PrawfsBlawg

Law Review Submission Angsting Thread: Fall 2017

It looks to be about that time of year again.  Post here for comments about your law review submission experiences.  I'm wondering if the Northwestern exclusive review, with its decisions made by July 28, has moved up the process a bit.

Submission Angsting Spring 2017

We are going old school with the angsting thread -- back to its beginnings, when Redyip, the great bird of the gods of Zarcon, first alighted into the sky to signal the beginning of the law review submission season.  I'm not sure if Redyip has provided the signal to Orin yet; we await further enlightenment. But ye may gather here, on this angsting thread, to provide such news: have journals awakened from their winter slumber to renew their manifold judgments?  Hark, traveler! -- do I see the winged colossus?  

Click here to go to the most recent comments.

Northwestern Law Review exclusive submissions

Northwestern University Law Review has instituted a system of exclusive submissions for the upcoming cycle. Authors can submit exclusively until January 28 and will receive a response by February 17. It is a good way to get a jump on the submissions cycle. Full details on submissions here.

Submitting to online journals

Courtesy of University of Illinois Law Review, her is a new ranking of online journals, along with links to the submission pages for each. Here is the list, including hyperlinks, from SSRN.

Commitment to furthering social change

A friend at another law school shared the following (the story is made anonymous, and non-gender-specific, for the benefit of all parties):

My friend wrote an empirical article, concluding that the data did not support removing military commanders from the courts-martial system in sexual assault cases. She/he submitted it to a law-and-social-policy/social-change journal at a t20 school. The journal rejected it, writing the following: "Our editors felt that your piece provided interesting data analysis; however, we do not feel that your framing of the issue and your ultimate conclusion align with our journal's commitment to furthering social change."

This is a staggering thing for an academic journal to say out loud, even if many people believe such biases exist in publication decisions, in law and other disciplines. It is more staggering for an empirical article. If editors disagree with an author's conclusions in a normative or theoretical piece and reject it on that basis, that is troubling, although separating evaluations of quality from agreement with the conclusion is a difficult intellectual exercise. To reject an article because the conclusions from the empirical data do not "align" with a commitment to "furthering social change"--while not questioning or challenging either the data or the data analysis--is nakedly anti-intellectual. Not to mention counter-productive: If you are committed to furthering social change in the area of military sexual assault, wouldn't you want to rely on data that helps identify the best solution to the problem and directs you away from solutions (pulling commanders from the process) that will not resolve the problem? (This problem is not limited to law, but extends to the hard sciences).

Google Scholar Law Review Rankings - 2016

Google has published its 2016 Google Scholar Metrics, just in time for the fall law review submissions angsting season to begin (I see that in response to folks already calling for a new Angsting Thread, Sarah has just posted the Fall 2016 Angsting Thread slightly ahead of schedule). I've placed a table with the 2016 Google Scholar Rankings for flagship/general law reviews below the break (with comparisons to the 2015 ranking). I started tracking these Google Rankings as part of the Meta-Ranking of Flagship Law Reviews that I first proposed here at Prawfs in April (combining USN, W&L, and Google scores into a single ranking). And, as both Google and W&L have updated their rankings/metrics since that time, I'm also working on an updated meta-ranking in time for the opening of the fall submissions period (just for fun).

I realize most people probably don't make any submissions decisions based on the Google Rankings (and the methodology does have its limitations; and one startling change in the 2016 data is that the North Carolina Law Review, ranked #21 in 2015, doesn't even show up in Google's metrics this year for some reason - perhaps their article repository no longer meets Google's inclusion criteria), but I do think it provides an interesting metric for measuring law journal impact, alongside the W&L rankings, particularly for someone like me who publishes in both law reviews and peer-reviewed journals in other disciplines. I like that Google Metrics can provide some idea of how a particular range of law reviews measure up to a social science journal - and vice-versa - in terms of scholarly impact. The W&L ranking doesn't provide much of that information, as it is generally limited to law reviews; US News college rankings don't apply; and the Journal Citation Reports rankings by Thompson Reuters doesn't have very good coverage of legal journals.

However, with Google's metrics I can see e.g., how the social science journals I've published in (or am thinking about submitting to) stack up against law reviews. For example, I can see that Government Information Quarterly has a slightly higher average Google Metrics score (63; h5-index of 51, h5-median of 75) than the Harvard Law Review (61; 40/82), that The Information Society (26.5; 21/32) ties with the UC Davis Law Review (26.5; 20/33) and the Ohio State Law Journal (26.5; 18/35), and that Surveillance & Society (21; 18/24) ties the Houston Law Review (21; 16/26). I think this can be helpful for gauging where to submit research that crosses disciplinary boundaries, but I see how it might not be so useful for someone who only wants (or needs) to publish in law journals. I'm curious if any readers find the Google metrics useful for comparing law/non-law journals or for thinking about (law) journal submissions generally.

