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Law Review Question:

I'm hoping VC readers can provide an answer to these questions: is it common for law reviews outside the top 20 to have policies banning professors at their own school from publishing in their law review (outside of symposia and the like) to avoid potential undue pressure by the faculty? At schools where this is allowed, do the law reviews take any extraordinary measures (e.g., blind review, peer review) to evade such pressure? Finally, at schools where this is allowed, do professors in fact put undue pressure on student editors to publish their work? Thanks.

OrinKerr:
1) I've never heard of anything like this.
2) No.
3) No.
3.11.2008 9:03pm
LXJenkins:
1.) No. Although I'm not involved with selecting articles on my law review (top 50), I notice a preference towards publishing professors from our school.

2.) No.

3.) No.
3.11.2008 9:20pm
T1 Articles Editor:
I'm an Articles Editor on the Law Review of a school ranked in the 20's, and we do publish faculty submissions but do a blind review of them (our administrative assistant removes the names).

That said, it's relatively easy to figure out who's writing on what. I think the blind review is more for the benefit of protecting us from any undue pressure from faculty to publish their article (although I'd be shocked if 1) any faculty member here had that gall and 2) any faculty member here was that desperate to publish in a mid-20's journal).
3.11.2008 9:28pm
alias:
1) No
2) No
3) a handful of professors put some pressure on the law review, usually through the EIC or through people they know personally, to publish stuff from the school's faculty. "Undue pressure"? I don't think it was that bad.
3.11.2008 9:39pm
Fmr EIC:
Great topic.

As a former (fairly recent) EIC for a state school's law review, here's my take: The university had a policy (formal or informal, I don't know) that articles published in the professor's "home" law review would be given less credit for all purposes tenure-related. I liked that policy. I think it's natural for students to be more reluctant to decline a publishable but not great article if they have to see the professor everyday in the hallway--when the same article would have been declined if submitted by a professor at another school. And, absent the university's policy, I worried that some professors would take advantage of that tendency, particularly given the ease of just walking the article down the hall rather than mailing/e-mailing to twenty, thirty, fifty journals. That said, we would never, never have published an article that was not fit for publication simply because the professor's office was down the hall. (As you can tell, we did not do blind reviews.)

On the other hand, it was common for our law review to publish an article approximately every year dealing with a topic unique to our state. Those articles were usually written by professors at our school and aimed primarily at in-state practitioners. It was a great way to fill a gap in our state's legal community. For that reason, I would have opposed an all-out ban on publishing our own professors.
3.11.2008 9:44pm
Wash L Rev:
1) No, although most faculty here prefer not to publish in our review for fear of being seen as getting a home field advantage in selection.
2) Not as far as I know.
3) Not generally, although it has happened once or twice in the past, generally with the result of the student editors holding firm in a refusal to publish if that was the decision prior to having the pressure imposed.
3.11.2008 9:52pm
The River Temoc (mail):
It is truly appalling that blind reviews are not standard policy at the nation's law reviews. Does anyone seriously contend that authors are being selected more because of their names than because of substance?
3.11.2008 9:53pm
fennel:
Why does the top 20 thing matter?
3.11.2008 10:01pm
J.McFaul (mail) (www):
Former Lead Articles Editor here:

1. No. I published an article on admissibility of previously hypnotized witness testimony written by one of our professors. I rejected a search and seizure article by another of our professors because we (law review) were expected to provide all the missing footnotes.

2. No blind review. Author's credentials were slightly important in deciding close cases. Peer review was very informal, ususally consisting of having a professor in the same field read the article and recommend sources of any opposing points of view.

3. Any pressure at all and I would have been in the Dean's office in a flash.

That was a long time ago. I don't think things have changed.
3.11.2008 10:02pm
T1 Articles Editor:
River Temoc,

Blind reviews just aren't feasible. We get over 4000 submissions per year. A majority of these come during the Spring. The four articles editors split the articles, giving us 1000 each. I'd estimate 750 of these come during the spring. On some days, we get 20 new articles per person. Authors' CVs are a way to triage. They allow us to figure out whether an author has some experience in the area, is recognized among our peer journals, is cited much, etc.

