It’s Not What It Looks Like: How Claims of Self-Publishing Bias in Legal Scholarship Are Exaggerated

Abstract

The unique transparency in law journal submissions invites criticism for both letterhead bias and self-publication bias. Letterhead bias is when editors use information about an author—prior publications, reputation, prestige of affiliated institution, etc.—as a proxy for article quality, thus adjusting the level of consideration given to their submission accordingly. Self-publishing bias is when student editors give preferential treatment to the submissions received by law professors at their same institution. Studies as early as 1983 have consistently and conclusively found that self-publishing rates among elite law schools can surpass 20%. However, the existence of high self-publishing rates does not necessarily prove self-publishing bias. This Article presents numerous, alternative explanations that do not implicate self-publishing bias. Unfortunately, current scholarship on the subject largely ignores these alternative explanations. This Article also highlights problems with self-publication proponents’ claims. These include how claiming “disproportionate” self-publishing levels is flawed because there is no “correct” self-publishing level from which to judge a deviation, the implication that the merits of submissions are objectively measurable, how the alleged harms from self-publishing are frequently overstated, and how proposed reforms would be largely ineffective at addressing these problems. The novel arguments provided in this Article serve to fill glaring gaps in the literature, thus providing a more complete view of the issue.