2016 Google Scholar Law Review Rankings

Includes only flagship/general law reviews at ABA accredited schools (I think I've captured (almost) all of these, but let me know if I've missed any). Rankings are calculated based on the average of Google's two scores (h5-index and h5-median), as proposed here by Robert Anderson. The final column shows how much a journal's rank has changed in 2016 versus last year's ranking (0 indicates no change, a positive number indicates the ranking has gone up in 2016, while a negative number indicates a drop in ranking in 2016).

Journal	Rank (2016)	h5-index	h5-median	Average Score	Rank (2015)	Rank Change
Harvard Law Review	1	40	82	61	1	0
The Yale Law Journal	2	41	61	51	2	0
Columbia Law Review	3	36	61	48.5	3	0
U. Pennsylvania Law Review	4	35	61	48	5	1
Stanford Law Review	5	33	54	43.5	4	-1
The Georgetown Law Journal	6	33	52	42.5	6	0
Texas Law Review	6	35	50	42.5	8	2
New York U. Law Review	8	28	53	40.5	11	3
Cornell Law Review	8	31	50	40.5	13	5
California Law Review	10	31	46	38.5	9	-1
Virginia Law Review	10	32	45	38.5	10	0
Michigan Law Review	12	30	44	37	6	-6
Minnesota Law Review	13	29	44	36.5	12	-1
U. Chicago Law Review	14	29	43	36	16	2
UCLA Law Review	14	29	43	36	15	1
Vanderbilt Law Review	16	30	36	33	16	0
Fordham Law Review	16	28	38	33	22	6
Notre Dame Law Review	18	26	39	32.5	18	0
Indiana Law Journal	18	26	39	32.5	26	8
Duke Law Journal	20	26	38	32	13	-7
Northwestern U. Law Review	20	26	38	32	22	2
Boston U. Law Review	20	28	36	32	26	6
William and Mary Law Review	20	26	38	32	19	-1
Iowa Law Review	24	27	36	31.5	20	-4
Boston College Law Review	25	25	35	30	26	1
Florida Law Review	25	22	38	30	22	-3
The George Washington L. Rev.	27	25	34	29.5	31	4
Emory Law Journal	28	19	39	29	30	2
U. Illinois Law Review	29	22	34	28	29	0
Hastings Law Journal	29	20	36	28	32	3
U.C. Davis Law Review	31	20	33	26.5	43	12
Ohio State Law Journal	31	18	35	26.5	43	12
Arizona Law Review	33	19	33	26	35	2
Maryland Law Review	33	22	30	26	45	12
Southern California Law Review	35	22	29	25.5	37	2
Washington and Lee Law Review	35	21	30	25.5	47	12
Seattle U. Law Review	37	18	32	25	38	1
Cardozo Law Review	38	21	28	24.5	33	-5
Washington U. Law Review	39	20	28	24	35	-4
Wake Forest Law Review	39	18	30	24	38	-1
Wisconsin Law Review	41	20	27	23.5	22	-19
Washington Law Review	41	19	28	23.5	49	8
American U. Law Review	43	19	27	23	40	-3
Connecticut Law Review	44	19	25	22	40	-4
George Mason Law Review	45	18	25	21.5	49	4
Houston Law Review	46	16	26	21	58	12
Alabama Law Review	47	17	24	20.5	49	2
Seton Hall Law Review	47	14	27	20.5	52	5
South Carolina Law Review	47	16	25	20.5	68	21
Brigham Young U. Law Review	50	17	23	20	52	2
Penn State Law Review	50	17	23	20	58	8
Colorado Law Rev.	52	15	24	19.5	47	-5
Pepperdine Law Review	52	15	24	19.5	52	0
Oregon Law Review	52	14	25	19.5	72	20
UC Irvine L. Rev.	55	16	22	19	84	29
Lewis & Clark Law Review	55	16	22	19	33	-22
Santa Clara Law Review	55	17	21	19	64	9
Howard Law Journal	55	14	24	19	55	0
New York Law School Law Review	55	15	23	19	58	3
Georgia Law Review	60	14	23	18.5	55	-5
Tulane Law Review	60	14	23	18.5	64	4
Arizona State L. Journal	62	16	20	18	93	31
U. Miami Law Review	62	14	22	18	77	15
Case Western Reserve Law Review	62	15	21	18	81	19
Georgia State U. Law Review	62	15	21	18	72	10
U. Kansas Law Review	66	13	22	17.5	68	2
U. Richmond Law Review	66	14	21	17.5	77	11
Utah Law Review	68	14	20	17	72	4
Temple Law Review	68	14	20	17	95	27
San Diego Law Review	68	14	20	17	86	18
Loyola U. Chicago Law Journal	68	16	18	17	81	13
Marquette Law Review	68	14	20	17	95	27
Buffalo Law Review	73	13	20	16.5	58	-15
Nevada Law Journal	73	13	20	16.5	86	13
Louisiana Law Review	73	13	20	16.5	64	-9
Mitchell Hamline Law Review	73	14	19	16.5	95	22
Florida State U. Law Review	77	14	18	16	68	-9
Loyola of Los Angeles Law Review	77	11	21	16	46	-31
Missouri Law Review	77	12	20	16	55	-22
DePaul Law Review	77	14	18	16	81	4
Brooklyn Law Review	81	14	17	15.5	77	-4
U. Cincinnati Law Review	81	14	17	15.5	68	-13
Chicago-Kent Law Review	81	13	18	15.5	58	-23
Michigan State Law Review	81	14	17	15.5	118	37
Mississippi Law Journal	81	11	20	15.5	95	14
New England Law Review	81	13	18	15.5	95	14
Pace Law Review	87	11	19	15	86	-1
Washburn Law Journal	87	11	19	15	84	-3
Duquesne Law Review	87	11	19	15	95	8
SMU Law Review	90	10	19	14.5	95	5
