May
1st 2009
Sex, authority, and authorship in law journals

Posted under: Gender, jobs, publication, race

Ann Bartow at Feminist Law Professors has been doing a regular series called “Where are the Women?” which documents the underrepresentation of women authors published in recent editions of elite law journals.  (Check it out–the tables of contents are shocking.)  Laura Spitz yesterday wrote a post documenting the numbers of articles, essays, and comments by male and female authors in law journals from 2001-06, and the numbers are again equally shocking in light of the fact that law schools have nearly equal numbers of women and men.

Spitz’s post is interesting in that it notes that law reviews are edited and produced by students, not by law professors–a quirk unique to law reviews, so far as I know.  She writes, “students are not especially well trained or positioned to meet and address the systemic discrimination felt by women and minorities in trying to get their work published and ‘valued’.”  Spitz continues: 

This is not an especially intuitive observation, and it has been made by lots of others before me. And this discrimination cannot be visited solely on law students (who often make great choices and invariably work very hard). Rather, I think it has more to do with the fact that they are the wrong people to be making these publishing decisions. Not because they are ‘bad’ people (some of my best friends were students), but because their experience and training makes them ill-suited for the task.

I’ve never worked at a journal, and the world of law reviews is something I have no understanding of whatsoever, but I wonder if Spitz is right that (perhaps ironically) students’ “experience and training makes them ill-suited for the task?”  Does that mean that it’s students lack of training and experience?  My expectation is that unless faculty at a law school make the interests of women and non-white people a priority, those interests will not be reflected in law reviews–the tail doesn’t wag the dog, after all.  Then again, you’d think that younger people would be more open to new approaches, and that law review editors would want to make a splash by publishing cutting-edge scholarship that tackles new issues and new problems.  Is that not the case?  (My bet is that law review editors, like all journal editors, might want to publish work by well-established scholars.  If a senior scholar wants to publish something stolid and respectable but not cutting-edge, that’s a way of making a splash too, with fewer risks.)  I’d love to hear from any of you who understand law reviews or even have direct experience in publishing or being published in law journals.

Another (tangential) issue with law journals:  a colleague of mine in the College of Liberal Arts does interdisciplinary scholarship with constitutional law, and has published an article in a law review.  She is anxious that although it’s a prestigious law journal, it’s student edited and not peer-reviewed, so she’s uncertain how it will count towards tenure.  (Are law professors not required to publish peer reviewed work?)  If you’re in a liberal arts department and you or your colleagues have published in law reviews, how were those articles handled by your department for annual review purposes as well as tenure and/or promotion?

14 Comments »

14 Responses to “Sex, authority, and authorship in law journals”

  1. New Kid on the Hallway on 01 May 2009 at 11:16 am #

    I’m not sure that we students *know* what cutting edge scholarship that tackles new issues and new problems *is*, in the legal context. (Am not on a journal yet, but hope to be on one, so I don’t know quite how it all works yet.) I guess for me part of the problem is comparison – because I know way less about the law than I do about medieval history, I’m comparing my ability to evaluate legal scholarship v. medieval scholarship. But I don’t feel like I’m in any position to say whether a given legal article is a new take on a new subject, a new take on an old subject, or the same old, same old. And yet should I make law review, that’s what I’ll be doing. Not necessarily next year (which is cite-checking peon-dom), but the following year. If you’re on a Law Review (as opposed to a specialized journal), the articles can be on ANY area of law. Maybe after I take Employment Law in the fall, I’ll be in a better position to evaluate employment law articles, but I’d be willing to bet that in my 3rd year I’d still not be in a position to judge LOTS of articles in LOTS of fields.

    So my point is, although younger people might be more interested in cutting-edge stuff (maybe), what they *think* is cutting-edge may not be. And the vast majority of students I know do *not* approach law as an academic subject at all, so I’m not sure what their take on articles would be (that’s not a criticism, just an observation. And it may be less the case for people who go up for Law Review, of course).

    (As I understand it, the submission process to law reviews is completely different from regular journals, too. There’s some kind of bidding process that goes on. It’s incomprehensible to me.)

