In disciplines outside law, faculty appointments and promotions (including tenure) are not in the hands of student journal editors. Of course, they do not depend entirely on student-editors in law either – but they do in part. Coming from Canada (where peer-reviewed journals are preferred), and with a partner in sociology (where peer-reviewed journals are the norm), I am surprised by this practice. While there are lots of reasons to wonder why student-run journals are privileged in US law schools, primary among them (to my mind) is the fact that students are not especially well trained or positioned to meet and address the systemic discrimination felt by women and minorities in trying to get their work published and ‘valued’.
This is not an especially intuitive observation, and it has been made by lots of others before me. And this discrimination cannot be visited solely on law students (who often make great choices and invariably work very hard). Rather, I think it has more to do with the fact that they are the wrong people to be making these publishing decisions. Not because they are ‘bad’ people (some of my best friends were students), but because their experience and training makes them ill-suited for the task.
When I first started teaching, I was sufficiently perplexed (and not a little outraged) by these issues that I asked my research assistant to gather some statistics about the number of articles published by men and women in some of the top journals. These numbers would be even more revealing if we could create formulas that accounted for race, sexuality and disability (or the appearance of race or sexual preference or disability), or if we had the numbers on ‘topics’ (because, of course, topics are gendered as well). But in any case, for what they are worth here are the numbers we found for 2001-2006.
Michigan:

articles: 17 female; 70 male

essays: 5 female; 14 male

comments/notes: 17 female; 23 male
Columbia:

articles: 19 female, 50 male

essays: 11 female. 37 male

comments/notes: 38 female, 45 male
Stanford (who had no female editor-in-chief any of these years):

articles: 32 female; 104 male

essays: 0 female; 1 male

comments/notes: 20 female; 42 male
NYU:

articles: 25 female; 45 male

essays: 0 female; 4 male

comments/notes: 45 female; 61 male
Pennsylvania:

articles: 16 female; 38 male

essays: 1 female; 6 male

comments/notes: 21 female; 38 male
–Laura Spitz
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These numbers are very interesting, but I would like to suggest an alternative explanation for the gender disparity in the articles category. I know that nearly all articles published in the journal I work on are written by law professors (I am not sure that this is the case for all journals, but I am fairly certain that this is common practice). While I am not immediately familiar with the ratio of men to women on all law faculties, I can look to my own law faculty–where women are noticeably underrepresented–as an example. In reliance on this example, I would say that the proportion of articles you found to be written by women is comparable to the percentage of women on faculty. What are your thoughts about the possibility that the articles discrepancy is caused by a lack of gender balance on law faculties?
I would explain the discrepancy in the note category using a similar obervation. Since roughly half of law students are women, I would expect the gender identity of authors of notes to be similarly balanced (in a perfect world). But let’s remember that the pool for note publication is not the general law student publication, but typically the membership of law journals. So, we should expect the female to male ratio of authors of published notes to reflect the male to female ratio of law journal membership. To take a look at the gender-make up of the membership of these elite law journals might be revealing. Indeed, your note of the absence of a female EIC at Stanford points in that direction.
So while I agree with your observation that students are not in the best position to be selecting articles for publication (and I say this as a former Submissions Director and Editor in Chief), I do not agree that the students are likely to be so responsible for the gender-bias in material that is published as you suggest. I suspect it is much more likely to be a pipeline problem, meaning that the gender disparity is probably present in the submissions pool.
While I am not immediately familiar with the ratio of men to women on all law faculties, I can look to my own law faculty–where women are noticeably underrepresented–as an example.
As it happens, jlynn80, there is actual data that suggests a very different story. While it is true that women are underrepresented on many law school faculties, and that this under-representation is most extreme among the elite law schools, women still represent over one third of the law professor ranks. Among law profs who have the most pressure to write – untenured lawprofs on the tenure track, the percentage is even higher. The AALS data suggests 29% of profs, 47% of associate profs and 54% of assistant profs are women, see: http://www.aals.org/statistics/2008dlt/gender.html
You should also have able to find published scholarly work on this very topic, for example this article:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1140644
To take a look at the gender-make up of the membership of these elite law journals might be revealing.
So why not do it? I imagine it would be very easy for you to figure out what the gender composition of the Stanford Law Review has been over the past 15 or 20 years and compare the percentage of women on the law review with the percentage of women students who had notes or comments published by your law review.
If you want to weigh in on this issue with any credibility, at least be willing to do some basic research first.