Saint Louis U. Law Journal	90	12	17	14.5	95	5
Vermont Law Review	90	12	17	14.5	40	-50
Capital U. Law Review	90	13	16	14.5	113	23
Denver U. Law Review	94	12	16	14	64	-30
Indiana Law Review	94	12	16	14	72	-22
Nebraska Law Review	94	12	16	14	113	19
Hofstra Law Review	94	12	16	14	104	10
West Virginia Law Review	94	12	16	14	123	29
Albany Law Review	94	12	16	14	58	-36
Creighton Law Review	94	11	17	14	86	-8
U. St. Thomas Law Journal	94	12	16	14	113	19
Tennessee Law Review	102	11	16	13.5	93	-9
Texas Tech Law Review	102	12	15	13.5	104	2
Suffolk U. Law Review	102	12	15	13.5	109	7
Valparaiso U. Law Review	102	12	15	13.5	122	20
Catholic U. Law Review	106	10	16	13	113	7
U. Pacific Law Review	106	10	16	13	118	12
Southwestern Law Review	106	10	16	13	109	3
Villanova Law Review	109	11	14	12.5	86	-23
UMKC Law Review	109	10	15	12.5	86	-23
Mercer Law Review	109	10	15	12.5	126	17
Cleveland State Law Review	109	11	14	12.5	123	14
John Marshall Law Review	109	9	16	12.5	118	9
Touro Law Review	109	10	15	12.5	128	19
Rutgers U. Law Review	115	10	14	12	86	-29
Akron Law Review	115	11	13	12	72	-43
Drake Law Review	115	10	14	12	95	-20
Kentucky Law Journal	118	9	14	11.5	118	0
Syracuse Law Review	118	9	14	11.5	104	-14
Maine Law Review	118	10	13	11.5	104	-14
Quinnipiac Law Review	118	9	14	11.5		No 2015 Rank
Idaho Law Review	118	8	15	11.5	104	-14
Wyoming Law Review	118	9	14	11.5	128	10
Chapman Law Review	118	9	14	11.5	109	-9
Ohio Northern U. Law Review	118	8	15	11.5	113	-5
Southern Illinois U. Law Journal	126	8	14	11	131	5
Northern Kentucky Law Review	126	9	13	11	131	5
Oklahoma Law Review	128	10	11	10.5	137	9
U. Toledo Law Review	128	10	11	10.5	123	-5
Arkansas Law Review	130	9	11	10	77	-53
Loyola Law Review	130	9	11	10	131	1
U. Arkansas Little Rock Law Review	130	9	11	10	142	12
St. John’s Law Review	133	8	11	9.5	137	4
The Wayne Law Review	133	8	11	9.5	142	9
South Dakota Law Review	133	7	12	9.5	135	2
U. Memphis Law Review	136	8	10	9	126	-10
Campbell Law Review	136	7	11	9	131	-5
St. Mary's Law Journal	136	8	10	9		No 2015 Rank
Roger Williams U. Law Review	136	8	10	9	142	6
Baylor Law Review	140	7	10	8.5	147	7
Willamette Law Review	140	8	9	8.5		No 2015 Rank
Widener Law Journal	140	8	9	8.5	137	-3
Arizona Summit [Phoenix] Law Review	140	7	10	8.5	147	7
FIU Law Review	144	7	8	7.5	147	3
Tulsa Law Review	145	6	8	7	142	-3
Montana Law Review	145	6	8	7	150	5
North Dakota Law Review	145	5	9	7	153	8
Stetson Law Review	148	5	8	6.5	137	-11
Texas A&M Law Review	148	6	7	6.5	137	-11
South Texas Law Review	148	6	7	6.5	150	2
Thurgood Marshall Law Review	148	6	7	6.5	150	2
Oklahoma City U. Law Review	152	5	7	6	109	-43
U. Hawaii Law Review	153	5	6	5.5	153	0
North Carolina Law Review					21	No 2016 Rank
Mississippi College Law Review					128	No 2016 Rank
U. Louisville Law Review					135	No 2016 Rank
Nova Law Review					142	No 2016 Rank
U. Detroit Mercy Law Review					153	No 2016 Rank
U. Pittsburgh Law Review						Not Ranked
U. San Francisco Law Review						Not Ranked
New Mexico Law Review						Not Ranked
Gonzaga Law Review						Not Ranked
Drexel Law Review						Not Ranked
U. Baltimore Law Review						Not Ranked
Northeastern U. Law Journal						Not Ranked
U. New Hampshire Law Review						Not Ranked
Charleston Law Review						Not Ranked
CUNY Law Review						Not Ranked
Cumberland Law Review						Not Ranked
U. Dayton Law Review						Not Ranked
California Western Law Review						Not Ranked
St. Thomas Law Review						Not Ranked
Widener Law Review						Not Ranked
Northern Illinois U. Law Review						Not Ranked
Regent U. Law Review						Not Ranked
Western New England Law Review						Not Ranked
Golden Gate U. Law Review						Not Ranked
Florida Coastal Law Review						Not Ranked
Barry Law Review						Not Ranked
Whittier Law Review						Not Ranked
Thomas Jefferson Law Review						Not Ranked
John Marshall Law Journal						Not Ranked
Southern U. Law Review						Not Ranked
Elon Law Review						Not Ranked
North Carolina Central Law Review						Not Ranked
Appalachian Journal of Law						Not Ranked
U. District of Columbia Law Review						Not Ranked
Western State U. Law Review						Not Ranked
Ave Maria Law Review						Not Ranked
Thomas M. Cooley Law Review						Not Ranked
Liberty U. Law Review						Not Ranked
Florida A & M U. Law Review						Not Ranked
Faulkner Law Review						Not Ranked
Charlotte Law Review						Not Ranked

