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Wednesday, April 25, 2012

Underneath the Law Review Submission Process: Part VIII Memes

A little light hearted humor for you folks in my next post on the law review submission process (more serious ones coming in the future).  For those of you who haven't heard of this, a meme is a popular video/picture or character that is passed on over the internet. These can become viral.  A great website helps you to generate your own.  My students came up with some hilarious criminal procedure ones studying for finals this year.

Anyway, here are my own on the submission process:

Yunotakemyarticle

And one based on the comments on my last post about being honest in your expedited reviews:

Lawreviewmeme

For those of you who didn't read my last post or the comments, TJ (in a comment) pointed out that the chances of being caught for faking expedites is so low that people--particularly those without letterhead or at lower ranked schools may have the incentive to fake an expedite.  And he calculates, if they do, they may actually be 10 times better off.  Very interesting (and disconcerting). 

In my last post I talked about honesty in expedites as one of a few tips for good expedites.  From the comments though, it seems that some people think this could be more of a problem that needs to be addressed broadly.  Unlike several of the other problems identified about the law review process (potentially inexperienced editors, rush of submission timing, use of proxies rather than blind review to evaluate good scholarship), the solution to fake expedites is a relatively easy fix. 

Several of the solutions articulated in comments on my last post could work.  One approach would be to have all journals require a forwarded offer email as proof for an expedite.  Alternatively, if the offer was received through a call (not an email), the author could write an email message with the name, time of call and the name of the articles editor, contact info, and journal who gave the offer.   Another option that would be much easier would be to require articles editor name and phone number or email in an expedite done through Expresso (similarly to how it now requires the name of the journal you received an offer from). 

I'm not sure any of this is necessary, because I'm not sure how rampant this kind of behavior is among authors (I'm with Brian Galle on thinking that if you are a lawyer or law professor you signed a few really important oaths that should be a deterrent enough to you to not lie/cheat) but if you all think it is a big enough worry, it may be worth writing Expresso about or for us to encourage our law journals to adopt such a process.

Posted by Shima Baradaran on April 25, 2012 at 11:28 AM | Permalink

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I don't know if this isa real problem, but in a world of ExpressO we could solve any such problem by having the offering journals themselves indicate the offer on ExpressO rather than relying on the authors to report it. Say a journal gives an author three days to consider an offer. The three days could start when the journal indicates on ExpressO that it has given the article an offer with a particular deadline. Other journals could then know that they have three days to make a competing offer. Circumventing the author's involvement would eliminate the concern of authors misrepresenting expedites or windows.

Posted by: Orin Kerr | Apr 25, 2012 12:01:55 PM

There are so many thing Expresso should do if they want to stay the only game in town. Expresso-submitted offers (and rejections!) are so obvious it's maddening.

Posted by: Junior | Apr 25, 2012 3:23:01 PM

@ Orin: I wonder how well it would work for ExpressO to require journals to indicate when they made an offer. The incentive would clearly be for journals not to inform other (particularly higher ranked journals) that they made an offer as they would prefer that authors immediately accept their offer and not expedite it to other journals. Thus, even if ExpressO preferred to have journals indicate when they made an offer, editors could easily circumvent it by reaching out to the professor/lawyer author directly (as most of us are easily found on Google) and thus prevent authors from being able to expedite.

Posted by: Shima Baradaran | Apr 25, 2012 5:48:39 PM

Shima, maybe my experience is quirky, but my sense is that editors not only know that you're going to expedite, but think it's a little weird if you don't try to expedite (the exception is the Harvard Law Review, where acceptance is presumed). So I'm not too worried about the dynamic you suggest. Of course, journals can always reduce their offer windows to try to make it impossible for other journals to make offers in such a short window, but that dynamic exists more or less independently of whether ExpressO or authors are responsible for reporting the expedites. In any event, one answer would be for ExpressO to require journals to agree to indicate their offers on ExpressO for any articles submitted via ExpressO so journals that use ExpressO (most of them) can't circumvent that rule.

