May 28, 2007
Shining Light into the Black Box of Law Review Selection
Posted by Gordon Smith

Legal academics love to talk about law reviews. We trade stories, we share conventional wisdom, and, of course, we write law review articles about them. Mostly these exchanges are based on contradictory anecdotes (often from our own experiences as law review editors) and disputed folk wisdom. Jason Nance and Dylan Steinberg do not purport to answer all of our questions, but with their new paper -- based on survey results of law review editors -- they "hope that the introduction of significant empirical data into the debate can refocus the conversation about how best to structure the changing world of legal scholarship."

Their focus is article selection, and they begin with a bill of particulars drawn from the extensive literature on law reviews:

  • "Student editors, much of whose time is spent enforcing the rules of the Bluebook, are overly influenced by the number and complexity of an author's footnotes."
  • Quoting James Lindgren: "law review editors respond positively to the padding that weights down most law review articles, accepting long articles more readily than short articles."
  • Quoting Carl Tobias: "Articles Editors' attentions are too likely to be swayed by 'hot, trendy or cute topics.'"
  • Citing Richard Posner: "although law students are trained in doctrinal analysis and are likely competent to select and edit articles that engage in it, the current trend toward interdisciplinary and theoretical articles leaves law reviews ill-equipped to perform their appointed tasks."
  • "It appears to be generally assumed that, to a significant degree, Articles Editors use an author’s credentials as a proxy for the quality of her scholarship."

To test the selection process, the authors sent a survey instrument to approximately 400 law reviews. They asked Articles Editors "to consider the influence of 57 possible factors that they might consider during the process of deciding whether to make an offer of publication." The authors received responses from 191 editors at 164 journals. The top ten positive influences on selection are predictable:

  1. The author is highly influential in her respective field.
  2. The article fills a gap in the literature.
  3. The topic would interest the general legal public.
  4. The author has published frequently in highly ranked law reviews.
  5. The author is employed at a highly ranked law school.
  6. The article provides enough background explanation so that one not familiar with the particular field can understand the relevant issues.
  7. The topic has been discussed in the news in the past year.
  8. The author has a large number of previous publications.
  9. Articles on similar topics have not been published in your journal recently.
  10. The author has practice experience related to the manuscript submitted.

Notice how many of the top factors are attempts to certify the quality of the manuscript by means other than actually reviewing the manuscript (1, 4, 5, 8, 10). "Quality" in this world is measured by the attention an article brings to the journal, and Nance and Steinberg insightfully observe that "all of the top five positive factors are concerned, to a greater or lesser degree, with publishing articles that are likely to be read and cited frequently."

The factors included in the survey were influenced by a "panel of experts" comprised of current and former Articles Editors for the University of Pennsylvania Law Review and several faculty members at the University of Pennsylvania Law School. I find it striking that Nance and Steinberg did not include "quality of analysis," "quality of writing," "thoroughness of research," or similar factors among the options. Perhaps these factors would have a strong positive influence on all law review editors. Or, at least, all law review editors would rate the factors that way.

Finally, given my practice of not Bluebooking submissions, I was chagrined to see the following among the factors generating the highest negatives:

  • The citations do not conform to your journal's citation format.
  • Parentheticals are generally missing from the footnotes.
  • The article contains several missing footnotes.
  • Many citations do not include specific page numbers of the sources the author cites (pincites or jumpcites).
  • The article contains numerous typographical and grammatical errors.

Nance and Steinberg offer this interpretation:

It is clear that, while they are selecting articles for the quality of their scholarship, Articles Editors also have an eye on the difficulty of preparing an article for publication. Six of the ten most important negative factors are directly related to the expected difficulty of the editing process. It is interesting, however, that grammatical and typographical errors, undoubtedly the easiest errors to address during editing, have the strongest negative impact on an article’s chances for selection. This probably represents an underlying concern that a poorly proofread article may have been hastily put together and may not represent excellent research or scholarship.

This article has a lot more fodder for discussion, and it's fun reading for those of us who play the law review game.

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