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February 15, 2013


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I don't have much to say about the main topic, but one correction: IP is not "male dominated" by any reasonable definition of the term. If one looks to the top 10 schools in this years US News (for a limited data set), we have, inter alia, Jane Ginsburg, Clarisa Long, Rochelle Dreyfuss, Kathy Strandburg, Jeanne Fromer, Rebecca Eisenburg, Pam Samuelson, Molly Van Houweling, Jessica Litman, Margo Bagley, and others that I'm sure I'm missing in a off-the-top-of-my-head list (no offense intended). There are men as well, but my impression is that the ratio is quite well balanced.

Michelle Meyer

Fair enough; correction made.

Jeffrey Harrison

I realize this post is on a side issue but the premise is the outcry against selection based on anything but merit. All I can say is "Oh Come on." If that is your beef than I assume you have been equally vocal about selection based on schools attended, taught at, and even one's name. Otherwise, hush up.

Michelle Meyer

Professor Harrison,

You seem to have read something into my post that is not there.

The post expresses no "beef" whatever. It expresses:

(1) intellectual curiosity about a seeming contradiction in equally strong, but opposite, views -- of others, in both cases -- on the appropriateness of AA in selecting faculty for (a) speaking and (b) publication slots, and

(2) skepticism about a compelling basis on which to distinguish these two contexts.

That’s it. I expressly say –- thrice – that:

-- “To be clear, I don’t mean to be asking a leading question; I’m truly just curious about what you and others commenting on this think about this possibly analogous practice,” and

-- "My immediate interest in this is not about the appropriateness, per se, of...AA in article selection. (For thoughts on that, see the links above)," and

-- "How we resolve that inconsistency [that the post suggests exists] — by expanding AA from symposia/conferences to article selection, or by eliminating it from both contexts — is, of course, a separate question."

I realize that it may seem odd for me to have spilled so much Internet ink on analyzing the question of whether two fact patterns are fully analogous or can instead be distinguished. As I noted, it was an exercise in “entirely nerdy parsing.” Chalk that up to my philosophical training and close reading of philosophical and theological texts. I would have thought I could also have chalked it up to my legal training, but perhaps not.

Your comment is a bit cryptic, so I’m not 100% sure, but I read you as saying: Meyer is clearly pro-merit in articles selection (and in symposia selection?), and therefore unless she has also publicly spoken out against the kind of extra-merit criteria that are involved in letterhead bias and which I critique on my class bias in higher education blog, she is a hypocrite and should “hush up.”

Given that the post is explicitly about exploring the presence or lack thereof of an analogy between two fact patterns, I'm perplexed about why you assume I so obviously favor one of those fact patterns over the other. That is, why do you assume that the "premise" of my post is the "outcry against selection based on anything but merit" in articles selection as opposed to the equally current, equally strong outcry against *refusing* to consider diversity in speaker selection? If one is going to misread my post, it should lend itself equally to both misinterpretations (and maybe it has, only to different interpretations by different people with different views on these questions). If anything, I would have thought that, since my contribution to L’Affaire Scholastica consists not of railing against the diversity widget or calling for a boycott, as do virtually all of the posts I link to, but instead of pointing out that we already do something similar in (what the post concludes is) the analogous context of speaker selection, that readers would be more likely to interpret my post as a thinly veiled defense of AA in both contexts. (Once again, to be crystal clear: it is not. I simply express no opinion on this.)

...Continued in next comment, owing to TypePad's restrictions on comment length (apparently)

Michelle Meyer

...Continued from previous comment

So I deny taking any position whatever here on AA in either the articles or speaker selection context (much less on AA in education admissions or hiring). But if you must know -- and since you asked *so nicely* -- I have in fact spoken out on the issue of letterhead bias, albeit in the narrow context of simply correcting the impression left in another CoOp thread by a law review editor who suggested that letterhead bias was a kind of peer review. Here's what I said, in relevant part:

"...with all due respect to Steve [the law review editor], looking at 'what sort of university presses have published [a professor's] work' does not constitute 'an element of peer review.' Nor does looking at 'how often professors’ work is being cited,' any more so than does reviewing their educational pedigree on the cv that law review editors generally make faculty enclose.

