As mentioned, I recently submitted an article to law journals. Despite the fact that I was a law review articles editor, I found the process both mysterious and bewildering from the author's point of view. The blogverse abounds with tall tales and rumors, from "fast as Domino's pizza delivery" acceptances to editors who spend their Saturday nights sending out rejections. In the midst of such craziness, the Greedy Clerks board (which should really be retitled the Not-so-Greedy Ex-Clerks board) was an invaluable source for solid information.
I'll blog later about my own experience as an author, but for now I thought I'd contribute what I can to lessening the mystery of the process slightly, by explaining as well as I can remember what went on in my mind, and in articles board meetings, when I was on the other side. Obviously, I can't claim that this is a typical law review experience; indeed, I know that many of our procedures were unusual. But since so many people (these days, myself included) are curious about how the process works at individual law reviews, I thought I'd put it out there.
Many law professors are concerned about having their articles reviewed by students. While, having worked at a peer-reviewed journal I have some thoughts about how that process compares to law reviews, I will say that my colleagues on the articles board resembled, say, Ph.D. students more than typical just-out-of-college kids. With one exception, all of us were over 30 and had a master's degree before coming to law school. All of us had ambitions to be academics. We took the process very seriously and, in a policy I've heard is somewhat unusual, always sought a faculty opinion before accepting an article and before rejecting an article that made it to the final stage of review.
That said, I believe the process was a mess, and inevitably somewhat arbitrary. We were a pretty highly ranked law review (though we regularly lost pieces to Yale and Harvard), so just about everyone submitted to us, meaning that was got somewhere between 2,000 and 3,000 articles a year. These were divided among five of us, meaning that each of us had to read a few articles each semester, plus the articles that other editors forwarded to the whole board for further consideration.
Given this, I think the important thing to understand about our process, the thing that many authors lose sight of, is that we were not running a contest - we were not trying to pick, of that 2,000-plus, the very best articles we could get. Such a task would have been impossible not only because of the sheer volume of submissions and the fact that we couldn't possibly know everything about every subject area, but because of the apples-to-oranges comparisons involved in weighing, say, a groundbreaking article on a narrow aspect of tax law against, say, a slightly less groundbreaking but still worthwhile article on the death penalty. (Obviously, of the two, one could disagree forever about which is a more "important" piece of scholarship; further, in the vast majority of cases, anyone qualified to judge one will not be qualified to judge the other.)
Because we had no feasible way to select "the best," what we were looking for instead was something different - articles that we believed represented a sufficiently high level of quality to be worthy of publication in our journal. Basically, then, when one of us ran across an article he or she felt merited publication, that person would take it to the full board; if the board agreed, and there was space, and Yale didn't steal it out from under us, we'd publish it. This seems obvious, but in reading authors' comments about the process, it seems clear that many of them regard it as a competition, and a fairly orderly one, in which articles are directly weighed against each other, and that somewhat misconceives the process, at least for us. When we floated an article to the whole board, we had normally read only a small percentage of that semester's submissions, and had no idea what else was out there, or if the article in question was the 5th best or only the 177th best; we simply knew that it was an article that we liked and would be happy to edit and publish.
There were, also, several elements of arbitrariness built into the process. First, we were only human, and as our tenure wore on, we had to skim a lot, and discarded many articles after the first few pages. Second, as mentioned, we were fundamentally looking for articles we liked, and what we particularly liked had a lot to do with our individual interests. Therefore, our board was particularly responsive to articles about intellectual property, immigration, and legal history; we were less responsive to articles about tax, corporate law, and employment discrimination (which is not to say we did not consider articles on these subjects when they were particularly good). While sorting by subject matter in this way was, in some sense "unfair," I believed and continue to believe that with 600-odd journals in the country, any article with merit was bound to get published by a good one, and that, as long as we fulfilled our obligation to search for and publish high-quality articles, we were doing our jobs responsibly. Further, I think there's a great deal of benefit to having a variety of law journals edited by students with a variety of values and priorities - both because it gives the author of a slightly offbeat or daring piece a better chance of being published and because, frankly, it makes law reviews more interesting to read.
It's because of this belief that I really have come to despise the expedite process (whereby an author tries to shop up an offer to a slightly higher-ranked journal), because it is fundamentally founded in the "contest" model described above. But more on this later.
