TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, August 8, 2013

Tushnet: The Underplacement of Law Review Articles by Faculty at Lower-Tier Schools

On the plane today I read a terrific article, Brannon Denning and Michael Kent, Anti-Evasion Doctrines in Constitutional Law, 2012 Utah Law Review 1773. (And you should read it too.) Without (I hope) casting aspersions on the Utah Law Review, whose editors had the discernment to see the article's quality, I was struck by its "under"placement relative to its quality. Professor Denning tells me that they did a general submission, and Utah was the only offer they received. What might account for this? ...

My view is that the reason for its placement is that the authors teach at Cumberland Law School and John Marshall (Atlanta) -- lower tier schools in (of all places) the South. My guess is that the intake articles editors at top N law reviews looked at the authors' affiliations and read the submission with a prejudiced mind: "If this were any good, the authors would be teaching at higher ranked schools." ...

The other thing to note is that the star footnote might not signal the article's quality. (In roughly descending order of "heavy-hitter"-ness, from the point of view of articles editors [note that I'm trying to make a judgment about their judgment, not offering one of my own], the acknowledgements go to Eugene Volokh, John Harrison, and either Dan Coenen or Michael Greve.) So, I suppose the advice to scholars writing from second- and third-tier law schools is: Flood the heavy hitters with drafts, on the Nigerian scam e-mail theory that there's some chance that you'll get something back, and then you can put the heavy hitter's name[s] -- plural if you're lucky -- in the star footnote.

Law is complicated, and figuring out how to explain its complexity to the public is difficult. But trying to stay out of the weeds is a prescription for misleading the public.

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Comments

It's nice to know someone from Harvard knows how the other half live. PS - its not just editors at law reviews who think "if they were any good, they'd teach at a better school."

Posted by: Anon | Aug 8, 2013 5:42:37 AM

It likely is the prestige of the author's school. Similarly, a Vanderbilt editor recently said that they don't even consider practitioner pieces, so it's even tougher for those of us who practice law and like to write articles. The bottom line is that the law school industry -- from the profs down to the students -- is, largely, US News obsessed. They have to find some basis to distinguish themselves, and because every law school is in essence the same as the next, the US News provides that. The US News influence has even extended to journal publishing which is really silly.

Posted by: Michael Cicchini | Aug 8, 2013 7:55:44 AM

The top law reviews receive literally thousands of articles for consideration each year. It is impossible to give all of these articles an appropriate review. So CV bias plays a role in screening.

This does not strike me as something the students can change (if not CV bias, something would have to filter the articles) given their short tenure at the helm of the law reviews.

Posted by: Doug | Aug 8, 2013 10:20:39 AM