pageok
pageok
pageok
The Timing of the Law Review Submission Process:
Here's a question both for current law review editors and authors who sent out pieces this spring: Are you finding that law journals are generally trying to make offers more quickly, are offering tighter windows to decide on offers, and/or are prepared to do expedites in a shorter window than before? Is the submission process being compressed into a narrower window of time? I've seen some anecdotal evidence that this is true, and I wanted to find out if others were hearing and experiencing the same thing.

  Here's a little bit of background to explain the question. Unlike most academic journals, student-run law reviews generally permit authors to submit their scholarly articles to many journals at once. When a journal decides to accept a particular paper, the journal typically gives the paper's author a window of time in which to decide whether to accept the offer. It's understood that authors use this window to try to "shop up" the article, requesting an expedited review from more desirable journals (more desirable for whatever reason — higher prestige, a particular school, etc.). Those more desirable journals then give the article a quick read and decide if they want to move quickly and give an offer before the expedite window at the other journal closes.

  This system may sound really odd at first, but it's not a terrible way of dealing with a world in which there are hundreds of journals looking to publish the most desirable articles possible and thousands of authors hoping to be published in the most desirable journal. Requiring exclusive submissions works well in fields with a handful of journals, but it's a lot harder in a field with hundreds of journals. (Can you imagine how many years it might take to run through journals until you finally get your offer from the Delaware State Journal of Labor & Employment Law?) Also, a grand "matching" system would take too much time: It may or may not be easy for authors to rank their preferences of journals, but clearly it would take an impossible amount of time for every journal to rank every submission.

  In contrast, the traditional way law reviews work creates some sort of a market in scholarly works and yet is still relatively manageable. Journals that are the first to make an offer for a piece generally have an advantage in getting it (for a bunch of complicated reasons). On the other hand, authors have some limited assurance that their articles will have a chance to be considered at journals "up the food chain" during the expedite window.

  The change I am sensing over the last few years is that journals seem to be more likely to try to make quick offers, they are giving authors shorter and shorter windows to make their decisions, and at the same time they are developing the capacity to make offers on expedited reviews in a shorter window than before. The result seems to be a compression of the submission process. I wonder, are others hearing of or experiencing the same thing?

  If this is in fact happening, I worry that it is on balance a bad thing for journals. First, I suspect that the perceived advantage to individual journals is mostly illusory: Journals might want to make fast offers and give a very short window to try to limit expedites, but my guess is that other journals are likely to respond by speeding up their expedite processes accordingly. And on a broader level, I'm concerned that journals that decide extremely quickly are likely to focus even more on the proxy of author/school prestige and less on the quality of the article. It's easy to see that an article was by famous Professor X from top School Y; it generally takes a lot more time to get editors to read an article (and perhaps seek opinions from the faculty) in order to consider the article's merits in more depth. On balance, then, tighter windows would seem to make the rich richer; it may be harder for excellent articles by lesser-known authors to break in to top journals. At least that's my concern.

  In any event, I'm curious as to whether authors and editors are experiencing this. (Incidentally, one helpful point of comparison is this chart of expedite window data from 2005 via Kaimi Wenger.)

  UPDATE: To give an idea of the kind of shift I have in mind, let me offer my sense of what kinds of typical experience I think authors had five years ago. Comapring notes with friends and colleagues suggested that it was typical for authors to wait at least 2 weeks before receiving an initial offer; authors were typically given five days or a week to decide; and most journals needed five days or so to do an expedite. My sense is that these periods have shorted considerably at many journals.

  A few discussions offline have suggested a very plausible source of the shift: Electronic submissions. In the old days, it took 2 or 3 days for a submission to arrive by mail, 2 or 3 days to be opened and filed, and then editors needed copies made and distributed for an article to even be considered. To receive expedited review, an article had to have one editors give a pass, and then if she liked the article copies needed to be made and physically distributed. Electronic distribution speeds up the process dramatically; editors can get the article and distribute it instantaneously. That may be the key reason for the shift, which (if I'm right) has happened at the same time as the shift to electronic submissions.
frankcross (mail):
Didn't you just take advantage of this process and hit Stanford? Congratulations.