Submission Angsting Fall 2016

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron & Levit's extremely helpful guide to submitting to law reviews is available here (this is the July 2016 version). Rostron and Levit have also posted a list of links to law review websites.

Here is the final page of comments.

What Do People Submitting to Law Reviews Want?

From time to time, PrawfsBlawg threads have included thoughts about what those submitting to law reviews want from law reviews. (For example, to receive rejections, rather than just no response at all.) Now that we're getting into the thick of law review submission season, I'm curious whether people have thoughts about what they'd like from Scholastica, Expresso, and other future tools used to submit to law reviews. ("Free submissions" is definitely one thing -- and a valid thing -- other thoughts also very much welcomed....)

The Best Time To Submit Is Precisely 10:40 on Feb. 23

The Yale Law Journal just released some interesting statistics about the submission season for the past 3 years.  Some highlights:

• In the aggregate, the heaviest week of submissions is Feb. 15-21.  The second heaviest is Feb. 22-28
• The number of submissions in early- to mid-March is still significant
• A majority of offers are made in "March or later"
• Submitting too early can hurt your chances, at least if you are not giving them an exclusive window of a couple of weeks and another journal makes an offer first

So if you don't plan to submit for a few weeks, cease your angsting, at least for now.  (If you really feel the need to angst, head over to the Angsting Thread About Angsting Threads).  

Also relish in the fact that, with 16-20 pieces per Volume, you have about a 0.08%-0.10% chance of landing a spot!  That's better than the Powerball!

And now back to writing about election law.  I'll see you soon.  

[Update: Precisely one minute before I submitted this post, Richard posted a much more thorough and thoughtful analysis of the Yale Law Journal's data. So go to his post if you want some real substance on these issues.] 

