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January 24, 2011


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Orin Kerr

I've heard second-hand of a school giving cash awards ($5,000, if I recall correctly) for placing an article in a top journal (with the "top journals" actually spelled out ahead of time). That has the obvious downside of the poor fit between placement and quality, but it avoids the administrative problem of selecting best articles. Plus, if a professor places multiple articles in top journals each year, that professor can start making some serious money from the deal.

Jacqueline Lipton

I've heard of this too, Orin, but I personally tend to like Bridget's model better, largely because I really do prefer the focus to be on quality rather than placement and I don't think there's a terrible administrative problem with selecting best articles for quality if you use a handful of external judges. Also, there seems to be increasing evidence coming out that women faculty at least tend not to do as well placing articles in "top" journals for whatever reason (may be they're less "impressive" to journal editors or they write in more specialty areas that general "top" journals don't publish that often). Perhaps you could get around this by careful definition of "top" journals but I'm skeptical about that. The models I've heard about along the lines you raised seem to all be based on "Top [20/30/40] general journals as ranked by the U.S. News or Expresso".

Orin Kerr


I think there are definitely problems with using top journals as a proxy. I'm not sure that gender bias is one of them, but I think there is definitely a subject-matter bias. On the other hand, there are also problems with relying on other scholars. For example, the nature of the articles selected on the JOTWELL website suggest that professors are strongly inclined to prefer articles that agree with their own views, creating a real problem that the selection of the outside reviewers will strongly influence which paper gets picked. There are no good solutions, I think, only choices among least bad options.

Jacqueline Lipton

But is the selection of articles on JOTWELL necessarily analogous to the scholarship award Bridget described? She is not talking about SELECTING articles, but about ranking them. Thus, there could be some common issues eg people may rank articles higher that agree with their own views, but at least it's a much more closed system than the article selection process and may include a broader array of topics/views. Judges may have to rank, say, six articles and not agree with the points of view in four or five of them. Judges will also have to rank articles in whatever fields are submitted in a given year, so subject matter bias is less of a problem than in top journals.

Also, the research dean may be aware of the bias problem and may try and select a variety of judges with different views and interests from year to year. Changing judges from year to year may also make a difference vis-a-vis, say, the JOTWELL selection system. Maybe another way to help would be to ask judges to score papers on a set of criteria with a number of points notionally allotted to each of them. That's how it works with a number of peer-reviewed journals (particularly interdisciplinary peer-reviewed journals).

And judges in a competition such as Bridget describes can be asked to do a blind peer review of articles submitted in any given year, unlike law review editors who may focus more on the identity of particular authors for whatever reason.

In any event, I agree that there's no perfect way of doing this, but I think that careful selection of judges from year to year to focus on quality, and perhaps a set of selection criteria, would be better than relying on the biases inherent in the law-review editing process. [There is also an emerging literature, including empirical data, on selection bias against women writers in top law journals and I'm increasingly convinced by it. That, in itself, may be partially explained by subject-matter bias, but not entirely.]

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