Also, with so many authors using SSRN nowadays, articles without names would mean basically nothing, except just requiring us to google everyone (which we usually do anyway).

I've never ruled out or given short shrift to an author because she's not from a "top" journal, but I have paid extra attention to the work of widely published authors who will lend prestige to the journal. Even from those top authors, though, we wouldn't publish something below our standards. I've seen a lot of sloppy work from t10 named professors that we wouldn't publish, no matter how much they're cited.

I've actually been most impressed by the work of new professors at mid-level law schools. They seem to be struggling to work their way up the totem pole, and it's easy to tell that they're the ones putting in the extra work and turning in polished, professional work.
3.11.2008 10:16pm
Caspar the Friendly Guest:

It is truly appalling that blind reviews are not standard policy at the nation's law reviews. Does anyone seriously contend that authors are being selected more because of their names than because of substance?


Hang on, Mr. River. Haven't you ever read a book (or an article for that matter) based on who the author was? Why shouldn't law review editors take these natural preferences into account?

I was an Articles Editor at a top 10 law review, and we aimed for a mix of known professors and cutting edge work from new faces.

We never felt pressure to take articles from our professors, but our professors typically used our offer as leverage to get a quick decision elsewhere. They preferred not to publish with us for the reasons others have mentioned. We knew this and probably made more offers to our own professors than we otherwise would have. All part of the game.
3.11.2008 10:16pm
Fmr Exec Articles Editor - Top 40:
1. No ban, but faculty weren't generally terribly eager to publish with us because of the apparent home-court advantage in selection.

2. No blind reviews, but I think that it is unfortunate that legal academia functions without them.

3. No undue pressure, but I will say that it can be difficult to reject some of the more politically powerful faculty.
3.11.2008 10:53pm
ronbo:
I'm not sure where my school ranked, but we had a couple (but only a couple) of rock star lawprofs. We considered it a great get when they would agree to publish in our Law Review. Because, among other things, it was easy to get a hold of them, their articles tended to have the highest quality editing.
3.11.2008 10:56pm
RMCACE (mail):
Articles Editor at a top 40 specialty journal.
1) No.
2) No.
3) Never for their own articles. We did however, get occasional pressure to publish friends of the professor's work. One time I was suspicious of a quid pro quo, when a notable professor asked us to publish a publishable, but not great piece by a relatively senior scholar at another university. We did. The next year, our professor was a keynote speaker at a conference at the other professor's school. I am sure everything was on the up and up. BUt I don't know enough about academia to know if this log rolling goes on.
3.11.2008 11:00pm
sdkigg:
Top 20 Law Reviews or Top 20 Law Schools? There is a difference. I'm at a school with a top 20 law review according to W&L that is ranked in the top 35 according to US News.

From what I've heard at my school, publishing in the school's law review is a bit more difficult for faculty of the school, but there is no strict ban. There is no blind review or peer review at the school.
3.11.2008 11:33pm
OrinKerr:
sdkigg,

The W&L ranking is pretty useless; I wouldn't rely on it to get a sense of which are the Top 20 law reviews.
3.11.2008 11:45pm
eric (mail):
I am on a law review with such a policy, although I think it is informal.

The idea is to attract good talent and not allow lazy professors to use your law review as a tenure making device. Also, I think it helps to keep tension between the law review and the faculty low, because the law review would have to reject faculty every once in a while.
3.12.2008 3:35am
Law Geek # 9 (mail):
I recall one of Fred Shapiro's articles on citation rates to law review articles pointed out that a principal way to maximize one's chances of having a top-cited article was to be a tenured professor at Harvard or Yale, and thus (at least impliedly; I don't think Shapiro said it directly) have an inside track to publication in that school's law review -- as publication in Harvard or Yale, or in a handful of law reviews close to them in prestige, would be much more important than relatively minor differences in quality compared to other articles on the same subject.

A possible example of the connection between being on a top law school's faculty, and getting into that school's law review work of sub-optimal quality: Larry Tribe.

Obviously, his treatise is justly famous, as is his appellate advocacy. But some of the articles he's managed to place in the Harvard Law Review are incredibly bad. Really, really bad, even embarassing.

