In Defense of Law Review Affirmative Action

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Written by Kaimipono D. Wenger

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.

This article was published by on Feb. 16, 2013.  Read it here.