ACKNOWLEDGMENTS AS A WINDOW INTO LEGAL ACADEMIA.

• Date: 01 September 2020
• Author: Tietz, Jonathan I.,Price, W. Nicholson, II
• Published date: 01 September 2020
• Author: Tietz, Jonathan I.

ABSTRACT

Legal scholarship in the United States is an oddity--an institution built on student editorship, a lack of peer review, and a dramatically high proportion of solo authorship. It is often argued that this makes legal scholarship fundamentally different from scholarship in other fields, which is largely peer-reviewed by academics. We use acknowledgments in biographical footnotes from law-review articles to probe the nature of legal knowledge co-production and de facto peer review in legal literature. Using a survey of authors and editors and a textual analysis of approximately thirty thousand law-review articles from 2008 to 2017, we examined the nature of knowledge co-production and peer review in U.S. legal academia. Our results are consistent with the idea that substantial peer-review-like vetting occurs in the field. We also found evidence that both authors and editors use the information in acknowledgment footnotes as a factor in article submission and selection. Further, the characteristics of acknowledgment footnotes in articles in high-ranking law reviews differ dramatically from those in low-ranking law reviews in ways that are not simply due to differences in article quality. Finally, there are problematic gender differences in who is being acknowledged. We propose some modest changes to current practices that would help maximize transparency and minimize bias in legal scholarly networks and law-review article selection.

INTRODUCTION I. ODDITIES OF LEGAL SCHOLARSHIP A. The Solitary Author B. The Absence of Peer Review C. Rethinking Some Supposed Truths II. BIOGRAPHICAL FOOTNOTES AS A WINDOW INTO LEGAL SCHOLARSHIP A. The Nature of the Biographical Footnote B. Summary of Methods 1. Footnote Database and Analysis 2. Survey C. Results Generally D. Knowledge Co-Production E. Peer Review III. TAKEAWAYS A. Implications B. Concerns C. Recommendations CONCLUSION APPENDIX A. Footnote Analysis 1. Obtaining a Biographical-Footnote Database 2. Obtaining a List of Law Professors 3. Extracting Named Entities and Noun Phrases from Footnotes 4. Gender Analysis B. Survey INTRODUCTION

U.S. legal scholarship is weird. (1) It is weird in many ways: articles are very long, footnotes are innumerable, and the article selection process is unlike any other. But there are two oddities that especially make legal scholarship stand out from scholarly work in most other fields. First, and most surprising to scholars outside the U.S. legal academy, there is no peer review. Second, and not quite as odd but still unusual, the vast majority of articles are written by solo authors rather than coauthors. Thus, the paradigmatic single author writes an article, which is reviewed by students alone and then (hopefully) published. These phenomena are widely acknowledged as traits of U.S. legal scholarship. (2) Critics have cast them as pathologies, though a few have rendered defenses. Nevertheless, they seem to be accepted features of the landscape.

Reality is more complicated. Legal scholarship typically involves many more minds than a sole author and coterie of student editors. The process of writing a law-review article is often a complex act of knowledge co-production involving the input of mentors, assistants, workshop participants, and other experts in the legal subfield of the paper. And this co-production itself serves as a form of peer review, sometimes referred to colloquially as "vetting" a piece of scholarship before publication. The classic picture of legal scholarship leaves a lot out.

We are not the first to have noted these points, at least at some level. Most of our colleagues, we are sure, would readily acknowledge that while the task of authoring legal scholarship can sometimes feel solitary, many people help articles along the way. Indeed, we need not speculate; law-review articles typically begin with a biographical footnote that credits just such aid in the knowledge production process. (3) And Arthur Austin acknowledged (and critiqued) the role that vetting by colleagues can play as a substitute for peer review in a 1989 essay. (4)

Our aim here is to explore these complications, using novel data to examine the contours of knowledge co-production and peer review in legal scholarship. (5) Our data come principally from the footnotes just mentioned, variously known as "star," "dagger," "asterisk," "acknowledgement," "biographical," "author," or "vanity" footnotes. There, among other things, authors typically thank those involved in the process of developing the article, including colleagues who read the draft, research assistants and librarians who supported the research, and workshops where earlier stages of the work were presented and critiqued. We coded the acknowledgements footnotes of nearly 30,000 articles published over a decade in generalist, student-edited, U.S. law reviews. (6)

