Yesterday, I got a request from the Harvard Law Review to undertake an anonymous “peer review” of an article HLR is considering for publication. I thought I’d share my response, below.
In considering your request, I had in mind some comments that Professor Stephen Bainbridge has made about the one-sided nature of these referee requests [here is one of Bainbridge’s posts on the subject, he had an earlier more extensive one that I can’t find]. I thought Steve was a bit too prickly about it, but I decided to look up who the Harvard Law Review has been asking to comment on its articles in its on-line publication [Note: HLR can claim that it picks the best submitted articles from its pool regardless of authors’ affiliation, but it clearly has discretion with regard to whom it invites to comment on articles].
In reverse chronological order, I see Harcourt (Chicago), Spiesel (research scholar Yale), Graber (Maryland), Levinson (Texas), Slobogin (Vanderbilt), Sherry (Vanderbilt), Tushnet (Harvard), Strauss (Chicago), Lawson (B.U., formerly Northwestern), Ackerman (Yale), Morrison (Columbia), Chafetz (Cornell), Sachs (Duke), Vazquez (Georgetown). The logical conclusion is that the editors of the Harvard Law Review think that it’s okay to ask professors not affiliated with top 20 law schools, like George Mason, to be anonymous referees for articles (as I already was last year for the [___] piece), but that with very rare exceptions you don’t think we’re good enough to grace even your on-line “pages.” This, I also note, was not true until recently, as in the past you published authors from U. Baltimore, Cardozo, Temple, and other non-elite law schools, so it’s not like it’s impossible to find competent and willing authors from such schools.
So, while I do appreciate the nice review you published of my book in the current volume, I’m afraid I’ll have to decline the opportunity to review this article; consider it an informal boycott until the HLR is willing to ask the likes of me to participate in a non-anonymous way.
The point, if I may mimic the language of some famous Harvard professors, is that the law review has chosen to reinforce status hierarchies, and yet expects those disadvantaged by those hierarchies to be complicit in their perpetuation, while not even recognizing their own abnegation and exploitation.