Overcoming Articles Adversity

 

There’s a persistent theme in legal academia that certain types of articles, written by certain types of professors, are disadvantaged come submissions season. Is that correct? Well, yes. But the commonly articulated pitfalls — non-sexy topic choice and letterhead bias — can be mitigated considerably.  Below, I’ll give my impression of the lay of the land, and some tips for reducing their impact as much as possible.

First, it’s not as bad as you think. Does letterhead bias exist? Yes, absolutely — I’ve read too many stories of overwhelmed AEs who simply say they won’t look at pieces whose authors reside at lower-ranked schools. I don’t condone that practice at all, but I know it exists.

But there are some countervailing considerations. For one, sometimes there are AEs with a redistributionist agenda — they actively want to publish articles from professors who are not at Harvard, Yale, or Chicago. And the good news is, I think that mentality is more common at the very top journals. In part, I think that’s because they feel a particular professional obligation to “level the playing field”. And in part, it probably stems from the fact that many AEs on those journals have academic aspirations themselves, and have enough awareness to know they likely won’t be starting their careers at Stanford. This year, we may be all-powerful kingmakers, but next year we dive into obscurity the same as everyone else. It’s to our advantage to drop a rope down after us.

Meanwhile, even AEs who couldn’t care less about this sort of thing will soon learn that, unfortunately, a not-insubstantial portion of submissions from the “elites” are pretty much being phoned-in. That gets very aggravating, very fast, and can quickly leave a sour taste in one’s mouth. The grim truth is that discovering bad articles can come from all quarters is likely to inspire AEs to search for good articles in all quarters.

Topic travails are another common theme amongst authors, who worry that their great piece on corporations will go unnoticed amidst a sea of constitutional law submissions. Again, there is more than a grain of truth to this. But the way to think about it is to recognize that, in effect, you’re not submitting your article to every journal you select on ExpressO. Rather, you’re submitting your piece to every journal who has an Articles Editor that is somewhat interested in your topic, and who might be willing to shepherd it through the selection process. Constitutional law has an advantage because essentially every journal has somebody who is interested in constitutional law topics. Corporations, not so much. But for the journals who do have that guy, I don’t think your piece is on any worse terrain than the con law piece. Indeed, because law reviews are often concerned about having a balanced volume, there will often be a fair amount of deference to the corporation guy’s pick for his or her favorite article in the field.

The problem is that these things are mostly out of your hands. Is there anything you can do to make your piece stand out? I think so.

(1) Follow genre conventions. The formatting of the submissions we receive exist on a continuum, ranging from “seminar paper” (I got one which still had the name of the professor and class the piece was originally written for) to “fully formatted law review article.” The latter, needless to say, is better. We want to be able to imagine simply sending your submission to the printer without doing any work ourselves. That never happens, of course, but the fantasy gets us in the right state of mind.

I understand that many law review conventions — from length to overfootnoting — are justly controversial, but now isn’t the time to fight them. Download a template (or borrow from a previously published piece) and insert your piece inside of it. Make sure everything is in proper Bluebook form (or at least, that the Bluebook errors are of the sort that require the obsessive-compulsive eye of a Managing Editor, not an AE, to spot). Make sure it is the right length (17,000 words+) and has that classic fully-footnoted look. If the notes section looks a little thin, adding parentheticals is a great way to buff it up with minimal extra work (and you can always delete them). As far as I’m concerned, double-spacing is a kiss of death (some people prefer it for editing, but I don’t think anybody will dispute that it looks less professional. An editor who wants to double-space to leave more room for notes can do so with two clicks on Word, an ugly first impression, on the other hand, lasts forever).

It’s not fair that aesthetic concerns like this matter so much, but they do — and as simple as it sounds, following the above advice immediately will set your piece apart from 90% of what we receive.

(2) Go big. Another common critique of law review culture is that it privileges “high theory” pieces at the expense of those useful to working practitioners and judges. One could defend against this on its merits, and one could also argue that scholarly journals shouldn’t always have to be 100% practice-oriented. Either way, though, I think it is fair to say that the top journals like ideas that feel like “big ideas”.

