The Answers to the Ultimate Questions

posted by David Schraub

Thanks to everyone for posting such interesting questions. I’ll give my best stab at answering them below (I’m going to basically give my best truncated summary of each of the questions); if you have follow-ups or didn’t get a chance to ask, I’ll be happy to continue the conversation in the comments (but since I am moving apartments tomorrow, I may be only to hop on to this site sporadically).

Do journals really look at articles in the “off-season”, and how does submitting at that time affect how the piece is evaluated?

I know many journals specifically say they don’t consider pieces in the summer, and I’d advise taking them at their word. For reviews that do say they accept pieces year-round, I’d hope you can trust their word too. It is possible to get a piece picked up over the summer — we took at least one, as I recall, and I think some others in not-normal times (December, for instance) — but the dynamics can be a bit wonky.

The advantage of submitting off-season is that the competition is generally weaker. It’s not a matter of quantity (I actually think that cuts against you, as I’ll explain below), instead, it’s just that most of the pieces we receive are from people who aren’t sufficiently tied into the norms of law review publishing to even realize there is a “season” at all, and they tend to produce lower-quality work.

The disadvantage is that we, as editors, know we have at least one more huge flood of articles coming, and your piece is being judged against the hypothetical awesome piece on your chosen topic that we imagine will be coming to us in September. The death knell for many of the pieces we looked over the summer was the question, “is this the best piece we’re going to get on X?” And in many cases, we thought “no, I think we’re going to get a better one in the fall dump.” There were several occasions where, in my opinion, that prediction turned out to be incorrect, but the point is that, because there are so few summer pieces and most of them are pretty weak, it is easy to fantasize.

My takeaway advice is that a summer submission can be advisable if you’re worried that your piece won’t even be looked at otherwise. But, it is even more important than ever for the piece to be impeccably polished, well-sourced — basically publication-ready. I’d even recommend downloading a law review template (Eugene Volokh has one) and formatting your piece accordingly. The default assumption is that summer pieces are going to be weaker caliber than those in the main dumps — it is very easy for an editor to see a piece that looks unpolished and decide it isn’t worth her time.

As a student, what are my chances of getting an article published in another school’s journal?

Very poor. Many journals flatly refuse to accept student work, many others don’t have an official ban on them but in effect refuse to look at them. I think there is very little reason not to wait until you’ve graduated and then sending your piece out. You’re far more likely to get a fair read from a much broader array of journals.

The other thing is that a piece that reads as a Note or Comment is automatically dead in the water. This is true for everyone, but students and recent graduates are met with a particularly skeptical eye on this point. A Note is designed to identify and clarify a discrete, open question of law. Those are useful and important. But for articles, journals tend to prefer pieces that are (or at least claim to be) tackling a “big question” (this may or may not be to our credit, but it is an accurate statement of what gets published as “articles”). If I see a piece by a student or recent graduate that has a non-iconic case name in the title, or has a huge section summarizing the current state or legal precedent, or has “circuit split” anywhere in the first 10 pages, we have trouble.

Expedites: Does it matter from where, and are pieces ignored until they have one?

Qualified yes and qualified no, respectively. The cocktail of factors which motivated me to read an article were (a) whether the paper was on a topic I liked or otherwise looked interesting (or alternatively, something about it had a serious red flag that indicated it could be rejected quickly — an analysis of recent reforms to Utah family law, for example, isn’t going to be published in our law review), (b) how long it had been in my box, and (c) whether I was on a deadline (e.g., there was an expedite). So yes, I did read pieces that weren’t expedited on a relatively regular basis. But for pieces which aren’t of the sort which would catch my eye on their own, expedites become far more important. It’s worth noting that we did try to sort the incoming pieces so the editor most likely to find them interesting was the one assigned to the first read, but it’s unavoidable that all of us had some pieces in our inbox that we were more excited to open up than others.

With respect to the identity of the expedite, it does matter, but perhaps less so than commonly assumed. It is true that an expedite from a relatively obscure secondary journal won’t do all that much for you. But the “bands” are pretty wide — I’d say that in general, any journal within the top 75-100 will be treated roughly the same, and serves as a solid flag of quality.

There are, however, particular journals that we thought tended to do a particularly good job of identifying good articles, and an expedite from one of them would count extra. I feel like a congratulations/apology is due to the William & Mary Law Review, from whom I’m pretty sure we stole several pieces, and whose expedites always got close attention because they tended to select really good articles. There were other journals whose piece selection we were less enamored with, and expedites from those journals counted less than their rank might otherwise suggest.

Finally, there are some journals we suspected of making very soft offers to professors from their own school. It’s not the case that any expedite from an author’s home institution raised a red flag, but a few journals definitely aroused our suspicion on this front.

What is your voting process? What does it mean to make “final review”?

With the very strong caveat that every journal does things differently, here is how Chicago works:

In general, there are three stages to article selection. First, one of the articles editors flags a piece. Flagging means that they think the piece is a worthy candidate for publication. Once a piece has been flagged for discussion, we schedule a meeting. We don’t have regularly scheduled articles meetings; rather, we meet when we have a piece to discuss. An editor can flag more than one piece at a time, and more than one editor can flag different pieces; there is no limit on how many pieces one of us can bring up. Typically, though, an articles meeting will have 2-3 pieces on the agenda. In busy seasons, we might meet nearly every day, in the off-season, we can go weeks without having one.