Posted by: Orin Kerr | Apr 25, 2012 7:00:13 PM

Orin, you may be right. But I wouldn't be surprised if you experience "quirkiness" with the law review process that some of the rest of us don't experience. You may experience a sort of "law review bubble" (think 30 Rock) where the editors bend over backwards to give you extensions or even small gifts (no, the rest of us don't get a courtesy fruit basket with every offer) ;)

Posted by: Shima Baradaran | Apr 25, 2012 9:31:19 PM

I have to confess that my first inclination was Shima's -- that (generally) worse-ranked journals have a definite incentive not to publicize that you have an outstanding offer from them. But on further reflection, I think I agree with Orin. Setting aside his exceptionalism, the fact is that the (again, generally worse-ranked) offering journals also have an incentive not to provoke the authors to whom they've made an offer. This is for two distinct reasons. The first is that they don't want to get a reputation for dicking around the authors that they accept. If a (hypothetical) 50ish law review had a reputation for being jerks about articles they accept (i.e., refusing to acknowledge outstanding offers), I'd think twice about submitting -- and if anyone is the embodiment of "beggars can't be choosers," it's me. Second, there is a distinct possibility that they are going to have to work with the author that they just threw under the bus. And word easily could get back to him or her, making for an unpleasant several months. And this is setting aside the fact that I'm not sure that the typical collective action impediments apply, at least for the top 100 or so law reviews.

Posted by: Joe (not that one) | Apr 25, 2012 10:35:32 PM

Thanks for the shout out, but I should note that the main driver of the result is not the small chance of being caught (though that too is a factor) but the tiny chance of legitimately placing in the law review in the future without a fake expedite. This reduces the deterrent effect of the private blacklist remedy that your last post listed as the main deterrent, because a private blacklist has bite only to the extent that an author can expect to legitimately place in the same law review in the future. For lower ranked authors and highly ranked law reviews, that expectation is pretty low. That is why I pointed out that the problem is particularly acute for authors in lower ranked schools and those without letterhead.

The deterrent mechanisms you list in this post (e.g. disbarment) are not subject to this intrinsic discounting mechanism, and so they are accordingly less prone to the problem.

Posted by: TJ | Apr 25, 2012 11:19:59 PM

"This reduces the deterrent effect of the private blacklist remedy that your last post listed as the main deterrent, because a private blacklist has bite only to the extent that an author can expect to legitimately place in the same law review in the future."

This actually brings up a good point. Why does any blacklist need to be private? For that matter, why do the good experiences with authors need to be private as well? "Rate my professors" encompasses law school faculty. Why not have a "Rate the authors" site? Law reviews could post reviews of their experiences wth authors -- from "the a-hole faked an expedite" to "best. author. ever." Yes, yes, defamation, etc. Has that been an issue with RMP? (Not a rhetorical question.)

Posted by: Joe (not that one) | Apr 25, 2012 11:45:57 PM

Perhaps fake expedites should be welcomed, to the extent they contribute to destructive perceptions of article quality.

I don't fault law review editors for relying primarily on factors other than article quality -- they have lots of articles to review and must use some shortcuts. However, as James Grimmelman noted in a comment to an earlier post, there is no reason to get outraged over law review practices, unless one accepts that law review placement must control tenure, lateral, and speakership positions.

Perhaps if people further game the system, we in the academy will finally be forced to evaluate our peers through measures other than law review placement. (Admittedly, we already take other measures into account, but those pale in comparison to how a given 2L judges a particular person's work.)

With this in mind, it's perhaps best to fake an expedite from Wake Forest to get a close look at GWU, and to fake an expedite at GWU to get a close look at Cornell, and so on. Let's contribute to the destruction of this enterprise and collectively lie about expedites, such that any signal obtained through acceptance by 2Ls at a T10 school comes to mean little.

(I'll admit, although it's already obvious, that I'm a professor from a lower tier school with a rather dismal placement record, whose sour grapes and jealous undoubtedly contributed to this proposal. But let's see how T10 reviews consider my next piece, after my "expedite" from Georgetown! Can't wait to try out this strategy.)

Posted by: ThirdTierProf | Apr 26, 2012 3:10:12 AM

I tried once to run the reverse of Joe's suggestion - to rate law reviews by their "customer service". But I ended up thinking that prestige swamped information. If you are curious, http://www.concurringopinions.com/archives/2009/03/the_best_and_wo.html

On faking expedites, no deterrent system will work if authors don't believe in the legitimacy of the enterprise. That's why "thirdtierprof"'s message is so sad (and not just for his or her acceptance of USNews "tiers" as determinative!)

FWIW, I agree with Orin: journals in my experience believe it to be weird if you do not expedite. I should especially call out signers of the "long window" declaration (http://harvardlawreview.org/Joint-Letter.pdf) for pushing back on an increasingly stressful process.

Posted by: dave hoffman | Apr 26, 2012 9:19:16 AM

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