"It’s true that in some contexts we make an ex ante decision to support the researcher rather than the research, based on the quality of her training, past research, and an interesting idea for new work. Federal research funding sometimes works that way. But academic peer review is supposed to be an ex post evaluation of the merits of this particular piece of research, not the researcher and not her prior research. Ergo, blind peer review. The facts that Prof. X has been published by OUP and the Harvard Law Review and has a YLS JD? These are all decent and understandable (if deeply unfair) proxies for law review editors to rely on when they have little other choice b/c their time and knowledge are significantly constrained (especially given simultaneous submission). But they don’t constitute peer review or anything like it. One might even say that t[h]ey’re offensive to the values that underlie peer review."

My full comment and the context for it can be found here:

The only other time I can recall speaking up about AA was during my time on the Harvard Law Review. At that time (I don’t know if this has changed), I recall that there was a thumb on the scale for racial minorities, but not for gender, sexual orientation, socio-economic disadvantage, or any other category that plausibly might be justified by either a backwards-looking or forwards-looking rationale for AA. (My memory could be faulty, but that’s my recollection.) This policy seemed to me to be neither fish nor fowl and not well philosophically grounded (again, that pesky philosophical consistency thing), and I’d hoped that we could have a reasonable, intelligent discussion about it. But the policy seemed to be the result of an awkward compromise between those on the HLR who would have eliminated all AA and those who would have expanded it to other categories, and neither side seemed much interested in risking the territory it had gained.

Finally, I’ll note that in the original CoOp thread on Scholastica where I first raised this question, Dave Hoffman suggested that the anonymous law professors posting there should have the courage to write under their own names. I sincerely thank you for writing under yours. That said, when a tenured law professor feels free to tell someone who will probably never share that particular privilege, and who is actually sympathetic to the thrust of your blog, to “hush up” at the mere mention affirmative action, I think we have a pretty good idea of why anonymity in the blawgosphere, and on this and similar topics in particular, is so widespread.

Tamara Piety

Amen Michelle. Amen.


First, compliments to Michelle's last paragraph.

Second, as someone whose antipathy to letterhead bias has been made clear before, let me say to Jeff Harrison that there is in fact quite a principled distinction here. Letterhead bias--while a terrible thing--is still rationally related to the goal of selecting high quality articles in an environment where editors are time-crunched. It is an imperfect proxy for quality, but people use imperfect proxies all the time. The point is that letterhead bias is not inconsistent with a theory that law review editors seek to maximize quality within time constraints.

I have not yet seen a theory of how the race, gender, and sexual orientation of an article author serve as proxies for quality. The furor over L’Affaire Scholastica is that it seems inconsistent with our understanding that law review editors seek to maximize quality within time constraints.

To Michelle, there is one distinction between law review selection and conference selection, though I admit it is not a particularly strong one. The diversity theory of affirmative action says that affirmative action is not to help the beneficiary herself, but to expose other (straight white male) participants to unfamiliar views and aid their education. That works for conference invites, where the selector doesn't know what any speaker is going to say, and so the race/gender/sexual orientation of the speaker serves as an ex ante proxy for unfamiliar views that will be educational to the audience. But it doesn't work for article selection, because the selector already know what the article says.

Jeffrey Harrison

Michelle, as I wrote, I was not responding to your post directly. I think it poses a very interesting question and I did not read you as having a beef at all. I was responding to this which I think is true: "Although these musing reflect a range of views, the majority, it seems to me, objects — in some cases vehemently, with calls for a boycott — to the notion of journals deliberately selecting articles on any basis other than merit." My comment was that all those holding forth on the need for merit based selection should be equally concerned about resume, letterhead, and name bias. I enjoyed your response nonetheless and am bit surprised my own comment was evidently not clear.