    My sense is that there’s quite a bit of debate about where is best to publish as a law prof. Law reviews are the traditional venue, but there are certainly professors out there who point out the peer-reviewed problem. Most of those who don’t publish in law reviews, though, seem to be interdisciplinary and publish in social science kinds of journals, which may not be an option for everyone. (Caveat: this is an impression picked up from wandering the web, nothing scientific.) I also have the sense that judging the quality of law reviews tends to boil down to the perception of the quality of the underlying school (it’s better to publish in the Harvard Law Review than the Cooley Law Review).

    Then there are the specialized journals, and I have no idea how they work at all.

    It is a VERY strange system, coming from the liberal arts!

  2. Indyanna on 01 May 2009 at 11:34 am #

    I had meant to note the question of law student-produced scholarly journals back for the post by Ruth Karras on the review process at Gender & History, but it didn’t happen. I’ve wondered about it for a long time. As genuinely great a program as it is–and it is–would early American scholars interact the same way they currently do with the _William and Mary Quarterly_, say, if editorial authority there was wholly in the hands of the history graduate students at that institution? I’m not sure they would. Yet tenured law profs at, say, the U. of Wisconsin or anywhere will presumably run through fire to publish in the _Yale Law Review_. How this structural phenomenon would intersect with differential gender questions is hard to say, but Historiann’s and New Kid’s speculations seem as reasonable as any.

  3. Notorious Ph.D. on 01 May 2009 at 1:05 pm #

    I wonder how this study would turn out if they turned it on humanities journals (excluding the specifically gender-themed ones). Has anyone looked at this?

  4. Indyanna on 01 May 2009 at 1:29 pm #

    With J-STOR’s “browse” feature, this could actually be followed up on fairly easily I would think. If Historiann, or somebody, wanted to set the parameters, sample of journals, and time-spans, everyone could take one journal and probably do a quick count in a fairly short period of time. (After grades are in, I’d think.
    I’m not presuming to volunteer Historiann’s or anyone else’s time for such a project, just thinking out loud). It would be a useful data-check for the profession(s). Having an “assistant,” as Spitz apparently did, is another difference between law and humanities schools.

  5. Ann Bartow on 01 May 2009 at 2:25 pm #

    One thing that Laura Spitz is referencing that may not be obvious to non law profs is that because most law students really don’t know to rate or value most law review articles (because they lack detailed knowledge of the particularized legal areas that are often the subject of law review articles) they rely on the “trademark value” of the author. Law profs at the best law schools are overwhelmingly male. Check out the faculty roster at Yale Law School, for example: http://www.law.yale.edu/faculty/faculty.htm
    Yale Law School is often referred to as the “most liberal law school in the country” which obviously means “chock full of liberal men, most of them white.” But I digress.

    Anyway, because men dominate the faculties at the top law schools, they have a huge advantage placing their articles at top law reviews. A few law reviews claim to do “blind reviews” but no one believes them, long story for another time.

    So the “trademark” effect partly explains the gender disparities among articles. There are also subject area issues. Top journals publish more articles on Constitutional Law (heavily dominated by men) than on family law (a lot more articles by women, knock you over with a feather, right?) And of course plain old sexism enters in.

    When it gets to notes and comments authored by students, however, since the student bodies of even the elite schools are roughly half and half, and they all go to the same school, sexism seems like the primary explanation, in one form or another.

  6. Matt L on 01 May 2009 at 2:48 pm #

    Hey Historiann,

    I haven’t worked on a law review, but I had a great conversation about a similar subject with a friend of mine who earned both a PhD and a law degree. He published his dissertation as a book and then also published an article in a law review.

    He thought that legal scholarship was flawed by its lack of peer review. Yes, the law students were really smart and could pick out interesting scholarship, but their knowledge base was superficial, so the same ideas, themes and concepts tended to recirculate in law reviews, without being developed and refined.

