The law review article selection process: results from a national study.

• Author: Nance, Jason P.

1. INTRODUCTION

   In the mid-1990s, the topic of the student-edited law review was very much on the minds of legal scholars and law review editors. In 1994, the University of Chicago Law Review published a series of essays addressing the role of students in the law review publication process. (1) The following year, the Stanford Law Review conducted a law review conference entitled "Law Review Conference." (2) Although there were many calls for further research into the functioning of the law review, (3) few, if any, studies were undertaken or published as a result. (4)

   After nearly a decade of relative dormancy, the topic appears to be active again. In December 2004, the Harvard Law Review conducted a survey of nearly 800 law school faculty, almost ninety percent of whom agreed that articles were, in general, too long. (5) Judge Posner, the keynote speaker at the Stanford conference, has returned to the fray, removing his action from the pages of the law reviews themselves to the more generally-circulated Legal Affairs. (6) And once again, student editors have felt the need to defend themselves against the onslaught of criticism. (7) But still there has been little serious study of this important but widely-criticized institution. Though critics complain about the process, their understanding of how legal journals decide what to publish is generally limited to their own experiences, either as editors when they were in law school or as authors.

   It was against this backdrop that we designed our survey and circulated it to the editors at about 400 (8) student-edited law reviews (9) asking a set of questions designed to peel back the curtain that has shrouded the article selection process. We received 191 responses from 163 different journals. (10) Though, as might be expected from an exploratory survey, the results raise at least as many questions as they answer, we 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.

   Our Article proceeds in four parts. Part II places our survey in its proper context by reviewing some of the criticisms of the student-edited law review, particularly with regard to article selection, that have been raised in the published literature. Part III provides an overview of our methodology, both for the survey itself and for our statistical analysis. Part IV reviews the quantitative results of our analysis and examines what they tell us about the selection process. Part V briefly summarizes the findings we consider to be most salient and discusses their implications.

2. THE CRITICISMS OF THE STUDENT-EDITED LAW REVIEW

   The subject of the student-edited law review has generated far more than its share of published invective. While scholars' discontent with the institution is unsurprising given its importance to the progress of their careers (no doubt there is much grumbling behind closed doors about the activities of tenure and promotion committees as well), it is unusual that so much of the grumbling about law reviews takes place in public and is printed by the law reviews themselves. A few examples will serve to highlight the level of disdain that the institution of the student-edited law review receives from its detractors:

   * Professor James Lindgren opens his essay on the subject with a section entitled "Crimes Against Humanity" that begins "[o]ur scholarly journals are in the hands of incompetents"; (11)

   * Professor Bernard Hibbitts complains that "the concept of law students exercising quality control over legal scholarship borders on the oxymoronic"; (12) and

   * Judge Richard Posner finds that "what is wrong is the law reviews' failure, and perhaps inability, to adapt to the changing nature of American law and American legal scholarship." (13)

   Although the most vitriolic of the criticism has been directed at the line-editing process and the perceived atrocities of the law review style, (14) it is in the article selection process that student editors wield the greatest power over scholars. Given the importance of article placement in tenure and promotion decisions and in reaching the intended audience, (15) claims that law reviews use the wrong criteria or (worse) no criteria at all in selecting articles cause understandable angst among authors. Professor Carl Tobias's assessment, for example, that "most editors possess strong predilections and act on them compulsively when making publication offers" (16) should strike fear into the heart of every author, especially because, despite the efforts of some commentators to illuminate those predilections based on what the journals publish, the article selection process is largely a black box.

   Because this Article seeks to open that black box, it is useful to review the sorts of specific criticisms that have been levied against the student editors of law reviews regarding article selection. Perhaps the most common claim is that 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. As Tobias puts it, "journals prefer to publish exhaustively footnoted tomes which appear conventional." (17) Professor Kenneth Lasson has suggested that, as a result, "[t]he notes often take on a life of their own, snuffing out whatever line of logic the writer seeks to impart." (18) The Stier survey found that, across the board, law review readers felt that articles were too heavily footnoted. (19) Many have also criticized the complexity of the Bluebook itself. (20)

   Given that one of the few aspects of the editing process that nearly everyone agrees students are qualified to take on is the checking of citations and that these checks (not to mention the picayune details of formatting the citations) occupy (some would argue unnecessarily) much of the editors' time, it would not be surprising to find that this was a matter of some concern to Articles Editors. (21) Nevertheless, if this criticism is accurate, Articles Editors' excessive focus on the condition of the footnotes might prevent important articles in need of some revision from landing in the caliber of journal they deserve. This is one of several areas in which the complaints levied against student Articles Editors are wrapped up with a concern that law reviews are not meeting the needs of their readers or are not publishing the "right" articles by the "right" authors. (22)

   A related claim is that, in an effort to overcome the inexperience of student readers, authors feel compelled to include large, expository sections that place their insight in the context of existing scholarship. Thus, Professor Lindgren is of the opinion that "law review editors respond positively to the padding that weights down most law review articles, accepting long articles more readily than short articles." (23) The Stier survey found that law review readers felt that articles were too long, (24) so this is another area where the selection process may be adversely affecting the law reviews' ability to meet the needs of the scholarly community. The Stier study also found, however, that attorneys and judges frequently use law reviews for "a general overview of existing law," using them in much the same way as treatises. (25) Although those groups, like professors, wanted articles to be shorter, it is possible that it is precisely these expository introductions that are of the most value to practitioners and judges. (26)

   Though these are potentially valuable criticisms, they represent facts that, if they are generally known, (27) authors can deal with prior to publication. The need to include expository sections and footnotes may slow authors down (28) and reduce the number of manuscripts submitted, (29) but it should not prevent anyone who understands the rules of the game from getting published. Of more concern are criticisms that skew the substantive content of the articles that get offers of publication.

   One criticism in this area is that Articles Editors' attentions are too likely to be swayed by "hot, trendy or cute topics." (30) Whether this is of concern, of course, depends on one's view of the purpose of law reviews. Since many readers of law reviews use them "To Track Current Developments in a General Area of Interest or Practice" and "To Identify New Approaches Toward or Developments in Specific Legal Topics," (31) a focus on what is trendy might, in fact, serve readers well. On the other hand, articles on trendy topics will become stale quickly. Given the relatively protracted editing and publishing process at law reviews, (32) law reviews may frequently find themselves publishing articles that are already out-of-date if they concentrate on these topics. (33)

   Judge Posner has expressed concern that, 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. (34) His claim is that student editors were "quite good by the scholarly standards prevailing" during the so-called Golden Age of the law review, which lasted until about 1970. (35) During the 1970s and '80s, however, "[d]octrinal scholarship as a fraction of all legal scholarship underwent a dramatic decline to make room for a host of new forms of legal scholarship." (36) According to Judge Posner, this change left Articles Editors floundering in a "scholarly enterprise[,] vast reaches of which they could barely comprehend." (37) The solution, says Judge Posner, is to let the law reviews focus on doctrinal scholarship and "leav[e] to the growing number of faculty-edited journals the principal responsibility for screening, nurturing, improving, and editing nondoctrinal scholarship." (38) It is not clear that Posner's predicted trend...