Tamara, in my opinion, any view that letter head bias is useful in selection of meritorious articles simply helps a corrupt and incestuous system persist. I sympathize with the editors faced with thousands of articles but there is no known correlation between where a person went to school or where they teach and the quality of their work. Reliance on institutional authority is devastating to intellectual as well as most other forms of diversity. Talk about buying into a corrupt system!

Jeffrey Harrison

Oh, now I see the source of the misunderstanding. The "your" in my comment was not "you" but a collective notion of "if your beef." Plus, I have expressed no view on AA other than that which currently exists for the privileged and that, btw, is pervasive and the only AA I oppose. Sorry to have caused you to write so much.

Michelle Meyer

Hi Jeffrey (if I may),

Thanks very much for that clarification. Yes, in addition to interpreting "your" and "you" as referring to me, as you suggest, I now see that I was also led astray by your opening reference to "this post" (which I took to mean my blog post, rather than your comment on said post), and to "the premise," which lacks any referent (but which I took to refer to the premise of my blog post rather than to the premise of others' discussions of Scholastica that I was, in part, discussing in said post).

Anyhoo, I'll let those to whom you were actually referring respond to your substantive point. As for our star-crossed blog exchange (and I thought Twitter's 140 characters lent itself to misunderstandings!), all's well that ends well. Many thanks again for clarifying.

Jeffrey Harrison

M, thanks for the reply. Of course it is Jeff!

Prof 56

I think it's a question of social norms. When a selected group is going to meet in person, the prevailing social norm in legal academia is to have a head count. An passionate objection will be made if the numbers aren't somewhat representative based on race/gender lines, so steps are taken ex ante to avoid the objection. That's the case with symposia, conference panels, faculty hiring, and admissions, all of which involve some personal meeting or head count. On the other hand, when the selected group is not going to meet in person for a head count, the social norm is to make the choice as much merit-based as possible. That's the case with article selection, grading student exams, citation rankings, and other competitions that don't meet in person or become readily subject to a head count.


I think it's a great development. Liberal prof's have subjected students to AA for decades, what's good for the goose ...

Michelle Meyer

To Prof 56,

I certainly agree that we have two opposing, but equally strong, sets of social norms – reflecting, I assume, two opposing, but equally strong sets of intuitions – about AA in the distribution of speaking versus publication opportunities (hence, the OP). The question, though, is whether these norms, and the underlying intuitions they reflect, are justified or even rational.

If you’re suggesting that the difference has to do with how observable a lack of diversity is in the two contexts, then I guess I’m skeptical of that explanation. One can easily count white males versus others published in various law review volumes (see comment #13 at, although maybe you’d say that this is a recent development, in which case we nonetheless would expect the social norm to shift to acceptance of AA in articles selection.

To TJ,

Interesting. So one forward-looking, “positive externality” rationale for AA is, as you say, exposing non-minority/privileged people to diverse views. And, as you say, if what we’re really after is intellectual diversity, then demographics are only a proxy (perhaps a very rough one). Call this Rationale 1. In articles selection, we can simply select diverse intellectual contributions directly, but, you say, the proxy make (more) sense in selecting speakers because we don’t know in advance what they’re going to say. I agree that the conclusion follows from the premises, but I’m skeptical of this last premise. In my experience, at least, conference speakers are usually selected on the basis of abstracts, so we have a pretty good idea what they would say, if selected. As for invited symposia, does anyone really ever invite someone who has not already written or spoken on an issue or at least on a related issue that gives the selector some pretty good sense of what the speaker would contribute to the symposium?

Your comment brings to mind three additional forward-looking, “positive externality” rationales for AA that are worth exploring to see if they can be used to distinguish between speaking and publication opportunities. (Spoiler alert: I don’t think they can.) All three focus on exposing non-minority/privileged people to diverse *people,* rather than to diverse ideas, per se. Rationale 2 says that minority/non-privileged people have different experiences from which we can benefit. It may be that often these diverse experiences will translate into diverse ideas/arguments, so that Rationale 2 dovetails with Rationale 1, but I gather that some people would see these as separate rationales. Kaimi at CoOps seems to make something like this argument towards the end of his post. Here, demographics is no longer a proxy for what will be said (aloud or in print), so there should be no difference between the appropriateness of AA in selection of speakers versus writers.

