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Thursday, May 26, 2011

Interview with a law review article submission editor: Carl Engstrom of the Minnesota Law Review

There is a lot of discussion on law professor blogs, including but not limited to this one, about law review submission strategy.  And in those discussions, there is a lot of conjecture about how articles editors make their decisions.  I say “conjecture” because for some time, a voice missing from this discussion is one that could actually shed light on the selection process rather than having law professors guess at what matters and how to craft submission strategies:  law review article editors themselves. 

Fortunately, though, there’s been some contribution to this dialogue lately from law review article editors, most recently James Tierney's thoughtful series of posts at Opinio Juris.  In order to continue this dialogue, I interviewed my good friend and college classmate Carl Engstrom, who just completed his 2L year and is currently an article submission editor for the Minnesota Law Review.

Carl answered my many questions about the myths and non-myths law professors have about the article submission process, and our discussion appears below.  A few quick caveats are in order before beginning.  This discussion reflects Carl’s sense of the submission process, to the extent that he’s been through it as an article submission editor exactly once (spring submission season 2011).  And this discussion reflects only the views of a single articles editor at a single law review.  Obviously, things change from law review to law review, and may also be different at the same reviews as boards turn over.  But with that in mind, here we go:

Dave Fagundes:  Would you say the school letterhead under which a submission is made is a dominant consideration for articles editors?  Law professors certainly seem to think so.

Carl Engstrom:  It has some influence, which is probably unfortunate.  If a submission comes in from a professor at a fourth tier law school, there is likely some tendency to prejudge the work, so letterhead from lower-ranked schools may make it somewhat harder to get an article accepted.

That said, however, letterhead is never dispositive, and can be easily overcome if the substance of the article is impressive.  Minnesota Law Review in particular perceives itself as a journal that tends to be more aggressive in terms of taking articles that have impressive substance even though the author is not from a well-known school.  To give some indication, only 6 out of the 18 articles I bumped (i.e., recommended for review by the 5-person articles committee that ultimately extends offers) during the Spring 2011 submission season were written by professors at top-25 schools.  

And there’s a countervailing consideration:  We take this process seriously, and don’t want to think of ourselves as mechanically reproducing the US News rankings hierarchy, so this causes us to want to resist using a professor’s school as a simple proxy for quality.

The interview continues below the fold.

DF:  So what external factors—that is, factors other than the quality of the article itself—do influence the process?

CE:  The CV is probably the most important such external factor.  The author’s publication record is definitely taken seriously.  If they’ve consistently been publishing strong work, that makes a positive impression.   The author’s educational background and professional background are also influential.  For these reasons, the CV is the first thing I read, usually briefly, before moving on to the article itself.

DF:  What about the cover letter?

CE:  It’s usually pretty marginal, especially since so few authors include relevant information in it.  At the outset of submission season, I took a look at them, but as the season went on and we were crushed by the volume of incoming articles, I started throwing them away entirely unless they seemed to add really important information.

DF:  What kind of information in a cover letter would rate as really important?

CE:  Any information that indicates how the article has been perceived so far.  For example, if an article has been a big hit on SSRN and is getting a bunch of downloads and has been included on lots of big SSRN top-ten download lists, this is relevant because it suggests that the article will be cited heavily when published (and future citations matter to us a lot).  Also, if an article has been accepted for presentation at important conferences, this may be helpful information about how it’s perceived by peers.  Of course, we don’t necessarily know the significance of various conferences, so if an article has been accepted at a conference that is a big deal, or has received any other honors worth mentioning, authors need to explain that to us so we have a sense of why it matters.

DF:  How much does the “sexiness” of the topic matter?

CE:  Sexiness matters, but not for the reasons many people think it does.  Sometimes it can be a negative to write about a very current issue, because odds are that countless other people in your field are also writing about that issue.  For example, it seemed this past submission season that about a quarter of the incoming articles were about the financial crisis.  There were so many of them that writing about this subject matter probably decreased authors’ chances of acceptance, despite being very topical.