Because Tribe's so immensely influential with Supreme Court Justices, particularly with clerkship recommendations, my working hypothesis is that the law review editors over the years have fallen all over themselves to publish stuff they wouldn't even take seriously if it were from someone else not out of any sort of coercion, but with the hope of gaining favor with an influential faculty member.

I'm not saying Tribe, or they, were doing anything wrong, but the example of the sort of work Tribe's managed to get published in the Harvard Law Review would tend to support the wisdom of law reviews having a flat ban on publications by their school's faculty (at least tenure-track faculty).

I wonder whether there are any top-rated professors at top law schools who, to avoid even an appearance of putting their students in a conflict, don't publish in their law school's law review. Perhaps there should be some pressure on professors to adopt that policy both: (1) to minimize a problem for students; and (2) as a means of proving that their scholarship is actually good (based on it having passed the scrutiny of law students over whom they have no influence). Professors can still give their own students experience through working on their articles with them, by hiring them as research assistants.
3.12.2008 9:56am
Just Dropping By (mail):
1) No.
2) No.
3) No. In fact, since both law reviews I worked on were always desperate for papers, we would actively push faculty to submit papers.
3.12.2008 10:12am
Ben P (mail):
1) No
2) No
3) No

I've never witnessed any pressure, however, in our case, the one unique fact is that there are only two law schools in the state, and so Articles dealing with topics on our states laws are generally published in one law review or the other. As such we have occasionally carried articles by our own professors, and I'm not aware of any special measures, but neither have I witnessed any pressure. Albiet there are have been no professor articles in the 4 issues published since I joined Law Review.
3.12.2008 11:05am
State school (rank 50-100):
Informally, the policy exists (and for a couple of years, we have not published any articles by our own faculty). At the same time, our own faculty is not eager to publish with us as well - such pieces would clearly be discounted for them as well. However, since it's an informal policy, any subsequent editorial board can easily change it.
3.12.2008 11:55am
U Chi L Rev staffer:
No, no, and no, at least for the U. Chi. L. Rev. We actively recruit professors to publish in symposia, and we've usually relied on professors to help select who publishes in symposia. I've never heard of any undue influence by professors. But then again, I'm not an editor.
3.12.2008 1:22pm
T2 Law Review Editor:
We generally will not publish our own faculty unless the issue is relevant and unique to our state. (we are, of course, a state school in a small state)
3.12.2008 3:56pm
deadly mantis IV (mail) (www):
1) No. The only articles that our faculty want to publish in our law review (state school) are articles about state-specific issues, which are generally well-received.

2) Yes. There is not a formal policy in place, but we drill incoming editors about spotting conflicts and possible undue influence and this ends up working fairly well. Blind review is not a terrible idea, but not every use of an author's CV is inappropriate. We like to know whether the author who submitted the article is ranking-conscious (i.e. they're still looking for tenure), because those authors are more aggressive in negotiations. We also like to know if the author has published previously on a similar topic (we've had instances of professors recycling their own work).

3) No. The issue of faculty pushing articles written by their peers at other schools, though, is one that should receive more attention. Faculty have a lot of power over students due to grades, letters of recommendation, and the granting of awards, and it is very easy to step into gray territory. Professors, please don't have your friends at other law schools pimp your articles!
3.12.2008 5:58pm
Metsfan (mail):
I was an EiC at a Top 40 - we didn't consider our profs' articles, and I think that was the right call. We got over a 1,000 articles a year - was the pool going to be that much better by reviewing our own profs'(again, not Harvard, not Yale profs) work? And whatever benefit that slightly enhanced pool would give, think about the downside of saying "No" to a prof who you have a class with? Someone commented that you could just march into the Dean's office and complain about a prof who gave the Law Review grief. At my school that and a buck would get you a bag of chips and not much else. Law review eds have enough on their plate - worrying about problems from their own faculty shouldn't be added to the list.
3.12.2008 8:10pm
Former EIC (mail):
I was EIC at a top-50. Our journal had an unwritten policy against publishing our own faculty, for the reason EV suggested. We made exceptions for symposia.

I also sensed that faculty members thought it less impressive to publish in their own school's journal.

I never received a submission from a member of our faculty.
3.13.2008 6:00pm