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Monday, September 25, 2017

Reputational Scores: Yet Another Idea for Reforming the Law Review Submission Process

Like a lot of others out there, I find the expedite game quite distasteful.  Also like some others, I've been tossing around some ideas for fixing it.  Some recent ideas from others include having faculty publish only in their home institution's journal, limiting the number of simultaneous submissions, or using exploding offers.    

My very tentative idea is this: the "E Score."  Suppose that Scholastica created and published a score for each author that indicated the number of expedite requests made per article.  If you submit to 50 journals and get an offer from the 50th ranked journal, and then expedite to the other 49, you’d have an E Score of 49.  If you then received an offer from the 49th ranked journal and expedited to the other 48, your E Score would jump to 97.  If you submitted two additional articles the following year and accepted offers on both without any expediting, then your E Score would drop to 32.3 (97 total expedites over 3 articles).

Other scores could be created as well.  Perhaps a “D Score”—for declinations per article. If you decline a publication offer, your D Score goes up and editors will understandably be a little less likely to invest their time reviewing your work.  There are good reasons for declinations, of course, two of the most common being copyright agreements and the time of publication.  The copyright problem could be solved if journals would state up front (and on Scholastica) what the copyright terms are.  The time of publication issue is harder to solve, but my sense is that most of us accept that our articles will show in print and online sometime within 12 to 15 months.  If the journal were to pledge up front (i.e., on Scholastica) that publication will occur within 18 months (or whatever), that would solve most of the publication problem.  For authors in the uncommon situation of wanting an article in print sooner, well, an increased D score is the cost of doing business in that way.  Of course, one must not forget that all authors would have D Scores as well.  So while an increase in your D Score is not welcome, the real question is how your score compares to the norms in the community.  If I’m wrong about timing and lots of scholars focus on it, then D scores should reflect that. 

Finally, it might also be useful to create a “W Score”—for withdrawals per article.  There’s nothing wrong about withdrawing, of course.  If you submit to 50 journals and get an offer on the first day, then you obviously will withdraw the submission from the other 49 and you’d have a W Score of 49.  What the W Score tells the world is how broadly you submit.  Is submitting to 50 journals a lot?  I don’t know, but that’s a benefit of a score. No judgment, just data.  If you are out of line with regard to the norms in the community, you are likely to be less successful in the community.

These scores would not only benefit journals.  They’d benefit authors as well.  Suppose you accept an offer from a journal ranked 100.  Not your dream placement, but it’s  perfectly decent and most of all, you just want to get the article in print and move on to your next project.  Still, you might feel a bit of silent judgment from others, particularly those who tend to publish in higher ranked journals. A low E Score is a way to push back against the judgers.  A low E Score tells the world, “I don’t expedite, so think twice before assuming that my article is not worthy of a higher ranked journal. Just read it and decide for yourself.” 

I would make all these scores public and searchable on Scholastica.  But this, of course, invites a concern: Scholastica would first have to be talked into this and it might reasonably worry that the idea might turn off authors, sending them to a new submission company (or creating cause for a new company to be created).  I think the easiest way to resolve this would be for the AALS to enter into an agreement with Scholastica—something on the order of 5 years for so.  In return for Scholastica’s creation and maintenance of scores, the AALS pledges that, during the 5 year term, professors at member schools will only submit through Scholastica and journals at member schools will only accept submissions through Scholastica.

There is one last, and crucial, question: will reputation scores matter to journal editors?  I’ve assumed thus far that journals would hesitate to read and make offers on work by serial expediters.  But is this true?  I frankly don’t know.  It is undoubtedly true for some journals and for some abusive authors (most journals have a type of internal blacklist, I suspect), but I can’t say for sure beyond that.  I’d be very eager to hear from editors on this. If an established author had an E Score of 0 (meaning that the author would very likely accept your offer), would that affect, and by how much, your review process?

Posted by Jack Preis on September 25, 2017 at 10:20 AM | Permalink

Comments

Personally, I'd like to see Scholastica promote blind submissions. Right now they do the opposite, telling authors to include a CV because that is what law review editors find most helpful in evaluating submissions.

Of course, my suggestion assumes that publication offers should be made primarily (if not exclusively) on the perceived quality of an article manuscript---an assumption that seems inconsistent with this post, which is about giving journal editors more non-quality information on which to base their decisions.

Posted by: CBHessick | Sep 25, 2017 10:50:26 AM

With regard to this: "In return for Scholastica’s creation and maintenance of scores, the AALS pledges that, during the 5 year term, professors at member schools will only submit through Scholastica and journals at member schools will only accept submissions through Scholastica."

Elsevier's antitrust lawsuit incoming in 3, 2, 1 ....

I do not see how this proposal is possibly legal and I think anyone who implements it can look forward to time in prison.

Posted by: anon | Sep 25, 2017 11:34:54 AM

Hi Carissa- I'm all for blind submissions as well (who isn't?), but a blind submission process won't solve the expedite problem. Authors that receive an officer on blind submission can still expedite--and thus all the ills of gaming would still occur. A reputation score (anonymized to keep things blind) would seem to address the expedite problem but not stand in the way of blind submissions.