Submission Angsting Spring 2016

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that the "days to rejection" and "days to acceptance" columns are locked because they auto-calculate. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.

Rostron & Levit's extremely helpful guide to submitting to law reviews is available here.

Here is the final page of comments.

Update: I have added a column to the spreadsheet entitled "Username" (current column H, after "Days to Acceptance"). This is of course totally optional, but a way to make keeping track easier. For example, if you pick a username (for some reason the sample username "Floop" keeps coming to my mind), you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

 

On a lonely island with my two spaces

My perception, based on anecdotal but wide-ranging instances over the last few years, is that most folks use one space after a sentence.  Moreover, those who speak on the subject dismiss the two-space crowd as fuddy-duddies with little or no aesthetic sense.  I must confess--or, I guess it's obvious from this post--that I am a two-spacer, and I really do not want to change.  I *like* the two spaces -- it signals a break, a pause in the action appropriate to the end of the sentence.  Do sentences not matter?  Why should they just get one space like every other word?

Anyway, my questions are these: are there any other two-spacers out there?  If so, why are you still a two-spacer?  And if you are a one-spacer, do you view us two-spacers as relics of some ancient world?  More pragmatically, do law review editors hold two-spacing in poor regard?  Or is it just something they sigh about when they have to do a "find and replace?"

Playing With Al Brophy's Alternative Law School Rankings - Student Centered vs. Student/Scholarship Centered Results

I have all sorts of analytic issues with law school rankings - e.g., reputation means a lot, but it really is based on feedback loops and is really, really sticky; linear rankings by number hide the fact that it's a bell curve on things like reputation, and linear differences in the middle of the pack don't mean much). But it's still interesting navel gazing, and makes a big difference (I think) in professional and academic careers.

Yesterday, Al Brophy (UNC) posted an update to his alternative to USNWR, Ranking Law Schools, 2015: Student Aptitude, Employment Outcome, Law Review Citations.  He uses three variables, entering median LSAT score, employment outcomes (JD required; no school-funded jobs; no solo practitioners), and citations to the school's main law review.  That latter one is interesting because it doesn't measure the scholarly influence of the school's faculty, but instead the school's brand for purposes of law professors placing their articles.  

Al did two analyses, one using only the student variables (LSAT and employment - the "2 var" rank) and one using all three (the "3 var rank").  His Table 2 shows the relative 2 var and 3 var rank for each school, but his comparison are all as against USNWR.  I was interested in "law review lift" versus "law review drag."   So I made a list from Al's Table 2, arbitrarily taking a difference of ten or more as the cutoff.

After the jump, you can see a list of schools whose ranking with their law reviews improves by ten spots or more (law review lift) or whose ranking drops by ten spots or more when the law review gets included (law review drag).  I'll leave it to you to theorize about meaning, if any.

Law review stats enhance student stats ten spots or more

Illinois

Indiana

Florida State

Houston

Utah

George Mason

Cardozo

Cincinnati

Lewis & Clark

Pepperdine

Hastings

Connecticut

San Diego

Brooklyn

Chicago-Kent

Albany

Indiana - Indianapolis

Hofstra

Oregon

DePaul

William Mitchell

American

Catholic

Howard

Akron

Michigan State

Marquette

Seattle

Cleveland State

Vermont

Santa Clara

New York Law School

Ohio Northern

Widener (Delaware Journal of Corporate Law)

McGeorge

Toledo

San Francisco

Suffolk

 

Law review stats drag student stats ten spots or more

 

Georgia

Arizona State

UC-Irvine

Kentucky

Baylor

Georgia State

New Mexico

Oklahoma

Montana

Tulsa 

New Hampshire

Florida International

Rutgers-Camden

Drexel

Syracuse

Hawaii

Idaho

Stetson

South Dakota

Campbell

Duquesne

Chapman

Northern Illinois

North Dakota

Samford (Cumberland)

CUNY

Wyoming

Nova Southeastern

Texas A&M

Oklahoma City

Arkansas-Little Rock

Dayton

Liberty

Elon

Faulkner

Florida A&M

Some Results from the Law Review Submission Practices Survey

Several drafts of my final exam ago, at the beginning of the month, I sent around a survey of law review submission practices.  Our response rate was lousy, and we have no way of knowing how representative the responses thus far are.  (Editors: still want to fill out the survey?  You can go here, and I'll post updates at the Law & Economics Prof Blog).   But, for they're worth, here's what we learned.  

First, there will be a fall season.

