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Complaints About Law Review Submissions, And What Is Changing

By Jack M. Balkin

As predictable as the sun will rise every day, every couple of months will come a rash of complaints about the unfairness of the law review submission process. The latest round followed from the discovery that Yale Law Journal's claimed "blind review" process is not blind (update: an editor of the journal just sent a note explaining that their review is completely blind, so this complaint against YLJ may well be unwarranted).

The gist of the complaint is that it's all about the letterhead: elite letterheads get a charitable read, less than elite letterheads don't (and sometimes don't get read at all). (This was confirmed in a study a few years ago when the same draft was sent under two different letterheads, and received the predicted disparate responses). One way around this is to ask (or impose upon) a friend in an elite place to urge their law review editors to take a close look at your piece, although many find this distasteful. And every now and then a "letterhead-challenged" article breaks through, often enough to keep the hope alive.

That's how it works. And, let's be honest, it's justifiable. There are too many submissions (thousands) for student editors to screen, and using the letterhead as a proxy for quality is as rational as any other strategy. They are students, after all, with classes, exams, and jobs, and limited knowledge about law.

Once we accept this reality, it becomes clear that the only solution for the "unfairness" in the process (though "unfairness" is the wrong word) is to come to a collective recognition that the placement of an article is not itself a measure of its quality.

Law professors often say this, but deep down they don't really believe it because elite journals have magical names. One of the commentators to the post complaining about the Yale Law Journal remarked that "it's true that a lot of utter dreck slips through just because it's got a Harvard/Yale resume behind it, but how many top-quality articles of the last 5 years can you name that got rejected by every top journal in the country?"

I'm guessing a whole bunch. But the only concrete example I can give is "The Bogus Tale About The Legal Formalists," turned down by every single law journal I sent it to (standard top 20)--although it is now getting a belated sniff. Of course, I cannot certify it as a "top-quality" article. The most I can say is that a number of professors have told me it will change the way we view our recent history, and this article and an earlier draft, combined, have been downloaded from SSRN over 600 times (and is mentioned in Judge Posner's new book). That's the way it is for the "letterhead-challenged." It's frustrating to be on this end, but there's no point in complaining.

And things are changing dramatically anyway. The emergence of SSRN is altering the face of legal scholarship, in some ways rendering journal placement an afterthought. This new system is slanted in its own way (bloggers have a huge exposure advantage), but it is also much more open to talented people who work in obscure places, especially with the assist of services like Legal Theory Blog and Legal History Blog. Indeed, it seems plausible that student editors will begin to use SSRN, and blog discussions of posted drafts, as a measure of interest in a submission (correcting, somehow, for the blogger advantage), and perhaps even as a way to find and solicit pieces for publication. There are signs that we are headed in this direction, which will bring a new set of winners and losers, and a new host of complaints.

As this plays out, student editors should get a break. It's not their fault. And, funny thing, a good number of these editors go on to become law professors, where they experience it from the other side.

Full post as published by Balkinization on May 19, 2008 (boomark / email).