Short Take: Law Journals and Coloring Books

At Volokh Conspiracy, Josh Blackman picked up on a curious diktat at the Georgetown Law Journal.

I recently came across the Georgetown Law Journal’s author diversity amendment. It was ratified in the spring of 2020. (I am not certain the date). The policy creates an express quota for reviewed articles:

During each articles-assignment period (usually each week), at least 25 percent of the total articles the Senior Articles Editor assigns shall be written by diverse authors as defined by (i).

The policy offers this definition of diversity:

Disability, race, ethnicity, underrepresented religions, sexual orientation, gender identity (i.e. non-cisgender/non-binary), and socioeconomic status.

Josh runs through some of the ramifications of this policy, from who is on the “outs” to what to do if the well runs dry. He also does the inside-baseball math, which is good because math is hard (as are paragraph breaks, Josh).

Let me try to break down the author policy with simple numbers. Assume in a given week, a journal receives 1,000 submissions. And the journal receives 500 submissions from diverse authors. In that scenario, the Senior Articles Editor can forward 50% of the diverse submissions for review. And the Editor can forward 75% of the remaining submissions from non-diverse authors. What if the journal only receives 250 submissions from diverse authors. With these numbers, the Senior Articles Editor will likely forward 100% of the submissions. If the Editor fails to forward on a submission from a diverse author, he or she may be subject to remedial action. What if the journal only receives 100 submissions from diverse authors. Under the policy, the Editor would likely forward 100% of those submissions. But he would also have to decrease the number of submissions from non-diverse authors. Here, the Editor would only be able to forward submissions from 300 non-diverse authors for a total of 400 submissions. That allocation would generate a 25/75 split. Again, if we start with 1,000 submissions, 100% of the diverse submissions would be forwarded. And 30% of the non-diverse submissions would be forwarded. Journals can always increase the denominator, as a way to increase the numerator. That is, recruit more submissions from diverse authors. But in the absence of more submissions from diverse authors, then the selection rate for non-diverse authors will have to decrease.

Taking a somewhat less numerical approach to the problem, this would mean that the “scholarship” appearing in the law journal would not be based on its quality or relevance, but on the identity characteristics of its writers. And if there weren’t enough of the right type of writers, pretty much any submission would have to do.

And then there’s the Student Notes, a prestigious resume filler for law students hoping to be a prominent voice in the law.

Specifically, there is a requirement to publish at least one note focusing on “social justice.”

Every volume of the Journal shall select for publication at least one student Note submission addressing an issue of social justice.

What is social justice?

Themes on social justice reform include but are not limited to gender identity, ethnicity, race, sexual orientation, physical and mental ability, immigration status, national origin/indigeneity, prison and criminal justice reform, and socioeconomic status.

Even if one doesn’t have the right physical characteristics, there’s still hope to be published if one writes about the correct topic.

There was a time when conventional wisdom suggested that the elimination of bias in selection could be achieved by blindness: put the musician behind the curtain and let their music speak for itself. The new Georgetown law journal quotas present the opposite view, that the quality of scholarship doesn’t matter as long as the characteristics of the writer, or the topic of the submission, meets the exacting requirements of social justice.

It may be that there are so many submissions from writers with the correct characteristics that the student-run journal has a wealth of brilliant articles from which to choose, or that the four millionth student note on why the living Constitution is the only way to fulfill the promise of the Fourteenth Amendment, and textualists are poo-poo heads.

Or it may be that these moribund journals will fulfill their highest and best use on the bottom of bird cages. But if the quality of scholarship is no longer the lodestar of publication, then they might as well be coloring books, which are more fun anyway.