Anon- could you tell me (an antitrust neophyte) a bit more about the antitrust problems here? To me, this seems to be an exclusive dealing contract, which I had thought were mostly legal. Is the problem here that AALS (and the members it represents are so dominant in the world of legal publishing (is that the relevant market?) that such a deal would quash any new entrants? If so, do you see any other lawful way to implement the proposal I'm making? Thanks in advance for you thoughts.

Posted by: Jack Preis | Sep 25, 2017 1:32:26 PM

There is a common joke circulated among university administrators. When you find yourself in a meeting with other universities where someone is stupid enough to start talking and asking about tuition, you need to loudly knock over a glass of water and make a memorable exit from that meeting. Price-fixing is bad news. And in order for the AALS to be able to cut a deal with Scholastica, member schools would need to sit down and agree on the price they will pay for submissions. Some people may be brave enough to do this, but I will stay far away from that meeting.

And yes, there may also be a exclusive dealing problem. The AALS, to the extent it can command its member schools on matters of law articles production, is the predominant producer of law articles. When it cuts a deal with Scholastica, it may freeze out alternate producers of law articles, which, incidentally, include judges. But then Scholastica is also the predominant avenue of articles submissions. When it agrees a deal with AALS, it will freeze out Expresso, now a subsidiary of Elsevier. Elsevier did not buy ExpressO to be frozen out, that's for sure, and you will have a very enthusiastic and well-heeled plaintiff against your plan even if the feds don't bring charges.

Ultimately, I have no idea how you can make a case that a deal between Scholastica and AALS is not anti-competitive.

Posted by: anon | Sep 26, 2017 1:57:30 AM

Hi Jack:

Thanks for taking the time to respond. Would you mind letting me know what the "ills of gaming" associated with expediting are? They don't seem super obvious to me--or at least, the few downsides of expedites don't seem to warrant additional non-quality information being impounded into the article selection process.

Thanks!

Posted by: CBHessick | Sep 26, 2017 9:33:21 AM

Hey Carissa- Nice to chat about this a bit. Thanks for engaging. Your comment has made me think a bit more deeply about this and I'm going to turn my would-be response into another post because I think it might be constructive.

Anon says: "Price-fixing is bad news. And in order for the AALS to be able to cut a deal with Scholastica, member schools would need to sit down and agree on the price they will pay for submissions. Some people may be brave enough to do this, but I will stay far away from that meeting."

I agree that price fixing is bad news, but when AALS and Scholastica sit down and agree to a price, how is that price fixing? Price fixing is something done among competitors and AALS and Scholastica are not competitors. To illustrate my point, suppose I'm Marriott Hotels and I project that I will need 30,000 sets of curtains a year for the next 5 years. Can't Marriott sit down with Curtain Co. and work out a five year agreement to lock in a price? One could call that "price fixing" in the sense that Marriott "fixed a price" for a 5-year term, but it's hardly anti-competitive for Marriott to purchase its supplies on a long term installment contract.

The only way, as far as I can tell, that an antitrust issue might arise would be if Marriott promised, in return for some consideration from Curtain Co., to exclusively buy curtains from Curtain Co. This is the exclusivity issue and I'd be wandering into unknown (to me, at least) territory by commenting further. If you have further insights on this issue, however, please share!

Posted by: Jack Preis | Sep 26, 2017 9:19:42 PM

I encourage you to think about how your E and D and W scores might differentially affect folks who submit from higher-ranked vs. lower-ranked schools, and those who right in less "sexy" areas. As someone who teaches at Howard and writes primarily about bankruptcy law issues, I've come to believe that it behooves me to submit more widely than I might prefer. And more widely than a Georgetown prof who writes about constitutional law or criminal law might think necessary.

Maybe I'm wrong and I should be more targeted about my submissions, but I believe your scores would harm me more than others.

Posted by: Matthew Bruckner | Sep 26, 2017 10:32:21 PM

Sorry for the typo. I'm tired. I meant "write."

... Maybe this explains why I need to submit more widely than some others!

Posted by: Matthew Bruckner | Sep 26, 2017 10:35:36 PM

Jack, you need to consider the nature of AALS. The AALS is not a unitary corporation like Marriott. The AALS is, as its name says, an "Association of . . . Law Schools." The law schools within the AALS are the competing buyers of law journal submissions. They also compete against non-profs like judges, practitioners, and prof hopefuls. When the law schools band together under the AALS banner to set prices of submissions, then the AALS is in strong danger of acting like a buyer cartel. Associations like the AALS must always be careful when they take collective action like this.

To make your hypothetical more like the situation we are discussing, we need to replace Marriott with a hotel association that includes Marriott, Hilton, Hyatt, and all the other hotels. Even then, the hotels are not the only buyers of curtains and I doubt they dominate the buyer side of the equation. In contrast, the schools of the AALS are no doubt the biggest buyers of law journal submissions. So we need to switch the item in your hypothetical from curtains to, say, online hotel booking. Let's say all the hotels band together to work with Expedia, setting requirements on Expedia about the fees it may charge and the services it may provide. In the process, they freeze out Oribtz and Priceline. That would be more like the AALS and Scholastica deal you are proposing.

Posted by: anon | Sep 27, 2017 11:45:05 AM

Matthew- that is an excellent point. I hadn't thought about that aspect of expediting and appreciate you raising it. I'm not sure how to deal with it at the moment, but wanted to let you know that your point is a good one.

Posted by: Jack Preis | Sep 28, 2017 11:35:27 AM

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