One View of the Sausage Factory

Thanks to Roger and everyone at Opinio Juris for giving me this opportunity to pen some thoughts about law journal submissions. I hope to provide an inside look at how the sausage is made—and in so doing, shed light on some trends evident from our side that might be less apparent from your side. Because journals treat submissions practices like trade secrets, I’m constrained in how candid I can be. I should also emphasize at the outset that these opinions and observations are my own, not those of the University of Chicago Law Review. They shouldn’t be taken to reflect or represent the policies, practices, or experiences, of that journal (except where specifically noted). Besides, in order to make my comments more generalizable, I’ll be abstracting away from my particular experiences as appropriate, drawing upon conversations I’ve had with editors at other journals.

I’ll start with two ugly truths about article submissions. The first is that there simply isn’t enough time to review every article with the depth and attention that they deserve. The most popular journals may receive upwards of several thousand unsolicited article submissions each year. The details are different from journal to journal, but professors seem generally to adhere to a bimodal submissions schedule (spring and fall submissions periods). The time crunch arising from this schedule only compounds the problem, as I explain at the end of this post. Of course, I expect that at most journals, editors make (and take seriously) a commitment to give every submission at least one read. Even so, this review will not always be as thorough as would be commensurate with the substantial labor investments authors make in writing articles.

If this means that there needs to be a cursory review stage early in an article’s submissions life cycle, the second ugly truth is that articles can be quickly sorted at a cursory review stage into two piles—”reject” or “consider further.” The upshot is that more articles are likely to survive initial review than one might expect. Journals have different policies about these things, and individual editors have their own idiosyncratic preferences. These will manifest in rather divergent first-cut culling rates across journals, so your mileage may vary. In future posts I hope to explain some pitfalls that lead editors to put an article in the first pile, and some factors that may make editors more likely put an article into the second pile. For now, it’s enough to admit that law review editors turn to imperfect proxies in evaluating submissions. After all, as Brian Tamanaha observed a few years back, we are “students, after all, with classes, exams, and jobs.” He also added that we have “limited knowledge about law.” This is overstated, for journal boards will aim to have different competencies represented in their articles group—someone who can evaluate bankruptcy pieces, someone who can evaluate international law pieces, etc. (I will return to this point in a later post about agenda-setters.) I disagree with Tamanaha’s suggestion that author identity—the “elite letterhead”—is the most obvious proxy of article quality. The identity of an author’s institution likely correlates, if loosely, with the quality of her prior work. But the quality of the author’s current work is what editors care about. And my claim is that even 3L editors with “limited knowledge about law” are often attuned to the quality of articles on their merits.

So let’s take elite letterhead off the table and replace it with a more likely suspect: the request for expedited review. This allows editors at the later-in-time journal to capture signaling benefits that accrue from the deliberative labor of editors at the earlier journal—all without incurring the review costs themselves. Most importantly, there are opportunity costs involved in selecting one article over another. Page space is scarce. Articles board members will rationally care about the articles they publish in their volume, either for intrinsic reasons (interest in the subject, interest in sending a message, interest in academia), or for the reputational benefits that accrue from being affiliated with any marginally higher-“quality” article. Additionally, there are costs involved with reviewing articles, deliberating upon them, and coordinating acceptance offers. Finally, there are costs associated with the uncertainty about whether any given article has actually filled an article slot or whether it’ll get “stolen” away, an uncertainty that lasts while it remains expedited to other journals.

These signals are costly. As Adam Samaha might say—channeling Eric Posner—“costly signals are credible signals.” Especially during the biannual dump periods, when editors at popular journals may be facing daily submissions rates of several dozen articles per day (or more), it’s tempting to rely on these credible signals to make the job easier. This system works well as a proxy supplementing more thorough review of submissions, but would be inadequate on its own. Under a system using that review rule exclusively, many excellent articles would inevitably slip through the cracks by not being picked up at all, or by being picked up by a journal that makes an exploding offer not amenable to further expedited review.

The signaling function of expedited review only works when earlier journals actually make offers. Over the last year I noticed a dramatic rise in authors’ use of the “soft expedite,” a message explaining that another board has informed the author that they expect to bring the article to full-board review, and expect to have a decision by some specific future date. These emails are rarely useful, although an important exception is for those few journals that notoriously make exploding offers of less than, say, 24 hours. (I don’t intend to offer detailed thoughts on the exploding offer, which strikes me as a useful if inconsiderate means of protectionism. I’d be interested in hearing reactions from other recent editors and from authors.) In that post from several years ago, Orin Kerr correctly suggests that a board may face expedited review of an exploding offer without enough time to consider it seriously on the merits. But Kerr is wrong if, as his post’s conclusion suggest, he believes that when boards must review in the shadow of an exploding offer they are likely to be swayed by shiny objects like a professor’s name and school, in lieu of considering the article’s merits.

More likely is they’ll simply decline to act on the expedite request at all (which is why I called the exploding offer a form of protectionism). Unless the article is already teed up for immediate review, boards will find it too difficult to coordinate schedules, distribute and read the article, and reach an answer in time to contact the author before the offer expires. “Soft expedite” emails are thus helpful for the narrow group of journals that are known to give very short deadlines. For journals that have normal-length offer windows, soft expedite emails are useless. The signal they carry is not costly and is thus not credible: it means only that a board is investing time in reading and meeting on an article, not accruing the much higher opportunity costs of making an offer. And as a pragmatic matter, from the perspective of an overworked editor it can be frustrating to get hundreds of emails offering (more or less) variations on this theme: my work may receive an offer in the future and you may have a normal amount of time to act upon it. So authors might think twice before sending their second, or third, soft-expedite-update email of the day.

One last thought for today’s post. There seems to be a good deal of grumbling on the blogs about the pernicious effects of the articles submissions calendar—specifically how this can lead to editors using imperfect proxies for evaluating an article’s merit. This system is, to a large extent, a function of the choices authors themselves have made. This winter I received more than a handful of emails from RAs and school administrators asking when our board turned over, some explicitly saying that the authors thought they would have better luck in front of a newer (less experienced?) board. The “first-mover” advantage that people seek to get by gaming the system this way makes sense only if journals fill up their entire volumes in the space of a month in the spring. Many journals, including Chicago’s, consider articles year-round on a rolling basis. Authors don’t take advantage of such review policies even when journals publicize them, seemingly preferring to stick to the dump-period model—again, maybe on the assumption that less experienced boards are less discriminating. Yet the submissions volume during the articles dump period makes it costlier for editors to review any given article, and more likely that an article we might otherwise like to publish will slip through the cracks. I suggest authors might be able to get around concerns about proxy decisionmaking by avoiding “gaming” the system at all. In other words, authors should move away from the “mad rush in February” model, and toward a model in which they submit no sooner and no later than when the article is “complete” enough to be published.

In future installments I hope to sketch out some thoughts about agenda-setting on articles boards (and what this means for international law scholars looking to publish in mainline journals); about recent trends in international law scholarship; and about some of the more enduring debates about the merit of student-edited journals.