In addition, despite the use of anonymous selection processes, biases in the review process persist, and many argue that student editors are prone to select professors from their respective law schools and influence the length and specificity of submitted articles.
Pieces published by law reviews from “insider faculty”—those that are from the law school that is affiliated with the law journal—are less cited on average, according to a study done by University of Toronto law professor Albert H. Yoon. Because citations are often a metric for the quality and relevance of a piece, the publication of these less cited articles indicates a bias toward insider faculty, Yoon concludes.
His study also found that the disparity in citation levels of insider faculty and outside faculty is stronger in higher-ranked law reviews like the Harvard Law Review.
“Do we favor insiders? Absolutely,” said Joel Peters-Fransen, who served as a supervising editor at the Harvard Law Review before graduating in 2010. “We tried to do an anonymous selection process, but with varying success.”
Because authors often cite their own works and are sometimes easily identifiable by their topics alone, anonymity remains elusive.
For most articles under consideration, at least a few editors know the identity of the author, according to Peters-Fransen.
“People generally acted with good intentions,” said Peters-Fransen, who noted that he did not know of an “official, written policy” on handling conflicts of interest. The Harvard Law Review also allows all editors to vote on the selection of articles, which helped “reduce or mitigate conflict of interest” as the vote of a biased editor was one among many, he said.
As more quantitative evidence suggests such biases exist, some law reviews have begun to reconsider their selection process. The University of Pennsylvania Law Review, for example, is currently reassessing its selection process to eliminate as much bias as possible, according to Mallord.
Yet some have found this bias to be of minimal concern.
As more and more articles are posted in “online pre-print databases” before being published in print, such a bias has relatively little effect on the academic conversation and the physical publication of the article “may not matter very much,” Zittrain wrote.
And while a selection bias has concerned many, Fallon pointed toward another type of bias: the way in which an audience of student editors influences the types of pieces submitted for selection. Academics who hope to be published in a law review often cater to the students who make publication decisions.
“Articles in law reviews tend to be very, very long…because they’re written in such a way that is to describe the landscape, both legal and scholarly, into which whatever new contribution the author of the article has to make fits,” Fallon said. “You get lots of exposition of what people who are on top of the fields would know already.”