Michael J. Higdon (Tennessee), Beyond the Metatheoretical: Implicit Bias in Law Review Article Selection, 51 Wake Forest L. Rev. ___ (2016):
Every year, law review editors around the country are forced to select which authors, out of the hundreds who annually submit articles, to extend offers of publication. For law review editors, these are stressful times given 1) the short time frame they have for reading and assessing this ever growing number of submissions and 2) the fear that a poor selection on their part could potentially embarrass both themselves and their law schools. Although legal scholars sometimes forget about article selection from the perspective of the hurried, stressed law review editor, everyone in the academy should be somewhat concerned about the current process. After all, numerous studies have shown that, when people are asked to make decisions quickly and under stressful conditions, their decision-making is more likely to be influenced by implicit bias.
On some level, most legal scholars are aware of and begrudgingly accept this phenomenon. In fact, most legal scholars today, when assessing their likelihood of getting a “good” placement, must take into account not only the substance of the piece they are submitting, but the proxies law review editors typically employ to help ascertain “quality” — such proxies include the author’s institution, her alma mater, her publication history, her subject matter, and her overall “fame” within the legal academy. And, to the extent they can, authors actively use those proxies when marketing their articles in hopes of gaining a higher placement.
It is the position of this Article that, although such proxies may be useful in determining the potential virtue of an article under consideration, blind adherence to those attributes alone can result in publications that fail to represent both the breadth of the excellent legal scholarship that currently exists and also the diversity of individuals contributing to that discourse. Thus, recognizing that student-edited journals are here to stay, this Article offers suggestions on how student editors can continue to discharge the weighty jobs they have been given yet, at the same time, minimize the potential for implicit bias in article selection. To make that point, this Article discusses the social science literature on the role implicit bias plays in decision-making with the goal of applying that literature to law review article selection. And, indeed, by looking at the current understanding of the law review submission process, including 1) what studies have revealed about the proxies law review editors rely on in assessing quality and 2) the corresponding marketing techniques law professors use in an attempt to gain higher placements, we see that much bias already exists in our discipline — and this bias has the potential to adversely affect an array of legal scholars: scholars from less prestigious schools, scholars who hold less prestigious titles, scholars who engage in more practical scholarship, scholars who write on less politically popular subjects, and even those scholars who happen to be female or a racial minority. By pointing out these dangers and offering suggestions on ways in which law review editors might attempt to neutralize such bias, this Article hopes journals might improve the degree to which their publications reflect the rich diversity that exists in the legal academy.