Subject matter can be a plus if it makes the article more interesting.  It’s appealing when an article takes on a topic that affects our daily lives.  Probably my favorite piece that I read, and that we will be publishing in next year’s volume, is about knockoffs of high-status consumer items, like a Coach purse, and the extent to which trademark should regulate transactions when people know they’re buying knockoffs (viz., “Veblen Brands and Invisible Hands in the Market for Social Expression,” by Jeremy Sheff).  This piece is not topical in the sense of relating to a major recent news event, but is very socially relevant in the sense that it relates to something we see around us every day.  This isn’t to say, though, that being current or trendy in any of these senses is necessary to getting published.  It helps, but quality is always the dominant consideration.  If an author seems to be arbitrarily trying to pique interest by picking a “sexy” topic, but the thesis seems uninteresting or poorly executed, that article stands no chance of going forward in the submission process.

DF:  What other factors aside from subject matter and, of course, quality of argument do you find influential when reading a piece?

CE:  It’s probably marginal, but formatting can make a difference.  Some articles come through cleanly formatted and looking like they were made with a law review template in terms of margins and running header.  Others look like standard MS Word documents, and sometimes have weird fonts or other formatting quirks—this doesn’t help make a good first impression.  I should emphasize that while an editor would never consciously make a decision on such a basis, on a subconscious level, it’s easier to imagine a piece being in your journal if it is formatted like an article in your journal.

Related, and probably more important, it helps if an author has made an effort to clean up the footnotes.  Obviously we don’t expect articles to be perfectly Bluebooked, but some pieces come through where the author has clearly made no effort to Bluebook the footnotes at all.  In very close cases, these kinds of articles are less likely to make it through the process.

DF:  So now let’s talk about expedites.  Lawprofs tend to think they’re hugely important.  Is this right?

CE:  Expedites drive the process, but don’t guarantee a good result.  When the process is at its peak in mid-to-late March, it’s a crisis-driven process, and the articles editors and board are just barely keeping up with the massive workload.  Often we’re getting 5 expedites a day, and at its peak this year the articles board was meeting 3 to 4 times a week to discuss at least ten “bumped” pieces at each meeting.  However unfortunate this may be, articles that are not on expedite aren’t going to get immediate attention, because there is no time imperative to review them. 

So an expedite can get articles editors to look at a piece sooner than they would have otherwise, but this doesn’t mean they’ll be more likely to accept it.  For one thing, the source of the expedite matters, probably more than it should.  If an author expedites from a specialty journal at an obscure school, that won’t have as much of an impact as an expedite from a mainline review at a peer institution.  In fact, I think that an expedite from an obscure journal may actually hurt the author’s chances of getting an offer extended, because subconsciously editors may associate the piece with the source of the expedite.  Again, we know this isn’t ideal, and in a world of infinite time we’d certainly ignore these kinds of proxies, but when you have as little time as we do, it’s an unfortunate necessity. 

This kind of expediency is also a two-way street.  We’re also well aware that lawprofs are often just using us as a step in their own expedite process, and we have to be resigned to the fact that after doing lots of work and getting excited about an article, we’ll make an offer, only to have the author use the offer to aggressively seek to place at higher-ranked journals. 

DF:  Any thoughts about the ideal time to submit an article?

CE:  It’s impossible to pick a date that will be ideal for all journals, since schedules change from year to year, and boards turn over at different times at different schools.  But just this past year at Minnesota, I’d say that submitting late February-early March was probably ideal, because while our process tends to be going most actively in mid- and late March, it takes a while to get an article into the queue, so submitting much after mid-March can make it harder to get attention as the board and editors are swamped with looking at the hundreds of articles that were submitted a few weeks before.

DF:  OK.  Is there a time past which submitting is just a waste of time?

