Will Anti-Racist Law Reviews Publish Anti-Anti-Racist Articles by Anti-Anti-Racist Authors?
Legal scholarship is different from scholarship in other disciplines. The vast majority of law professors publish in law reviews run by students. These journals are not peer reviewed. Student editors may, but are not required, to seek out comments from professors in the field. Indeed, for the most part, third-year law students are solely responsible for publication decisions. And these decisions have serious implications. Applicants on the entry level market tend to have at least one law review publication. And applicants for tenure need to have several law review publications. (The precise number will vary by school).
Many critics of the current model contend that it is inherently unfair for scholars to place their careers in the hands of 3L student editors. I am sympathetic to this argument, but I’m not convinced the alternative is necessarily better. I have had good experiences with peer review and I have had terrible experiences with peer review. Professors may have greater expertise in a field, but they may also have stronger biases about what is and is not acceptable scholarship. I find that students tend to be more open-minded because they do not reside within a discipline’s echo chamber. As a result, my suspicion is that student law reviews are more likely to publish a wider range of ideas that are outside the mainstream.
That benefit is especially helpful for right-of-center scholars. It is difficult for conservatives or libertarians to burrow into peer review editorial boards. There are simply fewer right-of-center professors to begin with. But there are far more right-of-center law students. And they are able to join editorial boards with far greater ease. To be sure, there is still viewpoint discrimination. When I applied to be an Articles Editor in 2008, the outgoing board demanded to know if I could fairly review an article by a liberal law professor. Of course, I could. And the vast majority of articles are authored by left-of-center academics. Fortunately, I managed to skate by. I imagine those dynamics have worsened over the past decade, but I know that conservatives can still break through.
Going forward, I worry that law reviews are moving in a direction that will make it difficult, if not impossible for conservative authors to publish.
Consider a recent incident at the Washington University Law Review (in St. Louis). Andy Koppelman offered this brief description:
In one of his classes at Stanford Law School this past May, Prof. Michael McConnell read from a historical quotation that included the N word. (The quotation’s accuracy is disputed; more on that below.) When criticized by Stanford students and faculty for it, he explained that he “make[s] it a priority in [his] class to emphasize issues of racism and slavery in the formation of the Constitution, and directly quote many statements by supporters and opponents of slavery.” He went on to explain: “First, I hope everyone can understand that I made the pedagogical choice with good wi
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