Probably the second cut I made as an articles editor, after getting rid of the mediocre (and worse) submissions and trying to make distinctions amongst the vast pile of articles which all were decent enough, was asking “is it going for enough?” For many articles, the answer was no. The paper’s ambition was to explain how a particular section of Tax Code was economically inefficient, and it did so in perfectly lucid, satisfactory way. But ultimately, that’s all it did. We called those articles “small ball”, and they didn’t get far.

Of course, nobody can have a big idea for every article. But if you do have a big idea piece, that’s going to be a much better candidate for consideration, and you’ll want to flaunt it’s status. A cheap way to do this is to give the piece a very short title (without a subtitle). I don’t have any intrinsic objection to subtitles — in fact, some of them are awesome. But the advantage of a very short, very direct title is that it makes your piece sound definitive. The three articles from our latest issue are titled The Alien Tort Statute and the Law of Nations, Reconsidering Racial and Partisan Gerrymandering, and Strategic Liability in the Corporate Group. Short, sweet, and to the point, these titles send the message that they are the go-to piece on a fairly broad topic area. And hey — even a corporate article in there!

(3) Press the Advantage. For the most part, law reviews are interchangeable. You generally want to publish with a higher-ranked journal over a lower-ranked one, of course, but other than that you have no reason to prefer one over the other, nor they have any particular reason to want your piece more than any other journal. But occasionally, that’s not true, and when the opportunity presents itself, you should feel free to (tactfully) take advantage.

For example, we get a fair amount of exclusive or semi-exclusive submissions (semi-exclusive generally meaning that the author submitted to a half-dozen or so journals, with the promise that he or she will take the first offer extended). Generally, these work best for professors who are already well-established at top law schools — otherwise, there’s the risk of an “and you are…?” effect. But if there is a particular reason why one journal specifically is in your cross-hairs, it makes good sense to tell them so.

One author, for instance, specifically informed us that we were his top choice because his article was — though not a direct response — reacting against two other prominent articles previously published by Chicago that were often discussed as a set, and he hoped his piece would be considered part of that same “conversation”. We ended up publishing his piece. Obviously, if the piece wasn’t really good it wouldn’t have mattered, but a little sense of serendipity never hurt anyone. And of course, the knowledge that he wouldn’t use us as a launchpad to Harvard, for reasons that went beyond “hedging my bets”, was nice too.

Another time, we considered an article by a VAP at a relatively low-ranked school, who had just been hired as an assistant professor at another, also relatively low-ranked institution. The piece ended up reaching final review, but we didn’t take it. When that happens, we generally send out an email informing them that the piece had made it to the final stage but, unfortunately, we did not accept it. The author wrote a very nice note back, then informed us that she would be finishing up another piece in a few weeks, and would we be interested in reviewing it as an exclusive submission before she sent it out to other journals? We said yes. Of course, it’s not like we would have said “no” if she hadn’t just hit final review, but it is the case that — because she had gotten so close the first time — we were inclined to give this piece a very close look as well. Moreover, the fact that it made final review probably implies that there was some AE who really did want to publish it, is grumpy that it didn’t get through, and will be rearing to go to the mat during the rematch. As it happens, we didn’t end up taking the second piece either, but it definitely got a very close, serious look.

The takeaway is should be that there is a lot that is out of your hands, but definitely a lot you can do to improve your chances. Though a Yale Law professor writing about free speech is always going to be at an advantage, there are enough countervailing considerations and backdoor paths that I really do think that a good piece, by any professor, on any topic, should be able to find a loving and respectable home.

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10 Responses

  1. Orin Kerr says:

    Excellent advice.

    By the way, I thought the Bellia and Clark article you published was fascinating.

  2. young practitioner says:

    David,

    You mentioned the tension between high-profile and low-profile professors. What is the view (if any) toward articles by active practitioners — e.g., an article on the fourth amendment by a young public defender, or a biglaw partner’s perspective on a corporate or business law issue? Are these disfavored even more than a low-profile professor’s article? Are they considered in some editors’ “redistributionist agendas” ? Or are such articles so rare you never even really think about them? (If so, that’s a shame.)

    On a related note, I’m curious what the Chief Justice would think of law reviews if they published more “current” articles by practitioners in the field, rather than “big,” theory-based articles by “ivory tower” academics.

