Wednesday, October 17, 2012

On Richard Posner, Peer Review, and Sexism

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Judge Richard Posner
Judge Richard Posner has been at war with student-edited law reviews for years, as is evident in articles here, here, and here.
Like many others, he has argued that legal scholarship has long outgrown the original justifications given for allowing second and third year law students to select and edit legal scholarship. This was fine, he says, at a time when virtually all scholarship consisted of close doctrinal analyses of case law. Those trained in a single year of close reading of cases might be competent to select articles that engage in the same, but what equips students, he asks, to select or edit legal scholarship dealing with specialized fields that they have not studied (much less practiced) or to judge the quality or original contribution made by inter-disciplinary scholarship involving advanced knowledge in fields as diverse as anthropology or economics?
That such inter-disciplinary work might alternatively be published in the peer-reviewed journals that dominate non-legal fields only heightens the unusual (and irrational) dominance of student-edited journals in law within the United States.
Posner and other critics point out the many ways that students are unsuited to the task at hand. Those who are not versed in the subjects that they are supposed to judge and who may need additional training in writing and editing themselves are likely to take questionable short-cuts to article selection and editing. We should not be surprised if a process of non-blind submission examined by students encourages the selection of articles based on the status of the author’s school, the author’s CV, and other criteria that do not necessarily correspond to the quality of the piece on hand. We have abundant (and occasionally hilarious) anecdotes of the editorial malpractice that can result:
► Student editors who insist on changing citations in historical pieces to correspond to the courts recognized in The Bluebook even though these did not exist at the time,
► An editor oddly resistant to the word “the” who turns text into pidgin,
► Others who rigidly adhere to “folklore grammar” rules that require strenuous efforts by authors to correct, or
► Groups of editors who give a “serious” read only to manuscripts in the “elite” school pile.
James Lindgren
For these and other anecdotes, see An Author’s Manifesto, a 1994 article by Northwestern Law Professor James Lindgren.
For critics of student-edited law reviews, many of the notorious features of legal scholarship, including its lackluster appeal to today’s judges and practitioners, can be laid at the feet of students.
Posner suggests that students are more likely to select trendy topics (without regard to their usefulness to the practice of law) and to favor overly long, but impressive looking, articles. Authors learn to bury their original contribution in the lengthy exposition expected by novice editors, even if the verbiage would be considered unnecessary by those more expert. The sheer abundance of student editors provides no incentive to lighten turgid prose or to streamline the editorial process such that it addresses only real errors of grammar, fact or law. To Posner, student-edited journals are places where, as he put it in his 2004 article, Against the Law Reviews, “inexperienced editors make articles about the wrong topics worse.”Lindgren’s “author’s manifesto” goes further, to suggest (not altogether playfully) that the “elite” student editors of these journals engage in “war crimes against authors.”
It is, however, too easy to blame student editors for articles that are long on exposition and short on creativity. Surely students alone are not to blame for all-too-predictable patterns of argumentation, organization and analysis over distinctive voice and style. All of this requires complicit or lazy authors – and academics who refuse to “waste” time reviewing and editing the work of their peers. Student journal editors – who are often among the best students in the class – should not be blamed for a system that the academy supports and sustains. Nor can critics of these journals deny that students get valuable experience as a result or that the law review articles that students select and edit are still relied on by national and international courts. Further, one suspects that an equally depressing (if different) set of anecdotes could be compiled from authors at the receiving end of peer editors. (For a response to Posner, see this blog debate between Posner and Notre Dame Law Professor Randy Kozel).
I was nonetheless thrilled when the student editors of New York University’s Journal of International Law & Politics (JILP) threw the challenge back to us when they decided, on their own, to transform their journal such that its lead articles would be chosen by peer reviewers, starting with an inaugural issue to be published next summer (for which submissions are now being accepted through November 1). As the announcement for that Journal makes clear, forty of us affiliated with NYU responded by volunteering to be peer reviewers. (Among those volunteers is another IntLawGrrls contributor, my colleague Gráinne de Búrca.) I agreed to serve as managing editor for that inaugural issue.
Gráinne de Búrca