I think the short time frame benefits at least top 20 type journals, because the 24 hours just doesn't allow much time for consideration by top 5 journals, and there are very few authors they'll take based on author name. I've been told, for example, that they can't take an empirical article without faculty review and that wasn't impossible in the 24 hours.

But I think it's time for some of those journals to cowboy up and say "no ratcheting." Take it or leave it. Right now.
3.20.2007 7:27pm
T10 L. Rev. Editor:
Orin, I agree with your comment that the current article submission process is, on the whole, a good one. But I disagree that speeding up the expedite process changes the balance at all. On my journal, at least, the ten-member editorial board reads and discusses every article, expedited or not, in full before making an offer. We very, very rarely pass articles on to a professor for additional comments, so there is little benefit to a longer time window. Moreover, expedited articles bypass the 2L first-read process, which if anything reduces the likelihood that the relative strength or weakness of an author's name or resume will affect selection.
3.20.2007 8:09pm
joe:
I agree with frank cross, offers should require immediate acceptance or reject.
3.20.2007 9:26pm
T10 L. Rev. Editor:
I think "immediate acceptance or reject" would create substantial problems and change the current system in harmful ways.

Right now, an author may apply to a hundred journals. He hopes to get published in as high a journal as possible, and if he is not accepted to a top journal, he is willing to be published in a lower journal. Getting published anywhere is a gamble, but the risks of applying across the baord are mitigated by the ability to move up the food chain with expedite requests.

Suppose an offer required immediate acceptance or rejection. There would be a strong disincentive to submit to lower-ranked journals: the author isn't that excited about accepting an offer at a lower journal, and if he knows already that he would reject an offer then he would not have submitted in the first place. Instead, he would break up his sumbission into several tiers -- maybe to the top 5 journals first, and if rejected to the rest of the top 20, and if rejected to the rest of the top 50, and so on. Since publication has a strong effect both on a professor's prestige and on the likelihood of tenure, there is a very strong incentive to see to it that he is not published in a journal far below his article's potential.

But this would be an inconvenient system, both for the professors who had to stagger their submissions, and for the lower-ranked journals. Right now a lower-ranked journal has a chance of getting a very good article if they snap it up early and no better journal is willing to bite during the brief expedite window. But with no expedite window at all, under a staggered or tiered submission system, they would not even see the article unless all higher-ranked journals had passed on it.

May some of the professors here can tell us if, and how, their submission behavior would change if they had to accept or reject an offer, from any journal no matter how high or low, immediately, with no opportunity to see if they could get their article into a better journal. I'm speculating that it would change, and to the detriment of all.
3.20.2007 9:43pm
another t10 l revver:
"I'm concerned that journals that decide extremely quickly are likely to focus even more on the proxy of author/school prestige and less on the quality of the article."

I think the actual effect is that we use the quality of the expediting journal(s) as a proxy. i.e., if we get something expedited from the Denver Water Law Review we're probably going to ignore it (no matter whose name is on it). If it's expedited from the l revs at Penn, Cornell and Duke we'll assume--rightly or not--that it's pretty good. Of course nothing is accepted without a pretty big committee deciding they like it.

AFAIK HLR (maybe YLJ?) is the only journal with a strict take-it-or-leave-it policy. The length of the fuse on the exploding offer gets longer as the (US News) rank of the school falls.
3.20.2007 9:44pm
R Tushnet:
I think exploding offers are a terrible idea (though Columbia's policy -- if we give an offer as a result of an expedite request, you only have a short time to accept that offer -- makes much more sense). They're ugly from federal judges, they're ugly from law reviews.

But regardless of what the journals decide about that, here's a modest proposal: Every journal that gives exploding offers should disclose its offer policy as part of its submission guidelines, as Columbia does with respect to expedite requests. At least then authors would be able to make informed decisions. Other than Columbia's expedite policy, I have yet to find a journal that includes information about timed offers in its submission guidelines.

I've had colleagues suggest that some journals want flexibility to change the acceptance deadline based on their perception of the prestige of the author. That doesn't seem like a legitimate reason to keep all authors in the dark, though; at the very least, the information that a journal might (or might not, at its discretion) make an exploding offer would be useful information for authors to know.

