The Volokh Conspiracy
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I recently came across the Georgetown Law Journal's author diversity amendment. It was ratified in the spring of 2020. (I am not certain the date). The policy creates an express quota for reviewed articles:
During each articles-assignment period (usually each week), at least 25 percent of the total articles the Senior Articles Editor assigns shall be written by diverse authors as defined by (i).
The policy offers this definition of diversity:
Disability, race, ethnicity, underrepresented religions, sexual orientation, gender identity (i.e. non-cisgender/non-binary), and socioeconomic status.
By my read, white cisgender women are not considered diverse. And I doubt Judaism and LDS are "underrepresented" religions for legal academia.
What happens if the Senior Article Editor cannot meet this quota:
In cases where the Senior Articles Editor is unable to meet the percentage agreed upon in accordance with (1)(a), they shall approach the EIC and the Board to discuss the reasons why they were unable to fulfill the mandate. Select members of the Senior Board will then take steps to remedy the Senior Article Editor's concerns and increase author diversity.
The policy acknowledges that the quota can be lowered, but never below 10%:
After the EIC and Senior Board members' review, these members will vote to provide a new percentage, never to be lower than 10 percent, to set as a floor requirement for the amount of articles by diverse authors assigned by the Senior Articles Editor in each assignment period.
And, if there are still not enough submissions from diverse authors, the journal can solicit articles from specific diverse authors:
In cases where the Senior Articles Editor does not have enough articles from diverse authors to meet the requirements established in this Amendment, the Senior Articles Editor, the EIC, the Senior Notes Editor, the Senior Online Editor, and the Development Committee will establish outreach initiatives targeted at academic institutions and diverse academics to increase the amount of articles submitted from diverse authors.
The journal adopted another policy in Spring 2021 with respect to the publication of student notes. (There are other adopted policies as well). Specifically, there is a requirement to publish at least one note focusing on "social justice."
Every volume of the Journal shall select for publication at least one student Note submission addressing an issue of social justice.
What is social justice?
Themes on social justice reform include but are not limited to gender identity, ethnicity, race, sexual orientation, physical and mental ability, immigration status, national origin/indigeneity, prison and criminal justice reform, and socioeconomic status. On
And what happens if the Notes Committee fails to select a social justice note?
In volumes where the Notes Committee fails to select a Note addressing an issue of social justice, the Senior Notes Editor shall approach the EIC and the Board to discuss the reasons they were unable to fulfill the requirement. The Editor-in-Chief shall have discretion to take appropriate measures to remedy the Senior Notes Editor's concerns and ensure compliance in future volumes.
Moreover, 25% of all note submissions must be from diverse students:
In addition to the Spring 2020 GLJ Author Diversity Constitutional Amendment requirement that 25% of articles screened by the Articles Committee be written by diverse authors, the Notes Committee and GLJ Online shall ensure at least 25% of their submissions sent to their respective selection committees are written by diverse authors as defined in Section (i) of the Spring 2020 GLJ Author Diversity Constitutional Amendment.
Let me try to break down the author policy with simple numbers. Assume in a given week, a journal receives 1,000 submissions. And the journal receives 500 submissions from diverse authors. In that scenario, the Senior Articles Editor can forward 50% of the diverse submissions for review. And the Editor can forward 75% of the remaining submissions from non-diverse authors. What if the journal only receives 250 submissions from diverse authors. With these numbers, the Senior Articles Editor will likely forward 100% of the submissions. If the Editor fails to forward on a submission from a diverse author, he or she may be subject to remedial action. What if the journal only receives 100 submissions from diverse authors. Under the policy, the Editor would likely forward 100% of those submissions. But he would also have to decrease the number of submissions from non-diverse authors. Here, the Editor would only be able to forward submissions from 300 non-diverse authors for a total of 400 submissions. That allocation would generate a 25/75 split. Again, if we start with 1,000 submissions, 100% of the diverse submissions would be forwarded. And 30% of the non-diverse submissions would be forwarded. Journals can always increase the denominator, as a way to increase the numerator. That is, recruit more submissions from diverse authors. But in the absence of more submissions from diverse authors, then the selection rate for non-diverse authors will have to decrease.
One final point: how do expedites work? If the journal had already met its weekly quota of non-diverse authors, will an expedite from a non-diverse author be rejected out of hand? Often, expedite requests have very short time horizons, so it would not be feasible to hold onto an article till the next week comes in. Or, are expedites requests exempt from this policy?
Now the policy does not impose any quotas on what articles are published. But the policy imposes very stringent "tracking" protocols:
The Senior Articles Editor & the Development Committee shall track the number of articles from diverse authors considered at both the screening and full-committee stages of the Articles Committee selection process, and the number of articles published from diverse authors per issue before the printing of each issue.
I suspect the pressure will be large on the various committees to publish the submissions from diverse authors. This pressure is a feature, and not a bug of the policy. At some point, once the pipeline is established, the journal will likely impose publication requirements as well.
I have not kept close track of how many elite journals have adopted such policies, but I suspect it is widespread. Journals are now imposing specific quotas on the representation of authors, and even the subject matters of note topics.
Update: The Washington Post published a profile of the current Georgetown Law Journal's Editor in Chief. The piece includes this passage:
The outgoing journal editor, Toni Deane, who was the publication's first Black editor in chief, said Lee and her senior board are already making a difference. Among the 13 articles selected so far for the journal Lee is overseeing, there are seven pieces with authors who are Black, Indigenous and people of color, and five that include female authors.
"They're already crushing it," Deane said. "The people who are selecting these pieces matter."
Roughly half of the articles published are by diverse authors.