  3. A.J. Sutter says:

    y.p., you may want to check out the section publications of your state or local bar association, or of the ABA, if you want to publish — because the fact is, most practitioners, esp. at biglaw, don’t read student-edited law reviews. (I speak from POV of 25+ years of practice.) Go where your audience is.

    However, the bias against “small ball” articles from SELRs does seem like a real loss. No doubt there are lots of circumscribed, technical-seeming issues that could have great practical significance. Law clerks, I suppose, do read SELRs. Such articles were more common, it seems to me, 30 years ago. There’s a missed opportunity in today’s market — certainly there must be an editor who’d rather give the tax code a shot than help one more article about, say, what Foucault and Scalia have in common, or Deleuze & Guattari’s take on habeas litigation, to see the light of day.

  4. TJ says:

    y.p., obviously I’m not an article’s editor, but I did have the experience of publishing as a young practitioner myself. I would say there are three things at play (1) letterhead bias, (2) subject-matter bias, and (3) style bias. David has addressed the first two, and they can be overcome to some extent, and you will see practitioners publishing articles on corporate law or tax in law reviews, albeit not usually (but still occasionally) in the most prestigious law reviews.

    The third is something that you will not see overcome. What I call “style bias” is distinct from subject-matter bias in the following way. You can publish an article on why Section X of the Internal Revenue Code creates a huge loophole and courts should close it by adopting such-and-such interpretation (it won’t place very well, but you can get it into a law review). You will not find any takers for an article on how lawyers have not previously appreciated there is a loophole in Section X of the IRC and they should maximally exploit it to serve their clients’ interests. The latter style is more directly relevant to what lawyers actually do, but it is not “academic” in its style. You will see the latter type of style in practitioner-oriented journals all the time (and I published one such article myself).

  5. David Schraub says:

    I agree with TJ on the style thing as well, and for practitioners would doubly stress the “follow genre conventions” advice. A fair chunk of practitioner articles we receive are essentially converted briefs. I like reading briefs, I think they’re really interesting, but they’re not what we publish. Ditto with the “attorney-eye perspective on X area of law” — although we actually did have such a piece in our most recent symposium (but that piece really stood out precisely because it is exceptionally rare to see something like that).

    Practitioners rank higher than students but below low-profile professors (probably akin to law clerks on the submission hierarchy). They can be published (we published a piece by a Jenner associate last year), but again, they’re going to have to play by the rules. Essentially, a practitioner who is trying to become an academic and/or is willing to write an academic-style article can be published, but one who is writing for fellow practitioners is probably going to be in rough shape.

    As to the loss from not considering “small ball” articles, well, yes and no. If those articles weren’t being published anywhere, then there’d obviously be a loss, because such articles are really useful. But those articles do get published, just not in journals like Chicago. I don’t think there is anything intrinsically wrong with Chicago aiming for “big ideas” pieces, given the wide breadth of publication opportunities available for writers of legal scholarship.

  6. Guest says:

    What’s with all the guys? Are there no female law journal editors at Chicago?

  7. David Schraub says:

    Very few, and it’s a huge problem. We have a female EAE this year, which marks only the 5th female articles or executive articles editor in the past 10 volumes (69-78). The other editorial board positions tend to do a little better (the Managing Editor position was roughly 50/50 over the same period, though I’d guess that’s one of the best performances), and I know folks blame a pipeline problem (typically well over two-thirds of the incoming 2L law review membership is male), but I think it is a matter of serious concern.

  8. frankcross says:

    Interesting stuff. But I think the main point is to write a really good article on something of some significance.

    Then use these tips to maybe improve your placement.

    I’m intrigued by the semi-exclusive submission process. Does this happen much? Do you think it helps get your article attention?

  9. Semi-exclusive submissions seem to be a relatively recent innovation, and mostly we see them from younger faculty at top schools (an assistant professor at Columbia would be the archeotype). I think they do help get attention, and I certainly get their appeal — you get the perks of being before multiple journals, while still giving an incentive to journals to hustle and give your piece a look.

  10. Miriam A. Cherry says:

    Thanks for posting this – excellent advice.