The second stage is the small group vote. The five articles editors each have five marbles, and thus (after discussion) we each cast a vote between 0-5 for the piece, with a “3″ or higher being a vote to publish. There is a threshold of marbles necessary for the article to proceed to the next stage, if it doesn’t hit it, the piece is killed.

The final stage is the big group, which is the same as the small group except it includes our EIC and Executive Editor. Same rules apply, though the marble threshold rises proportional to the extra two voters. We also require that at least one editor give the piece a “4″ or higher, on the theory that somebody should be truly excited about the piece (if every editor voted “3″ on an article, that would put it over the publication threshold but it would also signal that nobody is super-enthusiastic about the piece). If it gets the requisite number of marbles, we make an offer. If not, we don’t.

Final review at Chicago simply means you’ve reached this last stage. There’s no formal odds I can give of a piece’s chances at this point, though I’d eyeball it at about a 30% chance at publication (and about 30% of pieces flagged to small group make it to big group). Two things act to keep that figure low: (1) Votes change from small group to big group, generally downward (folks will throw an extra marble in the cup to bump the piece up), and (2) The EIC and EE are often rather ruthless in their votes.

Why does the Law Review do a symposium?

You got me. I don’t think we should have one. The symposium is actually one of the few aspects of the Law Review that is mostly out of our hands — one of the faculty members solicits our input, but ultimately selects the topic and list of invitees. I floated the concept of replacing the symposium with an “emerging scholars” issue, where we ask the faculty for some younger scholars they think are up-and-coming and ask them to send us their “big idea”, but it didn’t go anywhere (to be fair, “floated” is if anything too generous — I might have idly mused about it in the presence of our EIC). But my understanding is that the faculty enjoys the symposium a lot, and on our end the headaches that would necessarily be a part of abolishing mean that it stays alive.

How much pressure is put on us to publish faculty articles?

I think the fact that we do bend a lot on the symposium has actually bought us a lot independence for the rest of our volume. I’ve heard horror stories from friends at other journals who have been leaned on hard by the administration on behalf of specific faculty members, and I can honestly say we haven’t been subjected to any of that. Now, to be fair, this might be because they don’t have to — there are a lot of Chicago faculty members who consistently write very strong articles, meaning we tend to have a decent representation of Chicago articles all on our own volition.

What’s the answer to life, the universe, and, you know, everything?

42. Come on, give me a tougher one.

What sort of thing (if any) stands out from a cover letter – both good and bad?

Nothing. I read a grand total of one cover letter, and that was only because I had been an AE for 10 months and curiosity finally got the better of me. I know of none of my peers who read any of the cover letters, much less accorded them any consideration.

Does posting on SSRN, or a posting on Larry Solum’s blog, matter at all?

It can only help, in my view. Most of us read Professor Solum’s blog at least semi-regularly, and occasionally we’ll pull pieces off of his site that haven’t been submitted to us yet (I don’t think we ended up making any offers that way, but we did talk about it). It’s to our advantage for the pieces we end up publishing to be distributed widely and be part of the broader scholarly conversation, and SSRN is a big part of that.

What do you think of Professor Bainbridge’s recent post on Chicago’s move to a semi-peer review system?

I’m limited along a variety of axes on how much I can comment on this. The policy in question post-dates my time on Law Review, so I can’t speak to the specifics of what Chicago is doing or why it is doing it. There are just three things I think are worth noting:

(1) The Law Review as a whole cares quite a bit about ensuring that we are able to fairly and effectively evaluate the articles we receive. When selecting articles editors, we look (a) for the biggest scholarship geeks (a description I give with love) we can find and (b) to build an articles “team” with expertise in as many areas as possible. Many students have advanced degrees or other scholarly bona fides in other fields, and even those that do not have invariably demonstrated in other ways a commitment to diving into legal scholarship as a whole and several specialized areas in particular. The result is that I am very confident in the articles group’s ability to objectively assess the vast majority of the pieces that are submitted.

(2) There is no real “market pressure” pushing law reviews towards even a partial system of peer review. Many professors fervently desire it, of course, but there is no punishment to student-journals that don’t offer it. If Chicago did not have any system of peer review, there would be virtually no repercussions in terms of the quality of the articles the journal receives or the prestige benefit most graduates of the journal receive when applying to law firms or clerkships. Hence, even this “baby step” towards peer review is mostly being done because of the aforementioned commitment to ensuring that only the very best pieces are selected for publication.

There are legitimate criticisms of the entire system of student-run journals as the linchpin of legal publishing. But, absent some sort of material pressure on them that does not appear to be forthcoming, there is no reason to expect the students to voluntarily cede the influence and prestige they currently possess. That they are even partially giving this up is essentially an altruistic act.

(3) Professor Bainbridge is absolutely right that the balance of power in this relationship lies with the professor (at least, the tenured, chaired professor), not the students. There is no obligation on any professor to assist the Law Review in their projects — there neither being a stick nor a carrot (though perhaps some people would enjoy helping for its own sake — I hardly see any harm in asking).

The tone of the letter I think is one that recognizes who holds the cards, and is trying it’s best given that it is essentially asking for a favor. It is drilled into us that when communicating with professors, we are to behave deferentially, even obsequiously, at all times. That can get annoying, I’m sure, but I’m sympathetic to the students here, because there isn’t always a winning move. One person might be annoyed at what they take to be a veiled threat, another person might be annoyed at the presumption displayed by trying to disclaim any threatening intent. It’s a predicament I’ll do my best to remember and accommodate now that I’m on the other side of the process.

 August 7, 2011 at 5:57 pm  Tags: law reviews  Posted in: Uncategorized    Print This Post

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