CE:  It’s probably a waste of time to submit an article after early-to-mid April, because by then most of the slots are full, fatigue has set in, and it’s probably better to wait until fall.  I can speak from personal experience in saying that by mid-April, it was extremely difficult for any article to stand out.  My rates of “bumping” pieces plummeted after around April 1st.  But in theory, it’s always possible to place an article regardless of when it’s submitted.  If we got something in May that was an absolute blockbuster, we would make an offer; it’s just rare that this happens since almost all submissions happen during peak spring and fall seasons.

DF:  Is there anything authors do that tends to reduce chances of acceptance?

CE:  Well, again, thesis is everything—a persuasive, interesting, well-supported piece will likely succeed regardless of ancillary considerations.  But one thing authors do that can cut back against even a persuasive thesis is overstate its importance.  Obviously it’s helpful to explain the importance of your claim, but it’s pretty obvious when authors overclaim this, by asserting that their suggested fix to a subset of the habeas corpus statute will cause a foundational re-imagination of the landscape of American law.  So it’s great to be ambitious, but don’t overdo it.

I’d also suggest including a CV, for the reasons we discussed above.  Some authors include their CV within the cover letter, which can cause it to get lost or overlooked, so don’t do that either.  And also as we discussed before, poorly or strangely formatted articles with sloppy Bluebooking are less likely to be taken seriously, though this can be overcome by outstanding content.

Final point on this issue:  it’s a joke among our group of articles editors that every other article has the phrase “much ink has been spilt” in the introduction.  I’m not sure why this happens to be such a frequently used cliché, but it’s way overused, and I’d suggest avoiding it because it comes off as unoriginal and kind of annoying.

DF:  Great, so at a big-picture level, how much of an author’s success in the submission process seems due to status, strategy and gamesmanship, and how much is about the quality and content of the article. 

CE:  It really is much more about content than anything else, though this depends on the stage of review.  At the initial intake stage, especially when the submission season is at its peak and we’re all swamped, ancillary issues like status or formatting might loom larger than at other times.  But once an article makes it to the Articles Committee, it’s really all about the article—its relevance, quality of reasoning, and originality. 

DF:  Any final thoughts for authors?

CE:  Yes.  A few of us read the lawprof blogs, including this one, and it’s always dispiriting to see how much apparent contempt there is for articles editors, with authors dismissing us as “stupid 2Ls” who don’t know anything about their areas of expertise.  For one thing, we’re well aware that we don’t know nearly as much as the professors who are writing and submitting these articles, and because we are aware of our own shortcomings, we work incredibly hard to try and make every decision we make an informed one. 

And if a law student has chosen to be on law review, and then opted to be an articles editor, they’re someone who is really interested in legal scholarship, and also look up to the professors whose articles we are publishing.  To read these same professors refer to our work, or even our intellect, in such negative terms is quite upsetting.  So a little more generosity of spirit toward those of us who give up our time to edit and publish your articles—for free, after all—would be nice.

Thanks to Carl Engstrom for taking the time to answer all of my questions in such detail.  I hope this has been helpful to authors of law review articles in getting a better sense of how the submissions process works.  I’ve given this link to Carl, and he’ll be keeping an eye on the thread, so if others are interested in posing questions about the process, feel free to continue the discussion with Carl in the comment thread.

Posted by Dave_Fagundes on May 26, 2011 at 09:18 AM in Law Review Review | Permalink

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Comments

This was super. Thanks, guys.

Posted by: BDG | May 26, 2011 9:26:53 AM

Very interesting. Another question: is it better to submit an article in the fall (and if so, when), or is it better to hold off until the spring submission season?

Posted by: Josh | May 26, 2011 9:41:37 AM

It would be quite helpful if we knew of any law reviews taking submissions over the summer.

Posted by: anon | May 26, 2011 10:10:39 AM

I don't have a lot of insight into whether it is better to submit in the fall or in the spring. For our journal, a spring submission makes publication more likely, as we have filled about 80% of spots. In previous years we are typically full by mid-to-late September. One consideration should be the type of article the author is trying to publish. If the article relates to a more specialized field like tax, IP, bankruptcy, etc., generalist journals are typically hesitant to publish more than one article in that area in any given volume. I think Dan Markel's post on this subject is spot on: http://prawfsblawg.blogs.com/prawfsblawg/2011/05/why-is-it-so-hard-to-publish-an-iptaxadmiraltyweirdlaw-article.html

So I generally think spring is probably a bit more favorable, but I doubt that it matters a great deal unless you are trying to publish in a more specialized area. In that case I think that submitting in February seems advisable.

