Academic freedom—classically defined as the freedom of research and teaching—is a complicated idea, and one that has come under severe attack in our era. One question that has not received much attention, is whether academic freedom applies to the student editors of law reviews. Last year, Aziz Z. Huq and I argued that it does. This is because the academic discipline of law has delegated to students its editorial judgement about what to publish. One could imagine an alternative world in which law looked more like every other discipline in the university, with journals edited by professional academics utilizing peer review to screen articles. That is not our world, in part because we think that there are pedagogical and intellectual benefits to be had from student-run journals. One consequence is that, in their exercise of editorial judgement, law review editors should be able to make their decisions independently, free from pressure by the administration or faculty.

Because law review editorship is an elite credential, there is intense competition to acquire it. This gives law schools, which in some cases are the parent organizations that govern law reviews, an interest in how membership is selected. While many journals had historically selected editors on the basis of grades alone, this was not always a good predictor of the skills needed to be a good editor. Writing a law school exam is very different from exercising editorial judgement concerning scholarly articles. Law reviews eventually added a write-on competition that was blindly graded, which was perhaps a better screen. Then personal statements were added, in some cases to diversify the editorial boards, but also in part to screen applicants’ willingness and ability to put in the long hours required of editors. (Disclosure: I chaired the faculty advisory committee for the University of Chicago Law Review for several years, and the latter rationale is the one we understood would be applied in the evaluation of personal statements.)

We should not be surprised that, in our polarized era, the culture war has arrived at the doorstep of law review membership. In February, a lawsuit was filed by Faculty, Alumni and Students Opposed to Racial Preferences (FASORP) against Northwestern University and its law review, alleging illegal race discrimination in the selection of editors and articles. And Northwestern might not be the last target: in late April, the Washington Free Beacon reported that race and gender considerations had been incorporated into the article selection process at Harvard Law Review for several years. Among other things, editors were allegedly asked to consider the racial diversity of authors cited in articles.

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