Those of us on the NYU faculty who took this on, did so, I suspect, not necessarily because we agreed with Posner’s overheated critiques or out of any sense of dissatisfaction with the current JILP but because we believed that a journal that was devoted not only to a specialized field – international law – but that purported to be inter-disciplinary in focus (note the “Politics” in its title), should take advantage of the exceptional relevant expertise within the NYU law faculty. If that faculty can teach over 60 courses and seminars each year in the field, it should be capable of doing a better job of attracting and choosing articles than even our excellent students. Nor did any of us think that we were shortchanging students by taking over the selection of lead articles. As the editorial board of JILP realized, much of their work would remain unchanged under this hybrid model. Students would still be responsible for the editing of the articles and for writing student notes and book reviews, but they could rely on faculty input as needed. Students would still get the experience that they sought from editing a legal journal, but their JILP experience would likely be enhanced by the increased interaction with faculty members.
We also thought that the market for U.S. international law scholarship left room for a peer-reviewed publication in this field – and that it was the right time for JILP to join a growing (if still relatively small) tide of legal periodicals in the United States that are either peer-edited or refereed. (See this 2011 article by University of Washington law student Alena L. Wolotira, showing only 12 such journals in 1960 but 69 in 2010 (out of over 600)). JILP is no longer an outlier among U.S.-based law reviews in resorting to some form of peer-review. (Indeed, the number of formally peer-reviewed publications on such lists understates the extent of faculty involvement since a number of student-edited journals reportedly involve at least informal consultation with faculty peers.)
Still, the author in search of a U.S.-based peer-reviewed journal in this field has meager options. Of 84 legal journals in the United States specializing in international law (broadly understood to encompass comparative law and specialized topics such as ethics), only 24 are listed in Washington and Lee’s list as faculty-edited or peer-reviewed (if one selects for international law and US and clicks “peer-edited” and “refereed”). Of the 24, most are directed principally to practitioners or devoted to specialized sub-fields within international law (such as arbitration, national security, tax, or business).
While there are many international peer-reviewed journals around the world, the American Journal of International Law (AJIL) stands virtually alone in the United States as a peer-reviewed periodical publishing work of interest to academics and purporting to cover, in general, public international law. Given the fact that AJIL publishes at most 3 lead articles per issue, there should be enough authors willing to face the additional time constraints (and potential rejection) of peer-review.
But there is an additional reason, not emphasized by Posner, to support a change like JILP’s. In the case of JILP, the three peer reviewers asked to review a manuscript by the faculty managing editor do not know the author of the piece that they are asked to review. Nor do the authors know who their reviewers are. Such double-blind procedures for article selection, common to legal journals outside of the United States and common to non-legal fields within it, makes the gendered selection of articles less likely. Among Lindgren’s anecdotes of bad practice (pp. 528-29) is one that I have confirmed with the person involved:
► A female economist with a Ph.D. and a law degree was asked during the course of article selection by a female student editor of a U.S. law review whether she “understood” the mathematical equations in her article’s appendix –  an article which was solo authored). The author responded that of course she did since she had written those equations herself.
One suspects that a male writer would not have faced such a challenge – and one wonders how many articles chosen on the basis of the prestige of the author’s school or of the author replicate such sexism.

A widely publicized recent study tells us that sexism exists in other technical fields. One blind study indicated that when scientists were asked to evaluate identical applications for a laboratory manager position identified by name (and therefore gender) the ostensibly female applicants received lesser rankings, lesser salary offers and fewer mentoring opportunities than the males. Why should we expect non-blind, non-peer law article selection to evince fewer prejudices?
Of course, double-blind processes do not prevent educated guesses by the reviewer about who the author is. (In her 2009 article, Peer Review and Legal Publishing: What Law Librarians Need to Know about Open, Single-Blind, and Double-Blind Reviewing, Professor Nancy McCormack (right), law librarian at Queen's University in Ontario, reported on one study indicating that reviewers in a specialized field guessed correctly who the author was in 25 percent of the cases.) But double-blind procedures combined with peer-review strikes me as the best approach to reduce arbitrary – and potentially sexist – article selection.
At the end of the day, JILP’s transformation may be a small step towards a fairer and more diverse population within Oscar Schachter’s invisible college.

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