Law review positions are arguably the most sought-after distinctions in law school and are considered a critical, if not essential, qualification for prestigious federal clerkships.
For years, there have been complaints that law reviews have actively discriminated against conservative writers in favor of far left academics. The denial of such publishing opportunities is part of a rising viewpoint intolerance on campuses. As we have previously discussed, faculties have purged most conservatives and libertarians from their ranks. As conservative faculty have retired or resigned, they have been replaced by largely liberal candidates. Many faculties have only a few conservatives or Republicans left. I have seen extraordinarily talented conservative academics who have faced closed doors across the country in seeking appointments. They are often forced to go into private practice or take positions at lower-ranked schools. Those who secure positions often complain that they face hostile treatment if they object to DEI and other policies on ideological grounds.
If young professors are open about their ideology and somehow secure an academic position, they then face difficulties getting published. Indeed, there have been calls for new journals to give the dwindling number of conservative faculty some outlet for their scholarship. Publications are needed for tenure and advancement. The hostile reception at top journals makes it very difficult for young libertarian or conservative faculty to advance.
The Chicago Thinker details how law reviews have added diversity statements and background reviews as part of their selection process.
“These statements are completely open-ended, but they are still generally assigned a number grade—as if “diversity” were somehow quantifiable. The vagueness and unquantifiable nature of “diversity” in real life, however, creates opportunities for abuse. For instance, the managers of the Columbia Law Review allegedly use applicants’ diversity statements to ferret out students who are members of the Federalist Society (FedSoc), a conservative legal organization widely hated by liberals for, among other things, its role in overturning Roe v. Wade.”
The newspaper documents how Federalist Society members appear the most targeted. Top students who went on to secure leading clerkships were allegedly blocked from positions on the law reviews.
The newspaper also accused journals like the Columbia Law Review of practicing racial discrimination by specifying race as a criteria or factor in admission. It is also common for journals to ask authors to identify their race and sexual identity to give greater opportunities to minority authors. There is a common view that the best chance for publication comes with articles alleging systemic racism or attacking core values like free speech. At the same time, it is rare to see articles espousing textualist interpretations or challenging diversity rationales. Indeed, we have seen authors denied publication even after acceptance when their articles challenged such viewpoints.
The reduction of conservative student editors not only means that fewer conservative student notes are published, but faculty publications are selected by a largely liberal editorial staff.
This bias in publications is further magnified when students seek faculty review of submissions. With few conservatives or moderates left on many faculties, conservative authors can expect to be spiked or damned with faint praise from such faculty reviews. Indeed, even faculty members inclined to recommend a conservative submission may fear personal and professional consequences in being associated with a controversial conservative or libertarian publication.
It is hardly surprising to see the same intolerance on law reviews that have been manifested on campuses for years. The bias in selection of these positions not only impacts the diversity of opinion in leading journals but sharply limits the advancement of both law students and young law faculty. Law reviews have become part of the academic echo chamber where viewpoints range generally from the left to the far left. With most faculty and most publications echoing these viewpoints, it forces even moderate faculty to the perceived extremes of intellectual discussions.
One can argue that correlation does not mean causation in the lack of Federalist Society members or openly conservative students. The process of journal selections remains somewhat opaque and it is hard to analyze data that is not released by these schools. Yet, these are long-standing objections to the overwhelming ideological bent of journals.
Ironically, the most obvious explanation is that there are relatively few conservative or libertarian faculty today, so it is understandable that most publications will reflect the liberal makeup of most faculties. It becomes a circular, chicken-or-the-egg debate. In truth, the problem is the coalescing of all of these factors that have been building for years.
I loved my time at Northwestern University Law Review. It was one of the most intellectually rewarding chapters in my education. We even implemented a total blind read system to remove any information about the author, their positions, or their status. We sought to judge works entirely on their merits and selected pieces from across the ideological spectrum. We also had a faculty that was remarkably diverse and tolerant.
The loss of that vibrant intellectual environment remains one of the saddest developments of my lifetime. I have watched my profession become intolerant and orthodox in every aspect of academia. We reached a tipping point a couple decades ago where ideological rigidity seemed to take hold of our schools as professors sought to replicate their own values in hiring, promotion, and administrative decisions. It is not surprising that our student journals reflect the same bias and intolerance.
There is little evidence that the controlling majority of law faculties will change this culture of intolerance. While that culture denies the very core of our intellectual mission, it serves to support the viewpoints (and publication opportunities) of most faculty members. It is not their problem.