I get knocked down: Women publishing law review notes

I read an interesting article in the Journal of Legal Education (unfortunately not online) about the underrepresentation, relative to law school enrollment and law review participation, of women publishing notes on the main journals of the top law schools. The author theorizes that women are more alienated from law school than men. Writing a note may seem like one more awful hurdle in a system that has proved less meaningful than they hoped. I was particularly interested in statistics from a study of the Yale Law Journal revealing that one source of the disparity was that women were only one-third as likely as men to resubmit their proposed notes after an initial rejection; given that most notes are only published after resubmission, this was a big deal. That brought back some powerful memories of my experience, which I share in the hope of encouraging more students—especially women—to try the publication process.

True confession time: I submitted a proposed note every time I was eligible to do so. Eight times. Alert readers will infer, correctly, that I was rejected seven times. This was, to put it mildly, a bit painful, especially as at least one of my classmates did better each time. I tried three different pieces, the first of which was deeply flawed and will, fortunately for me, never see the light of day. The second was Legal Fictions, ultimately published elsewhere after several failures. The third was Rules of Engagement, which I submitted three times—meaning two resubmissions.

Why did I keep trying? Well, basically I was too stubborn to quit, especially the last time, when I was pretty convinced I’d just be rejected again, but couldn’t stomach the thought of letting that last opportunity pass without even trying. (On the way to the all-night copy shop to print out that last submission, I heard Chumbawamba’s Tubthumping for the first time; make of that what you will.) And also I was ambitious: a note has multiple benefits for things like clerkships and jobs both academic and non-, and even once I had a publication forthcoming in another journal, I knew publication in my home journal was optimal.

As difficult as going through the submission process eight times was, I think it’s fair to say that both published pieces were successful, and I’m glad I wrote them and revised them and revised them again. Legal Fictions became the starting point for my scholarship on fanworks and copyright, and Rules of Engagement won the faculty prize for best student note and convinced a state supreme court to reject the modern rule governing ownership of engagement rings after a broken engagement, both matters of great satisfaction to me. And I really did learn a lot about how to write in the process.

Publication isn’t for everyone, but at the same time it’s distressing to see women’s participation drop off so sharply, even women at top law schools who are already on law review. Given the internal and external benefits of writing a note, I’d like to see a more representative set of writers. I’m not sure about solutions, though—Notes Development editors might help encourage more people to submit; so could greater transparency about the benefits of writing a note. But I keep coming back to that three-times disparity in resubmission rates. How can we convince students, particularly women, that revision and resubmission is likely to be part of the process, rather than a final referendum on merit? Rejection is awful, and yet you improve your odds by trying multiple times (and in multiple fora). Gritting your teeth and trying again is a skill worth having, especially for a lawyer. Maybe all student notes should require a first draft, and be accepted only after at least one round of revisions.