Posted by: Carl | May 26, 2011 10:24:31 AM

In terms of summer submissions, I know that Minnesota Law Review is accepting submissions all summer, although they seem to trickle in at a much slower pace than was the case in spring. I can't speak about the practices of other journals in this regard, however.

Posted by: Carl | May 26, 2011 10:26:57 AM

The comments about SSRN downloads are interesting - when should one post an article to SSRN? I've been hesitant to post an article to SSRN before it has been accepted for publication, but that seems to be wrong...

Posted by: anonnewprof | May 26, 2011 10:28:32 AM

This was an extremely helpful post. Thank you.

Posted by: 4thyrLawProf | May 26, 2011 10:41:02 AM

I realize that 2Ls try incredibly hard to make good decisions, and that disrespectful language can be hurtful. But I recall when I was on the Harvard Law Review staff, and I think that there were several times when we just didn't know what we were doing. While I was there, we managed to reject an article that later won an national AALS award for best paper by a new law professor, even while accepting a piece on cyberspace whose reason for appearing in a legal journal was always unclear to me (cyberspace was very trendy at the time).

On the other hand, it's easy to find well-informed critiques of peer review in various fields as relatively worthless or even harmful by ossifying the conventional wisdom, etc. I don't know what the answer is.

Posted by: Stuart Buck | May 26, 2011 12:02:09 PM

Stuart, I remember both of the articles you're referring to, and I don't think either illustrates that there's some kind of systemic problem with the law review articles submission system overall. The article that won the award ended up in a top-8 law review, just not HLR. The one about cyberspace, yeah, I don't think it was that great either, but that author and his work are held in very high esteem by many in the academy, and the article you're referring to has been cited around 70 times, so it's hardly an example of an unequivocal travesty of a publication.

All I think this means is that the process is imperfect (as is peer-review, despite its many defenders), though we've all known this for ages. But it's not that bad. Most really good work ends up in some good publication (as the first example illustrates), and it's often hard to agree on what really good work is, because reasonable and well-intentioned minds may differ (as the second example illustrates).

In any event, Carl's point wasn't about substance but style. Everyone knows that at times articles editors won't make the best possible decisions, and how could they be expected to? They're law students after all. The point, as I take it, is that law professors should see the work done by articles editors in a generous light, and refrain from a lot of the mean-spirited snark that pervades the prof blogs.

Posted by: Dave | May 26, 2011 12:35:50 PM

Dave: The one about cyberspace, yeah, I don't think it was that great either, but that author and his work are held in very high esteem by many in the academy . . . Yes, because he was published in the Harvard Law Review! :-)

Seriously, this was a good interview: It matches up nicely with what I've heard from articles editors over the years

Posted by: Orin Kerr | May 26, 2011 5:24:40 PM

I wonder if professors who served on the submissions committee of their law review (as students) are more sympathetic or optimistic about the article selection process than those that either weren't on the submissions committee (or weren't on law review at all).

Posted by: GU | May 26, 2011 5:45:14 PM

The system needs to be shaken to its core. Here's an idea: Highly secure, tenured professors should accept the first offer they get. No expediting. The best work, that way, is as likely to appear in the East Dakota Law Review as the Yale Law Journal. If this actually happened, no one important would regard placements as important, which would be a big victory for those of us concerned about 2Ls having so much power and the proliferation of gamesmanship and strategy over content.

Posted by: Anon. | May 27, 2011 3:48:16 PM

Speaking as a former Senior Articles Editor, this interview also aligns with my experience on a similarly-ranked Law Review.

Posted by: Sean M. | May 30, 2011 10:51:23 AM

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