The entrance to Vanderbilt Hall at the New York University School of Law. Student editors at the NYU Law Review are demanding that they be paid for their work. Courtesy of Ajay Suresh via Wikimedia Commons.

A group of NYU law students recently raised the novel proposition that they should be paid for their work as law journal editors. A petition with over 250 signatures—as reported in NYU’s independent student newspaper—demanded hourly wages for their labor on the ground that “prestige is not fair compensation for the value we provide.” The students pointed out that they do a job “performed by full-time staff and tenured faculty in other academic disciplines.” 

Most law professors will likely scoff at paying students for journal editing. After all, it is an extra-curricular activity open to law students and prized by them for over 100 years because it can open doors to highly desirable post-graduation employment. (“First Black to Head Harvard’s Law Review,” read the headline in The New York Times in 1990, announcing the elevation of 28-year-old Barack Obama.) In that regard, law journal editors are similar to theater students who appear in plays and musicals, conservatory students who perform at recitals, or other law students who join moot court or mock trial teams.

Of course, there is more than a bit of self-interest in professors’ reliance on unpaid student labor. Unlike every other academic discipline, where even senior faculty spend many hours managing journals and reviewing submissions, students do nearly all the work on law reviews. Moreover, the proliferation of law journals—there are around 700, or one for every 20 full-time professors—with no requirement of exclusive submission means that almost every article gets published. This de facto guarantee of publication applies to marginal articles even if they sink to the bottom-ranked journals.

It is a bargain that the great majority of law professors have been ready to make, receiving guaranteed publication and freedom from tedious work, in return for empowering students with editorial control, for nearly all scholarly publications. Professors may grumble about this arrangement and have been complaining about student editors since at least the 1930s. However, there is still only a relative handful of faculty-edited law journals, and publication in the top-ranked student journals remains just about as prestigious as it gets. The law review industrial complex works for faculty.

But does it work for students? Unpaid internships have been rightly denounced as exploitive and class-biased in journalism (including in this magazine) and other professions, although the comparison to law journals is not exact.

Unlike congressional interns, law review editors have virtually complete authority over the workplace. They have the final say over accepting or rejecting articles, which can make or break a young scholar’s career. They set editorial policies, engage directly with authors, and choose their successors and officers. There is plenty of scut work—checking citations and confirming sources—but they are not asked to get coffee or make copies (except by each other). So they’re not unpaid for menial work, but they are unpaid for serious work.

It seems only fair, then, indeed equitable, to pay law students for their contribution to the professoriate. Without reasonable compensation, many economically disadvantaged students must forgo the resume enhancement of journal membership in favor of a part-time job, creating an uneven playing field in recruiting interviews. And the idea may have other virtues as well, although not the ones put forward by the NYU students.

No law school could afford to pay reasonable compensation to every student on every journal’s letterhead. The New York University Law Review, for example, has over 60 senior editors and about 80 staff editors. (At Time magazine, just nine persons have the title of senior editor.) And NYU has eight other journals, with probably at least 400 more editors. Even just $5,000 per semester—covering only about two hours daily at $25 per hour—would come to over $5 million annually, which is a steep price even for a wealthy school like NYU.

NYU could, however, agree to pay for, say, 10 or 20 editors for each journal—at an annual cost of perhaps $200,000—while eliminating all other positions. That would quickly reveal just how important payment really is for the disappointed 400 students, who would no doubt clamor for their unpaid positions to be reinstated so that they could continue to put law review on their resumes.

There would be additional benefits if other law schools took the same staffing approach. A sharp reduction in the number of editors would correspondingly reduce the amount of drivel that law professors produce. Without the near guarantee of publication somewhere, law professors would be motivated to improve their submissions, and many would probably give up writing altogether.

In other disciplines, there are faculty positions at “teaching schools” where frequent publication is not expected. Many law schools would benefit by openly acknowledging that teaching is their overriding objective, which in turn could motivate them to appoint highly accomplished lawyers to the faculty rather than promising scholars with little or no experience in practice. Moreover, ending the culture of all-but-guaranteed publication could have ancillary benefits. We might even see the creation of more faculty-edited journals, as in every other scholarly field.

So, paying student editors seems like a win-win outcome for the quality of legal scholarship, although it would be a lose-lose for the students who would no longer have the opportunity to serve on journals and for the professors who may find themselves with nowhere to publish their completed articles.

Then again, the NYU students’ demand may simply be a smart tactic—they are law students, after all—staking out a negotiating position when they are actually willing to accept much less. The petition itself says they would accept “academic credit commensurate with the work” in lieu of hourly pay—a benefit already offered at some law schools—which would pretty much leave the status quo intact, with no additional expenditures and no stanching the flood of mediocre articles.

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Steven Lubet

Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law. He is the author of Fugitive Justice: Runaways, Rescuers, and Slavery on Trial and three other books on 19th-century legal history.