    My friend believed that peer review, especially since it was done by senior and mid-career historians, gave history journals a longer institutional memory. So that authors were given feedback that told them “Professor X argued something similar in the _Journal of Obvious Studies and Lateral Obfuscation_ twenty years ago. You should go check that out.” A second or third year law student is just not going to have that kind of command of the literature or be able to follow the development of a debate over the course of a decade.

    Perhaps something similar is at stake with gender issues. If there are very few articles in law reviews written by women or minorities that address those scholarly concerns, then there would not be much of a progressive development of those ideas and topics. The Law Reviews might take on those subjects as a novelty, but since there is not a long term, institutional memory in the form of peer review, that says, gender is important, and its something that needs to be developed year in and year out.

    I like Notorious and Indyanna’s project. After finals are graded. And after my article is revised and resubmitted I am going to take a look myself. There is an interesting historiographic project there. Maybe its fodder for an undergraduate honor’s thesis?

  7. Matt L on 01 May 2009 at 2:59 pm #

    Bleh, that second to the last paragraph did not express what I wanted to say… revise before you hit submit… gads

    So really, I would argue that the under representation of women and minority authors, as well as the areas of law that concern them might have something to do with a lack of institutional memory in law reviews. In a history journal an editor or peer reviewer can push authors and lines of inquiry in a desired direction through special issues and comments in the review process. Those forces are not necessarily present in a law review, because it relies on student editors. The students have to rely on a different set of rubrics and heuristics than are available to mid-career and senior faculty.

    Ann Bartow’s post does a superior job at explaining those heuristics.

  8. Ann Bartow on 01 May 2009 at 3:09 pm #

    On a side point, I’ve published with some law reviews at elite schools and the students there on average treat me a lot less respectfully then students that work on law reviews of “average” law schools. You know you are in trouble when you get an e-mail from the student Editor In Chief of a top law review that starts out “Hey Ann” you are in trouble.

    Am currently having a great editing experience with some Harvard Law students at the moment, though, probably because it’s the Harvard Journal of Law & Gender and the students I’m working with seem to be all women!

  9. Ann Bartow on 01 May 2009 at 3:10 pm #

    Feh, should have proofed that before posting. Grading has me fried…

  10. Historiann on 01 May 2009 at 3:44 pm #

    Ann–that “Hey Ann” e-mail just sounds like bad manners all the way around. (Although students at elite universities probably feel they have more license to behave badly, probably because they can!)

    Thanks for all of your comments–I wonder indeed what a perusal of the past 10 years of several “major” history journals would reveal? I’ll think about Indyanna’s suggestion, since it sounds like he and Matt (and maybe Notorious?) might be willing to volunteer to collect the data…

  11. Indyanna on 01 May 2009 at 4:15 pm #

    I’ll take on whatever the prof. assigns, Historiann. If half a dozen people each took on a couple of journals for a ten-year review, we could cover a lot of ground, and maybe the idea would spread, blog-by-blog, field-by-field.

    Ah, _JOSLO_, are they still around? They wouldn’t touch my stuff back in the day, and probably still wouldn’t! :}

  12. Shaz on 05 May 2009 at 4:39 am #

    Re: content of humanities journals: A colleague and I looked at 500,000 abstracts of history pubs in the past 20 years to data mine where/how women’s history appears according to time period, region, and a whole lot of other variables. If we manage to edit and send it off, hope to see it in a women’s history journal in the not-too-distant future.

    I feel strongly that we need to have more good data about these issues so we can see where we have (and haven’t) gotten.

  13. Historiann on 05 May 2009 at 6:47 am #

    Shaz–I’ll look forward to reading your results! Did you also record the sex of the authors? I agree that we need good data–it’s about time. Judith Bennett did something similar (on a much, much more limited scale) to illustrate some of the changes in women’s history she wanted to highlight (i.e. the abandonment of pre-1800 history and the expansion beyond U.S. and European women’s history). Your article will be the dernier cri, for sure.

  14. Shaz on 06 May 2009 at 5:10 am #

    Thanks for the vote of support! Didn’t do the sex of the authors; not in the databse, unfortunately. Good point though. I like Bennett’s work on this, and happy to try to contribute more. This whole debate encourages me to get my butt in gear!