Rationale 3 similarly seeks to expose non-minority/privileged people to diverse *people,* regardless of their substantive views -- but this time in the hope that doing so will debias the majority’s explicit or implicit bias against members of minority/non-privileged groups (see Jolls, Antidiscrimination Law's Effects on Implicit Bias, Again, assuming that the bias one seeks to eliminate or reduce is based not on viewpoint but on demographics (as the IAT suggests), then demographics are what we’re targeting, not a proxy for content, and we’re left again with the no-difference view of AA in writing and speaking.

A final forward-looking, “positive externality” rationale for AA, Rationale 4, seeks to provide role models for other members of minority/non-privileged groups. Same analysis: here, we’re after role models about whom younger folks can say, “S/he looks like me and is successful; maybe I can be, too.” We can stop with demographics (so long as the role model will in fact be successful in his or her selected role) without otherwise attending to the content of his or her talk or article.


Michelle, I largely agree with what you say. I was more throwing Rationale 1 out as one that can be defended than being passionately committed to it. I still do think it can be defended--a full article is of course more detailed and concrete than an abstract or a guess based on prior work, so the relative usefulness of the demographics proxy declines in article selection vis-a-vis speaker selection. Again, even I don't think it is a particularly strong rationale, but it is what I would throw out if I were a lawyer faced with your question from a judge.

Prof 56


I think you're missing the group dynamic of how AA plays out in the academy. Some people in the academy believe in a meritocracy: they think the best should be recognized as the best, and they have confidence that they can tell what is good. They think blind evaluation should prevail in an ideal world, so they don't want to consider race/gender/sexuality. Other people in the academy are very focused on race/gender/sexuality dynamics and they will insist on representativeness. They are less sure about "merit," but they know it is relatively easy to count who is of what gender, who is of what race, and who is out about their sexual preference. Still other people are somewhere in the middle: They like the idea of merit, but they also are committed to some amount of representativeness. How the group dynamic plays out depends on the salience of race/gender/sexuality of that particular selection. When a group is selected to be recognized and that group meets in person, the visibleness of the physical appearance makes the diversity dynamic easy to see, so the objections are very likely to be made from the second group and the first group is likely to (begrudgingly) go along with it. When that group is not likely to meet in person, the visibleness of the diversity is less salient, less likely to be objected to, and so less likely to be acted on ex ante. The issue is salience and group dynamics, not logic.

The interesting aspect of article selection is that until it was easy to google authors, it was hard to figure out their race and whether they were out LGBTers. Those questions were less salient, and so articles were judged on merit. Websites with pictures, CVs, and change that, introducing a way to make race/gender/sexuality salient. So we have a disagreement on social norms, with one side wanting to make it salient and the other side wanting it not to be salient. I don't know which side will win out: I suspect it depends on whether it is made a priority of the second group (the group committed to representativeness).

Tamara Piety

Jeff (If I also may) You write: "Tamara, in my opinion, any view that letter head bias is useful in selection of meritorious articles simply helps a corrupt and incestuous system persist. I sympathize with the editors faced with thousands of articles but there is no known correlation between where a person went to school or where they teach and the quality of their work. Reliance on institutional authority is devastating to intellectual as well as most other forms of diversity. Talk about buying into a corrupt system!"

I couldn't agree more. I think perhaps you misunderstood the direction of my "amen." I meant to agree that it is not a good system, even if it is terribly pervasive.

Disabled Attorney

I am a disabled attorney. Once I earned my JD, I spent years unemployed but not for want of trying. I applied for literally thousands of jobs and with the Army JAG. Without exception, I was rejected from each one. The scumbag proponents of "diversity" for gays and women should answer to the disabled. As a group, our poverty rate is over 25% (a rate comparable to American Indians) but no one, NO ONE is advocating for us.

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