Tuesday, April 13, 2010

Unbound: Taking Something Bad and Making it Worse

By Ori J. Herstein

Unbound: Harvard Journal of the Legal Left is one of the seventeen journals published by Harvard Law School. As far as I can tell it is a fairly new student-run electronic publication. Unbound seems to aspire to provide a forum and a home for leftish legal academics with a bent towards continental style theory; a place where such thinkers will not be required “to justify [their] existence to unsympathetic critics.” I view this rhetoric as a reaction to unreflective bashing and snobbery often directed from within analytical circles at intellectuals of the continental, post-structural, and post-modern variety. A particular grotesque example of this anti-intellectual trend is the infamous NY Times obituary of Jacques Derrida. In trying to make a small contribution to combat this regrettable phenomenon I actually wrote an article defending Judith Butler from such uncharitable criticism (apologies for this shameless plug). Thus, even though I am a card carrying liberal and aspire to be an analytical thinker, I am sympathetic to the plight expressed by the founders of Unbound.

That said, one thing that gives post-structuralism, post-modernism etc. a bad name is the tendency (of some practitioners) towards unreflective negation and dismissal of any and every category, value, or structure. As if the practice of deconstructing or “unbinding” is of value all unto itself. Unbound’s editorial policies show signs of this unfortunate tendency.

The ills and benefits of the student-run law journal are well known. The review process is not blind and editorial decisions are made by students who lack the knowledge and expertise to judge the quality and originality of the submissions. The positive aspects of student-run publications include the high quality of citation checking and close proofreading they often produce: elevating the form of the publications and helping students develop skills that employers look for in junior attorneys.

Unbound seems to have chosen not only to adopt all the ills of the current system but also to discard the few positive aspects of the student-run law journal. Unbound’s section on article submission begins very dramatically, proclaiming that it seeks to “undo the traditional hierarchies of the student-edited legal journal.” When I first read this I thought to myself “finally, someone is taking a stance against the entrenched system wherein students, prestige proxies, and cronyism determine the intellectual landscape” (on the biases of non-blind review see here; I take it that the problem with non-peer reviewed journals is self evident). Alas, this hope was shattered by the very next sentence, where Unbound proclaims that “[t]o that end, writers are responsible for their own citations, and student editors will provide substantive feedback on the arguments made. We’re interested in intellectual interaction – not housekeeping for authors”!

In the name of undoing a “traditional hierarchy” Unbound essentially does away with the primary redeeming quality of the student-run publication. I honestly fail to see why the common practice (a “tradition”) of students proofreading and cite checking articles (a “hierarchy”) is so awful. I also wonder what exactly does the journal’s small army of fifteen editors – Unbound’s website does not seem to list any staff members who are not “editors” – do. Especially considering that, on average, the journal seems to only publish about seven articles per year. Let’s hope that there is plenty of “intellectual interaction” going on.

Of course all this does not reflect in any way on the quality of the articles published in Unbound (except, perhaps, on the accuracy of the citations). For example, the current issue headlines a piece by Noa Ben-Asher whom I personally know and think is very good. I am sure that the students themselves are equally terrific. My concerns are purely with the way Unbound is set up and with the precedent it may establish.


Justinian said...

I'm really sad to hear what appears to be a quite misguided comment by Prof. Herstein.

He seems to think that the only redeeming qualities of working at a journal are "[the] high quality of citation checking" and the fact that it "help[s] students develop skills that employers look for in junior attorneys."

As a member of Unbound, the benefits I get are quite different, actually. I find it extremely rewarding and enriching to be reading the broad array of critical literature that we receive. This is an educational benefit that one may not get from regular classes.

I also find it very empowering to be working on substantive issues with authors: to be making suggestions about structure and content; to learn why they made a given set of choices in the piece; and to see the things they take from our suggestions. I don't disagree that as a student I may not have as much knowledge as a law professor. For that reason, if we are doubtful how much an article contributes to scholarship, we have a great group of faculty advisors (which you can check on our website).

But beyond that, I do believe that the fact that we openly tell authors to be responsible for their own footnotes creates a different relationship between us and them that we, as a lefty journal, find quite helpful. That is, it feels more like a relationship among equals than as a hierarchical environment.

You may or may not like this but I wouldn't be so quick to judge that it makes our journal "worse."

You are more than welcome to submit a piece and try out the experience: unbound@law.harvard.edu

Michael C. Dorf said...

I want to split the difference between Ori and Justi, although I tentatively end up mostly with Ori.

1) I understand why, from a student's perspective, working on the substance of an author's article is more rewarding than simply working on matters such as cite checking and bluebooking. So Ori probably should have included that as one of the--perhaps the most important--benefit of being on a journal for a student. Of course, a journal could have students engage in both cite-checking/formatting and substantive engagement, but as a practical matter, more of the former crowds out time for the latter.

2) However, it's not at all clear why, from an author's perspective, big-picture substantive engagement from student editors is especially valuable. Before submitting an article for publication, an author will have typically workshopped it and received extensive comments from others in the field. (For example, Noa Ben-Asher's article thanks 13 named faculty members and participants in two workshops in the asterisk footnote. That's about average.) How much more useful "substantive feedback" and "intellectual interaction" do the student editors of Unbound think they can provide?

3) In my experience, student editors can and frequently do provide very useful feedback beyond what I get from colleagues by focusing on smaller, but nonetheless substantive, matters: line-editing, the flow of an argument, organization. This is more substantive work than cite checking and bluebooking but not the sort of big picture feedback one would get from colleagues.