Authors and publishers have competing interests. But a publishing relationship shouldn't start out as a war of all against all.
3.20.2007 9:51pm
Anonymous former editor:
The previous comment is incorrect: it's true that the YLJ generally gives take-it-or-leave-it offers, but the HLR (like Chicago) does not give any deadlines at all.
3.20.2007 9:52pm
another t10 l revver:
Professor Tushnet: why do you think exploding offers from expedite requests make more sense?
3.20.2007 10:33pm
Former Associate Editor (mail):
Orin, and anyone else,
Don't you think the day is fast approaching when law professors, attorneys, etc. who want to publish in a law review, will write their article and post it on their personal blog, and say, "First come, first served"? It's likely that in a few years from now, the current submission process will seem antiquated in an online world. Orin, don't you think that if you were to write something worthwhile and substantial, and post it here at Volokh (or on your own blog) with an invitation, some law review editor would accept it for publication?
Maybe I'm unrealistic, but this just looks like a better way to go. Why submit to 100's of law reviews, when you can post your article online and let the editors find it themselves, and publish it if they are interested?
I'm curious if anyone here agrees, or if there are flaws in this proposal that I don't see.
3.20.2007 10:34pm
another t10 l revver:
Former Associate Editor:

With Expresso and other online submission methods that's not dissimilar to what happens now. It's not like authors have to hand-deliver copies to every journal in the world. Professors would rather alert l revs to their articles' existence because articles editors are busy enough trying to do a good job when they don't have to scour the internet (or, more likely, just ssrn) for not-yet-published articles.
3.20.2007 10:58pm
T50 L. Rev. Editor:
The main pattern I've seen this spring is that, as compared to previous submissions seasons, law reviews seem to be "clustering" their offers to match the existing offers. So, for instance, if the Delaware State Journal of Labor &Employment Law offers with deadline of March 19, then another journal will offer with the same March 19 deadline a few days later, another a few days after that with the same March 19 deadline, and so on until the last one is practically an exploding offer. So, the deadlines end up being shorter than they would be absent such clustering, but not arbitrarily shorter.

BTW, as to Former Associate Editor's suggestion: There are enough law profs and others seeking to publish articles in law reviews that, even if there was a professional norm for not submitting articles, all but a few authors would need to find some way to actively shove their articles into the hands of reviewing editors rather than sit back and wait for the editors to find them. Unless you're already a big name or unless VC or another heavily-trafficked blog linked to your article, posting your article on SSRN without alerting editors to its existence would virtually ensure that it went unpublished.
3.20.2007 11:28pm
frankcross (mail):
T10, your reasoning is why I think the proposal makes sense. Basically, the system allows the higher journals to take advantage of the lower journals as screening devices. That has changed with relatively exploding offers -- the higher journals have to at least be in a position to make a quick decision. While that's a plus, they still are taking advantage of the lower journals' work. Although, as you noted, there's not a huge difference between a 24 hour window and an immediate acceptance rule. In retrospect, 24 hours is probably better, because it allows for the circumstance that two journals imminently want an article, it's silly to have that decided by "race to the author." So I think I like a 12-24 hour rule.

Although I'm still a little tempted by a single submission rule, like with peer reviewed journals. One journal at a time. This takes advantage of the fact that the author is probably the best judge of his or her work (albeit with some upward bias). They would submit to the best journal that they thought had a reasonably high probability of accepting. But it would considerably reduce the workload of law review editors, allowing them much more time for close scrutiny of articles and wiser decisions. And it therefore might actually help "unknowns" break into the top tier, at least the risk-taking ones.
3.20.2007 11:43pm
Legal Duckling:
Former Associate Editor,

What would be the point of publishing at all in your scenario? If it is possible to drive enough readers to a particular article to elicit a journal offer then hasn't a paper journal become obsolete?
3.20.2007 11:50pm
billb:
I think that all this article shopping is a huge problem for legal scholars. Do some authors really send their articles to 100 different journals? Seriously?

In the engineering (and math, and physics, and, well, everywhere else) academy, one must sign a statement that goes along with your article submission saying that one hasn't submitted it _anywhere_ else. If you want you're article published in a top journal, you make it the best possible article it can be, submit it to the highest rank journal you think will publish it, and cross your fingers. If it isn't accepted, you find a more appropriate place to publish it.