Acknowledgements footnotes provide a cloudy window into networks of knowledge co-production within the legal academy. They provide a direct indication of who gets thanked by whom, and an indirect, noisy signal of who contributes to the production of which works of scholarship. (7)

Our data also give insight into how much the "vetting" process actually functions like peer review. Vetting could have no connection with article success (defined here, problematically but inevitably, as placement in a prestigious journal). It could correlate with success because vetting makes the article better; that is certainly the hope. Finally, vetting could correlate with success because law-review editors and authors use acknowledgement footnotes as a signal of vetting, and that signal as a proxy for peer review. (8) Our data show a link between vetting and article success. While it is difficult to disentangle the latter two possibilities, we gathered supplementary evidence, via a survey of professors and law-review editors, suggesting that acknowledgements are at least sometimes involved in the article selection process. (9) We also observe that papers that receive non-placement recognition (receipt of prizes, placement on "best-of ' lists, or inclusion in collections) have more robust acknowledgements, suggesting at least some link to quality improvement as well.

Beyond shedding light on the workings of legal scholarship, our results suggest a few possibilities for change to increase inclusivity in the legal academy. First, the gendered disparity in acknowledgements, like that previously identified in citations, counsels that scholars be conscious about whom they ask for feedback and whom they acknowledge (recognizing that the two may not be identical). Second, both authors and editors should be aware of the role that acknowledgements can play in the selection process. Our survey shows a wide range of opinions and practices. But if at least some authors and editors use acknowledgements in this way, then authors who don't know about this practice are comparatively disadvantaged. Third and finally, acknowledgements footnotes should be more transparent. If acknowledgements reflect knowledge co-production and vetting, they should tell readers more about what each individual is being thanked for, similar to "author contribution" statements in scientific disciplines. Such changes would increase the accuracy of credit, facilitate the quasi-peer-review process, and allow future work to better examine knowledge co-production networks.

This Essay, as such Essays tend to do, proceeds in three Parts. In Part I, we explore the longstanding ideas that law-review articles are principally the product of lone authors and generally not peer-reviewed. Both are commonly asserted in discourse about legal scholarship. In Part II, we bring a more nuanced take to these ideas through survey accounts and an analysis of a decade's worth of law-review biographical footnotes. In Part III, we consider the implications of our findings and provide recommendations.

1. ODDITIES OF LEGAL SCHOLARSHIP

   In this Part, we explore two prominent ideas about the process of legal scholarship. In Section I.A, we discuss the solitary author--the idea that legal scholarship is largely attributable to individuals. In Section LB, we discuss the absence of peer review--the idea that legal scholarship lacks the peer-review function common in most other sectors of academic publishing. In Section I.C, we present the basic case that the reality of legal scholarship is more complex.

   1. The Solitary' Author

      Law-review articles are typically the product of a solitary author laboring for months to analyze a particular issue--or so goes the story. (10) Though this story is so common as to be conventional wisdom, only a few commentators have examined it, mostly in the small body of literature on coauthorship in legal scholarship." Tom Ginsburg and Thomas J. Miles write of the "traditional [law] faculty member who labors in isolation," (12) and Michael Meyerson states without much ado that "[f]or most, though certainly not all, law professors, both teaching and scholarship are seen as solitary activities." (13) Benjamin Edwards notes that "a well-placed, single-author law review article is the gold coin of the realm." (14)

      Empirical studies support this story. The few studies of coauthorship in legal scholarship have found rates at or below 20%, (15) with the notable exception of works concerning law and economics, for which rates are substantially higher. (16)

      At least one incentive for solo authorship seems to be the diminished credit received in terms of tenure (or other promotion or prestige evaluations) for coauthored work. (17) Junior scholars are thus explicitly advised not to coauthor for various reasons. (18)

      Some critique the preference of the legal academy for sole authorship, arguing for increased collaboration and, as a result, increased coauthorship. (19) But there is little dispute that the modal form of legal scholarship is sole-authored.

   2. The Absence of Peer Review

      The vast...