 

6. When do you expect to begin reading submissions for the fall cycle?

a. Before Aug. 1	6	42.9%
b. Aug. 1 - Aug. 15	7	50%
c. Aug 16 - Aug. 30	1	7.1%
d. Sept. 1 - Sept. 15	0	0%
e. After Sept. 15	0	0%

7. What portion of your available slots remain open for summer and fall placements?

a. None	0	0%
b. 1 or 2 slots	3	20%
c. Less than a third	3	20%
d. Between one-third and two-thirds	6	40%
e. More than two-thirds	3	20%

Next, the spring season at reporting journals starts & ends earlier than I thought.

1. When did you begin reading submissions for this spring cycle?

a. before Feb. 15	10	66.7%
b. Feb 15 - Feb. 28	2	13.3%
c. Mar. 1-Mar. 15	2	13.3%
d. Mar. 16- Mar. 31	0	0%
e. After Mar. 31	1	6.7%

2. When did you / will you finish reading submissions for this spring cycle?

a. Mar. 1-Mar. 15	0	0%
b. Mar. 16- Mar. 31	4	26.7%
c. Mar. 31- Apr. 15	7	46.7%
d. After Apr. 15	4	26.7%

Journal communications with authors are under stress, and not really what we would choose as our first-best:

4. How, if at all, do you indicate to authors that your journal is open for submissions?

a.  Post to our home page	1	6.7%
b. E-mail to our mailing list	0	0%
c. Change status to “accepting submissions” on bepress or scholastic	9	60%
d. Another way	0	0%
e. No particular way	5	33.3%

9. When your journal makes no response to an expedite request, is it usually because:

a. You considered and rejected the piece	3	20%
b. You were aware of the piece but did not have time to consider it	8	53.3%
c. another reason.	4	26.7%

Except for All the Others

Except for Fenway Park, there is no green grass in New England right now.   Still, I'm sympathetic to those who skim the law review submissions angsting thread, close their browser window in embarassment when a colleague happens by, and then think to themselves, "There's got to be another way."  

In that spirit, I thought it might useful to our reform conversation to report my experiences with peer-reviewed econ and l&e journals.  I've had half a dozen or so, of which one was constructive, pretty fast, and what I expected of a process run by fellow professionals.  The others...well, some are still ongoing.  Suffice it to say that it's a lot like sitting in a busy dentist's office, only for 8 to 12 months and without any good magazines.  

I don't think it's unreformable.  Indeed, I think a good starting place for a conversation about where to go with legal scholarship would be to talk more about which system's flaws are easier to mitigate.  

So, for example, it's possible that the peer-review market could function a lot better with better information.  There's almost no reliable information about how long each journal takes, on average, to complete reviews.  (In fact, it's a little bizarre that a profession whose central premise is the efficiency of well-informed markets would tolerate such an opaque system.)  Mandatory compilation and disclosure of that information would probably create at least some competitive pressure to bring those times down, which might eliminate at least the worst instances of needless delay.  There is a site for griping about long waits, but it is surely not a representative sample.  A laudable exception is AER, which reports a cumulative distribution table (see p.623) of wait times.

At a minimum, journals published by professional associations, such as ALER and JELS, should lead by example on this front.  Board members, are you reading?   

A Law Review Survey

We did a survey on prawfs a few years ago about the availability of law review slots for the fall season, and the results were pretty useful...at a minimum, they disproved the naysayers (me) who had been claiming there was no fall submission season.  I'd like to field another survey instrument, aimed a bit more broadly at law review submission timing and related factors.  Let's crowdsource it.  Below the jump, I list some questions I'd like to include in the survey.  Please feel free to suggest additional questions, kibitz the wording of the existing questions, etc.  This will probably be an on-line, mostly multiple-choice, format.  

I want to keep the survey around 10 questions or fewer so editors can answer without much hassle, so also let me know which of the questions and suggestions you think are most/least interesting.  

I'm aiming to send around the survey at the beginning of next week, and post results at the end of the month.  Law review editors, feel free to e-mail me to request a copy of the survey (see the link to the right for an address).  

1.  When did you begin reading submissions for this spring cycle?

2.  When did you finish reading submissions for this spring cycle?

2a.  Were these dates typical for your journal?

3.  How, if at all, do you indicate to authors that your journal is open for submissions?

3a.  Will you be reading submissions over the summer?

4.  When do you expect to begin reading submissions for the fall cycle?

5.  What portion of your available slots remain open for summer and fall placements?

6.  Are these fall practices typical for your journal?

7.  When your journal makes no response to an expedite request, is it usually because:

a. You considered and rejected the piece; b. You were aware of the piece but did not have time to consider it; c. another reason.