I'm with frankcross on this one. One at a time, baby.
3.21.2007 12:25am
T.20 Articles Editor:
Our committee initially adopted the same rule as last year's: 48 hours to decide on an offer with no extensions given ever. I think of that as short but not actually "exploding." Most of the authors who have received this offer have been fine with it, but we've heard a few complaints. Interestingly, the acceptance rate of this offer has so far been 100%.

We're now thinking about starting to be a little more flexible. There's not any "buyer's remorse" - we're quite happy with all the articles we have - but I at least feel bad that we have so few spots left and so many articles in the queue.

That said, the law review submissions process is pretty crazy. It encourages oversubmission to way too many journals. At the law review's end of things, the articles committee has a nearly impossible workload. Trying to read everything that comes in, our grades and personal lives start to suffer. With so little time to read so many articles, we're probably overlooking a lot of good stuff. With so much not-good stuff coming in the door, our time is being wasted on articles we would never publish.

I wonder if a solution to this might be a limit on the number of simultaneous submissions. I think exclusive submissions is too restrictive. But what about a system where you could submit to 25 or 30 journals at a time?
3.21.2007 6:45am
Former Associate Editor (mail):
Thanks to those who responded to my query (and this thread of comments is fascinating).
To answer Legal Duckling: Yes, to a degree, it would make paper publishing obsolete, but that's already the direction things are headed. At the same time, there will always be a place for paper journals as more permanent repositories of (hopefully) the best articles.
In response to another t10 l revver and T50 L. Rev. Editor: Your points are well-taken in regard to the current system. That is, law review editors are too busy scouring articles that are sent their way to spend time on the Internet searching for ones that are posted on innumerable blogs.
But notice the posts here at Volokh (and elsewhere) about judicial citations to law review articles. There are many ways of looking at that, but the fact is, law review articles are considered by many in the profession to be detached from the "real world" of lawyering. Even theoretical and arcane articles have their place, but attorneys and judges don't rely on law review articles that much, and don't even habitually read them. I remember one of my law school professors telling me bluntly, "No one reads these things. They don't matter. They're just for law professors to be published."
When I was on law review, I actually did read a few articles, published in our journal, that had relevance and significance. The best one I remember (and helped edit) was written by a judge, and was a very practical analysis about the impact of a statute on a certain specialty of law. So not all law review articles are divorced from the profession, and even those that are may have their value.
My point is simply this: There are many lawyers and judges reading blogs. Online resources are becoming more authoritative. Suppose a lawyer in a particular specialty (let's say Worker's Comp.) has a blog. He comes up with a novel idea, or a penetrating observation, and decides to write an article about it. It's too long to be a blog post, but he can turn it into a Pdf file and upload it onto his blog for anyone to read. If his blog has a good reputation, and his article has intrinsic value, people will read it. He doesn't have to publish it anywhere else, because it's already published. People across the world can read it without subscribing to a journal or going to a library.
(As an aside, his readers can comment on the article, point out strengths and weaknesses, make corrections, etc. Then the lawyer can publish a revised version on his blog. This seems to be an effective form of "peer review," if enough people participate in the comments or by email.)
But the lawyer-blogger can still decide that it would be beneficial to publish his article in a traditional law review. All he has to do is say, "Any law review editor who wants to publish this is welcome to it. I will publish it in the first law review which responds." It no longer matters what the submission schedule is for journals. The article can stay on the lawyer's blog indefinitely, and he can make it easily accessible by a link in the margin. Months or years later, people will still find it by Google searching. And if the article is significant enough, then lawyers, judges, and law professors will eventually learn about it. Meanwhile the invitation still stands: "I will publish it in any law review that is interested." I predict that in this situation, if the article is good enough, some editor will eventually respond.
I honestly think that this paradigm is superior to the current form of submission and publication. It also is a way to get more "practical" articles into circulation, whether online or in traditional journals.
Eventually law reviews (and law schools in general) will have to adjust to the new online forms of publishing. Perhaps the Internet, and legal blogs, will thus become a viable source of short, succinct, practical articles, footnoted only where necessary, read by judges and attorneys alike. Then law review editors will learn of them, and request permission to publish such articles in their journals.
3.21.2007 10:03am