4) But here's the kicker: Student editors at good law journals already provide useful substantive editorial suggestions of the small-bore sort just described. What Unbound seems to be doing differently is simply subtracting out the cite checking (and bluebooking?). Again, I see why that's attractive to student editors but not so much for authors.

5) And if Justi et al want to object that they're not simply foregoing the cite-checking but also adding intellectual interaction at a grander level, then I would have to say see supra, n.2.

Justinian said...

Thank you Prof. Dorf for your comment.

I don't disagree that authors may find a journal that does not cite-check less appealing than one that does. It is simply one less service we are offering.

But you need to understand where we are coming from. We are not trying to build a "best practices"-type of journal for any kind of scholarship. Instead, we are one of the few journals that openly addresses itself to the legal left and seeks to express this vision both in the scholarship we publish and in the way we go about publishing it.

Our refusal to cite-check is one of the ways we seek to implement this vision. Again, some authors many not like this but many others choose to publish with us partly because they agree with some of these non-hierarchical goals.

My main disagreement with Prof. Herstein is that somehow because we are not doing what he finds valuable in journals that makes us a worse journal. I think he should look at the quality of what we publish and the fact that we provide a space for scholarship that would otherwise not appear in many mainstream journals.

After he has done that, we are more than happy to hear any constructive criticism he may have.

Ori Herstein said...


First, apologies if any offense was taken; none was meant. Second, I concede the point about what students get out of working on a journal. Moreover, if I had to choose a journal to be on I would choose one more on the lines of Unbound than others. Cite checking is not fun. I would certainly not want to do it. My sense is that many students join law journals for the prestige rather than for the experience itself, which from what I gather can be rather dry. So from the point of view of the student, Unbound is terrific.

Also, I am all for student editors making substantive comments on articles. In fact, I believe that in many student-run publications student editors offer substantive comments in addition to cite checking, bluebooking and proofreading. One does not rule out the others. I actually received some fine comments (on the lines Mike mentioned) from the editors of one of your peer journals at Harvard a year or so ago.

My concerns are more with the general phenomenon of student-run publications determining the landscape of the academic profession. A professional academic publication must put the advancement of the field first. The quality of the experience of the editors is less important. Lacking the knowledge and experience to judge the professional novelty and quality of submissions, I think what student editors can primarily offer to the academic profession is more on the lines of cite checking, editing and proofreading. Remove that, and I just do not see much utility – from the point of view of the academic profession – in having student-run journals.

A few comments on hierarchies. The reality of the American legal academy is that the advancement of junior academics is determined – to a significant extent – by the prestige of the journals in which they publish. As a result, student editors actually wield great power over the careers of professors. If there is a hierarchy that is out of whack in the world of legal publications, that is it. In the world of peer reviewed publications the editors still hold all the power, but at least they are experts in the field. Also, I just do not see the great advancement in not doing cite checks: just calling it a “hierarchy” does not move me all that much. Moreover, using metaphors such as “housekeeping” to capture the seemingly demeaning or hierarchical nature of cite checking may not be in line with the professed ideology of Unbound...

Justinian said...

Hi Prof. Herstein,

I think your concerns are legitimate. There are quite a few law professors that have begun peer-edited journals just because of what you said. Here at Harvard a couple of professors recently opened this one: https://ojs.hup.harvard.edu/index.php/jla

I think it is extremely regrettable that faculty advancement is measured by the prestige of the law journal. And of course, your point is well taken that a student may not be as good at detecting innovative scholarship as a law professor. I already mentioned what we try to do to minimize that risk (reaching out to our faculty advisors) but I take it you may not find this enough.

It may well be that in the future we get rid of student-run journals. Many students join for prestige reasons, as you mentioned, and don't enjoy it, and many professors get frustrated by some of the dumb questions students ask.

Hence, I see your point that if students don't ask anything smart and are not willing to do the cleaning up of the article, what are they good for?

The answer seems to be: not much. But of course it is not so black and white. Students do have interesting things to say and yes, here at Unbound, we clean up the article, it is just that we don't go as far as some other journals. Instead, we rely on the author to do some of that work.

Ultimately, I feel Unbound may not be the best target for your criticisms. We are not an established journal, so I am not sure we wield that much power, but more importantly, we try really hard to find voices that wouldn't otherwise be heard in legal academia because their views are considered "too radical." I don't see ourselves as oppressing young professors and keeping down innovation. Very much the opposite--our whole goal is to bring in new voices that are willing to challenge current structures.

In conclusion, I agree with your concerns and think they should be addressed. I just think that Unbound may be more part of the solution than the problem.

Sam Rickless said...

From the point of view of a non-legal academic, the idea that even very gifted law students get to determine (even with the help of faculty advice) who gets published and who doesn't makes very little sense. As Ori points out, whether one advances in the academy depends on whether one's work gets published. Students simply do not have the expertise to tell the difference between what is worth publishing and what isn't.

Having said that, I don't think that student editors should be cite-checking. I think that their involvement in the process should be geared, as Justi suggests, to their education. Here's a thought. Have the faculty advisors decide what gets published (this happens everywhere else in the academy), but bring the student editors into the decision-making process, allow them to participate by asking questions and providing input. Graduate students participate in hiring decisions in this way in my field (philosophy). They do not make the final decision, but their input is encouraged and valued.

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