8.  If there was one thing you could change about the submission process, what would it be?

 

Why isn't PRSM more popular?

Following the angsting thread this season and reading Dave's thread about professors breaching law review contracts has made me start thinking again about the law review submission process. Everyone, it seems, agrees that the process creates perverse incentives: professors submit to dozens of journals, so that student editors must make decisions on thousands of articles; student editors are forced to make quick decisions in competition with other journals, and so rely on proxies of dubious merit to decide what to read; students at higher-ranked journals rely on the work of students at lower-ranked journals to screen articles. What strikes me, though, is that the Peer Reviewed Scholarship Marketplace seemed to solve all of these problems when it was created in 2009. It incorporates peer-review from subject matter experts (and provides this feedback for authors to strengthen the piece, whether or not they accept a given offer). It takes away the time pressure of the compressed submission season. It protects the freedom of choice for both professors and for student journals; students still decide which pieces to make offers for (after seeing the peer review evaluations), and professors can feel free to decline offers--they are not obligated to take an offer from a journal they don't wish to publish with. When PRSM was created in 2009, I thought it would quickly become the predominant way that law journals select articles.  Why hasn't it? Do more journals need to start using it so that authors will submit to it? It seems like they have a pretty good cross-section already, as there are 20 journals listed as members, about half of which are ranked in the top 50 law journals, and some in the top 30. Do more authors need to use it, so that journals will sign on? Or is there something I'm missing--some benefit of the current practice that PRSM fails to replicate?

Breaching a Law Review Contract?

I'm one of Temple Law Review's advisors.  Given my views on student-run journals, this is a  bit ironic. But the experience so far has taught me  how much student editors care about getting it right, and how invested they can be in their journal's success.  Or to put it differently, though in theory a goofy academic could generate a hundred more useful ways to spend students hours than law review, it's not at all obvious that any of those alternatives would generate equivalent passion and commitment from students. 

The advising process has also recently given me a new perspective on an old problem. Very often, in the insane & dispiriting process that we call the submissions cycle, you hear of professors getting a great (read: higher prestige journal) offer just after they've accepted at a less great (read: lower prestige journal) placement.  Counterfactual reasoning sets in -- "if only I'd pushed back against those meddling kids!" - and everyone who hears the story feels a punch in the gut, excepting those who refuse to play the game. Inevitably the question is entertained: what, exactly, is stopping the professor from backing out of the deal with mediocre law review A to accept the offer of awesome law review B? After all, the process is crooked, everyone is just reading expedites, and reliance arguments are weak.  Law reviews aren't going to sue for breach of contract -- even if one exists, which might be doubtful.  If they did , this is the clearest case of efficient breach possible. 

But then norms of professional courtesy typically set in. And, though I've been teaching for over a decade, and heard literally dozens of stories like this, I'd never actually heard of anyone backing out of a law review acceptance until this cycle.  Temple just had someone back out.  Because that person is junior - and no doubt listening to a more senior mentor's advice - I'm not going to provide more details.  I will say that the acceptance/rejection cycle was very dispiriting to the students involved, and it rightly might make them quite cynical. And it did make me wonder whether  publication decommitments are  more widespread than I'd thought, and whether journals could (or should) do anything to stop them. 

Have I just been naive? Is law review conscious decoupling common? Is that behavior, in fact, righteous?

Open Thread: How do we Stop the Madness?

By "the madness," I mean this.  Opaque "submission seasons" and letterhead biases and footnote fetishes and massively multiple submissions (I kinda want to start an MMORPG called "World of Lawcraft," all about getting law review articles published) and all the other crazy pathologies of law review publishing.  

As Your GameTheoryBlogger, this seems to me like a classic strategic problem: nobody likes the system, it means huge amounts of work for the students, work that (time for Real Talk(TM)) probably impairs their educations, and most of the real benefit to them is just victory in an insane status arms race in which law review membership is a signal of smartness that law firms respond to; it also undermines the scholarly enterprise to have (Real Talk(TM)) scholarly reputations and their associated benefits depend (yeah yeah only in part post-publication review sure ok) on the judgment of 2Ls with like three minutes to read a paper.  Yet we are unlikely to be able to just replace the system whole-hog with peer review, because the individual costs of doing so are so high. (I confess I kinda miss the early days of Prawfs, where Kate Litvak was around and leading the mighty charge for peer review in the comments. Yes, I remember those days, back in like 2005---I think I even remember the first e-mail Dan sent around announcing this blog's existence!)

