Mark Tushnet comments on an interesting article from Brannon Denning and Michael Kent, though questions why it placed in the Utah Law Review.
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?
After commenting on the merits of the article, and whether it warranted on higher placement, Tushnet turns to the fact that the authors teach at low-ranked law schools.
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.” (I know that some reviews do blind evaluations, but I have a strong sense that most top N reviews don’t — and doing a blind review at the first, intake stage is exceptionally difficult for overworked law review editors with little professional support staff.)
This is probably, and unfortunately, right. Letter-head bias is a long-standing issue in law review submission for professors from lower-ranked schools (myself included). The top-ranked journals offer blind review, and even ask for submissions where all identifying information is stripped. But below the top-ranked journals, say (15 onward), this information is expected. Always, the C.V. is requested. It’s unclear how much this weighs on journals, but it can be an easy screening mechanism, as Tushnet notes.
Invariably, those with the least publications have the hardest time placing. It’s the academic Catch 22. To publish you need publications, but to have publications you need to publish. Breaking through this early cycle, especially as a junior scholar, is a significant hurdle.
Tushnet also alludes to another indicator of credentials–the star note. The bigger names here, the more attention you get:
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. (And, if you follow this advice, you’ll probably want to push your submission to law reviews back one cycle — you shouldn’t send something really incomplete out for comments — if you can.)
One way to bloat the note (it rhymes!) is to attend a workshop, and thank people who you talked to about the paper. This can border on disingenuous, if the person you spoke to barely gave any advice, let alone read the manuscript. It is perhaps more accurate to separate those you thank–those who gave advice or comments, and those who read the manuscript.
And again, obtaining invitations to workshop can often be a factor of your credentials. Though, this may be more fruitful than the Nigerian scam email. I don’t like to spam inboxes of people I don’t know. Sometimes its fruitful, but most of the time the emails are ignored. I’d rather save pestering a big mucketymuck for a smaller, more manageable favor, such as asking a specific question based on their scholarship that affects my article. This is a lot better than saying, hey, read my paper. Offering comments on a 50+ page paper takes a lot of time, and investment.
Relatedly, I haven’t found a single good source of calls for papers for symposia (if such a call is even issued). I like the Legal Scholarship Blog, but frequently, notices are posted either right before, or even after a due date for a submission. I tend to find them scattered on lots of prawf blogs and list-serves, but invariably, conferences that would interest me, that should’ve crossed my radar on one of the blogs, aren’t mentioned until right before they happen.
Update: Eugene Volokh takes a different position:
A thank-you note doesn’t show that the thanked people read the article, or even that they know the author well. If you go up to Amar or Fried or nearly any other scholar at a conference and ask them a brief question related to your research interests, they’re likely to answer it: It’s the polite thing to do, plus most scholars are genuinely interested in answering listeners’ questions, and flattered to be asked for advice. And if the answer is helpful, then the author could (and even should) thank the answerer for the help.
So I suspect that the thank-you note generally reflects nothing other than that the author has gotten some small help from the person being thanked. Readers — including law review articles editors who are selecting articles — know that, and authors know that readers know that, so there is little reason to think that authors are including the thank-you’s to impress readers. Instead, the main reasons for the long thank-you’s are (1) it’s the right thing to do, (2) if you don’t thank someone, you risk their being annoyed by the absence of thanks (and even if you think they didn’t help you much, they may well remember the matter differently), and (3) even if the help was minor, it’s best to err on the side of caution.