How, how could Rachel Anderson's important new article "Revisiting the Imperial Scholar: Market Failure on Law Review?" have escaped my reading until now? I love talk of law reviews (rankings, ways to improve them, the whole deal). Anderson revisits Richard Delgado's indictment of legal scholarship for focusing on the writings of a group of elite scholars. This time, though, her focus is on why the elite journals publish the work of (seemingly) so few women and racial minorities, as well as (again seemingly) so little critical race scholarship. (There are some other theories in circulation on this, of course.)
Anderson discusses reasons, drawn from the socio-economics literature, why law review editors may by-pass good articles that ask non-traditional questions or employ non-traditional methods. She also suggests some ways law reviews might correct for these biases. Her abstract is as follows:
This article argues for reforms in the institution of student-run law reviews. Specifically, it calls for an increased understanding of the potential for bias in the article-selection process. Further it calls for institutional retraining to support the implementation of new article-selection criteria and standards and facilitate more accurate evaluation of scholarship.
Student editors often evaluate legal scholarship based on assumptions stemming from socio-cultural understandings of law and society that do not address or incorporate the breadth of American society across lines of race, class, gender, and sexual orientation. This should not be surprising. No one scholarly norm or standard can rigorously analyze the full range and extent of the breadth and depth of American society. This inherent inability demands a plurality of ideologies, methodologies, norms, and standards to facilitate and ensure a complex and rigorous intellectual debate. The reforms I suggest are intended to address the hurdles that law review editors must overcome to effectuate a more intellectually rigorous and informationally valuable article-selection process.
This article uses a hybrid methodology employing the tools and insights of both critical race theory and law and economics. It begins with issues of bias in legal scholarship raised in the two preceding decades by Richard Delgado, a leading critical race theorist, and Edward Rubin, a former Chair of the Association of American Law Schools Section on Socio-Economics. Then, it follows in the tradition of law and economics scholars and Nobel Prize winner Gary Becker utilizing the tools of economic analysis in non-market contexts. Specifically, this article utilizes economic theories and concepts such as market failure, informational asymmetry, switching costs, and network effects to develop a deeper understanding of institutional bias on law reviews. Finally, it employs scholarship on rhetoric and critical reading skills to identify opportunities for reform.
The task of reforming law reviews is a difficult and important one, for sure. I wonder if the reasons that Anderson identifies for why students are skeptical of innovative work (such as it's not familiar to them), will also make them skeptical of her suggestions for reform. This article might have been called the imperial law review student. All of which reminds me that I really need to finish off that little essay I've had on my hard drive for going on a decade now, "Law Review Editorship As Training for Hierarchy."
This article brings a whole new level of precision to the problems of article selection by law reviews. We're going to be hearing a lot about it.
Alfred Brophy
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