that, unless law reviews do something with it, “diverse” authors will have their merit badges discounted without achieving any real advantage in article section.

    What if some more clearly embraced diversity-favoring policies? We might have interesting submission effects. Maybe “diverse” authors would flock to it supportively; maybe they would avoid it because of stigmatization; maybe non-“diverse” authors would avoid it for reasons of relative difficulty or maybe they would seek it out because it would show that their article was relatively good.

    I don’t think we will ever know. My prediction is that journals will continue, as before, to pay attention to diversity issues (highly erratically) and continue to focus on merit (highly imperfectly), and that none will be able to articulate in any coherent way how these two objectives are reconciled. The controversy about Scholastica info seems like a particularly overt reminder of this broader issue, but one lacking in any material significance for it.

  38. Piper says:

    Thanks Brett Bellmore #39, you made that much more clear than I did.

  39. Hello, and sorry for the delay. I was on the road for a short while, and I seem to be late to my own party. A lot of fantastic comments so far.

    A few initial thoughts, more to follow.

    1. Blind review (as discussed in several comments) raises a complicated set of potential concerns. I think it would probably be a net gain, but I’m not completely sure. I’ll develop that topic in a follow up post.

    2. Lily (9), you’ve articulated very well a point that I should have made more clear. I think there are reasonable arguments to be made on both sides. One could certainly argue that the Scholastica implementation is problematically executed.

    But it was striking to me that initial reactions all seemed to start from the baseline that any sort of race or gender preference was obviously wrong on the face of it. And I don’t accept that baseline. This doesn’t mean that I think every implementation of affirmative action is a good idea.

    3. Dave (15), those are some excellent questions and points.

    First, as you note, the data here is actually full of gaps, and this is a problem. I’ve cited to the published literature; but the literature raises all sorts of methodological concerns. I’d welcome more detailed information. In the interim, I think the literature is what we have; and, I think in the absence of data, it’s deeply problematic to start from a baseline that the existing system is probably neutral and unbiased. We don’t have great data here. The data we do have, methodologically pronblematic as it is, suggests that there is a problem. But yes, it would be great to have better data.

    As to your specific questions, I’m not sure why sexual orientation is on the list. I think this goes in part to your question 5 — that is, Scholastica’s menu is a relatively sloppy response to the underlying concern. Would I like to see this executed in a more consistent, transparent, and methodologically sound way? YES. Very much yes.

    Though really, there’s already an incredible amount of noise and subjectivity in the law review selection process, right? Think about our co-authored piece that ended up in Wisconsin, where we continued to get rejection postcards from third-tier journals long after the Wisconsin acceptance.

    If merit were clearly measurable on objective scales, one would think that a Harvard article would also be accepted everywhere else, a Columbia article would be accepted everywhere else except Harvard or Yale, and so on. A Wisconsin piece would be accepted at journals #25 on down. But in fact, it’s quite possible to get the Wisconsin acceptance on the same day as a rejection from the Journal of Eastern Kalamazoo.

  40. Mike writes,

    “3. It’s hard to think of a more negative scheme than one that solicits information enabling affirmative action without meaningfully delivering it — courtesy of Scholastica, Justice Thomas’s worst fantasies about stigma are realized without anyone necessarily being helped. Now aspersions will be cast on those publishing in leading law reviews even if their characteristics were not declared or were declared but never considered.”

    Err, “now”? This has been happening for years. I’ve spoken with some leading women and racial-minority scholars, who have all sorts of horror stories about colleagues discounting their work on the theory that they obviously got some sort of special treatment. This has been happening for years.

  41. Mike says:

    “But in fact, it’s quite possible to get the Wisconsin acceptance on the same day as a rejection from the Journal of Eastern Kalamazoo.”

    I’m not saying law reviews are entirely meritocratic, even in their aspirations, but this kind of evidence is weak. Here a very poor journal did not extend an offer on an article when that offer would almost certainly have been declined. Such anecdotes, real or imagined, are consistent with a world in which journals have an idea of where they sit in the pecking order — and poorer journals make offers on articles they think they can publish. They never get it exactly right and so are frequently disappointed, but the clearer the example of an unjust rejection, because of the spread between the rejecting and accepting journals, the greater the likelihood that the poorer journal was anticipating the result. This offends rejected professors because they feel they should be the ones rejecting an offer that is (at least ex post) beneath them, but there’s more psychology here than indictment of meritocracy.

  42. Mike says:

    “This has been happening for years. I’ve spoken with some leading women and racial-minority scholars, who have all sorts of horror stories about colleagues discounting their work on the theory that they obviously got some sort of special treatment. This has been happening for years.”

    I am sorry to hear that; I’ve never indulged in that kind of speculation, and would react sharply if anyone else did. But my zeal in resisting these inferences might be tempered in a scheme where scholars were encouraged to submit diversity info (and perhaps did), and where the journal declared the relevance of that info. Anyway, my point, about which I was explicit, is that these negatives become worth it only if diversity actually matters in the decisionmaking — so empty information-gathering seems the worst outcome.

  43. 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.

    Shame on Kamipono Wenger. The crapola about “unconscious bias” is nonsense. Disabled people are entirely invisible and tragically coalitions for the able-bodied (i.e., NAACP, NOW, and GLAAD spring to mind) seeking to remedy this problem of unconscious bias just entrench the problem.