More broadly, we seem to have lots of collective action problems like this in legal education. Think of the pitiful death of the law clerk hiring plan. And of the way that we all bow and scrape to the almighty, but universally loathed, gods of U.S. News. Can we get better at it? How do we improve our institutional capacity for collective action? All ideas, no matter how crazy, welcomed in the comments.

Submission angsting: Spring 2015

The submission window is just about to open and we await Redyip's semi-annual return-- some journals already have announced they are accepting submissions. So let the angsting commence.

If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.

Edit: To get to p.3 of comments, click here. To get to the end of comments, click here.

Why Study Athenian Law?

Let’s have a break from game theory.  As some of you may know, I have a research program in ancient Athenian law. I’ve published one big article on the subject, have a book chapter forthcoming, have another paper or two or three in the hopper, and draw on it to understand other things on an appallingly regular basis, even when I write about things like constitutional law and jurisprudence.

 

But that might seem like odd behavior. Although I do read Attic Greek*---which is the main qualification for being able to talk about anything Athens without classicists mocking you**---I am no historian. And anyway, legal historians tend to focus on systems of law that are either part of our (American) legal tradition and the common law tradition that led up to it, or that are at least part of the traditions of other countries that we care about, such as the civil law tradition from Rome or the Islamic law tradition. 

 

But Athens?  Athens doesn’t really linger in a legal sense: almost nothing we do can be traced back to them (although I’d be tempted to make a claim for the jury trial and for the adversary process, and Hayek insisted that the Athenian concept of isonomia—legal equality—is the wellspring of the English ideal). Unsurprisingly, there aren’t many American legal academics who work in the area.  I think this is a mistake: we, qua discipline, are leaving knowledge on the table. 

 

So what is this Athenian law nonsense?  Is it just more Kant in Bulgaria? Have all those trees died in vain? (That cliff-hanger gets resolved after the fold.)

 

Here’s my defense of Athenian law.  Even though Athens isn’t really at the heart of our legal tradition, it is at the heart of our political tradition. The democratic self-understanding of the (male, native-born, not-enslaved) Athenians is remarkably similar to ours, not least because ours is in part directly traceable to theirs through the tosses and turns of intellectual history. And a lot of the other things they were concerned about were also concerns of ours. They, for example, were also concerned about keeping those with socioeconomic advantages from turning them into political advantages (although the worry ran less to campaign finance and more to coups).  They, too, were worried about balancing popular sovereignty with good decision-making---a fun exercise is to read Plato together with, say, my friend Jason Brennan.

 

For the legal academic enterprise, there’s a huge advantage to the conjunction of similar ideals and ends with very different institutions. For they give us an idea of the institutional space available with which our ends may be pursued.  Here’s my favorite example (so much so that I published it): in the U.S. and U.K., we go on about “the countermajoritarian problem,” and sometimes suppose that it reveals a tension between full-fledged democracy and the rule of law: we can either have the majority getting what it wants whenever it wants, or we can have a body of constitutional law interpreted by elite judges holding it within bounds. But then we get to Athens, where there was no elite judiciary—the “judge" was a jury of hundreds of totally ordinary citizens, chosen at random, with full and final authority over questions of both law and fact.  Yet the countermajoritarian problem still came up!  What are we to make of that? What was really going on, when the masses in Athens objected to being asked to consider the legality of their own actions, and can we learn from it in understanding our own countermajoritarian worries?

 

Sometimes, the solutions that the Athenians found to our problems may even be better than the ones we contemporaries use. For example, these days, when we try to “promote the rule of law” abroad, typically this means, among other things, finding a developing country that has just finished having a war and shedding a dictator, and loosing armies of lawyers on that country to professionalize their legal system. Yet Athens had a very amateur legal system, and we might think that amateur legal system was particularly functional when it came time to handle their own effort to rebuild the rule of law after a period of chaos and tyranny—in the beginning of the fourth century, after the Thirty Tyrants. I’ve argued as much in a forthcoming book chapter: the mass jury allowed Athens to reconstruct its legal system in substantial part because it gave ordinary citizens a good way to signal their commitment to legal methods of dispute resolution as well as to the particular commitments their democracy had undertaken.  Do we lose this value when we rush to instill professional legal systems in unstable states abroad?  Perhaps we do, perhaps we don’t, but studying Athens allows us to think about the possibility.

 

 

---

 

* Badly.

 

** Legitimately.  Greek is a really wonky language, and there’s lots of indeterminacy in translating from it. But that’s poison for actually using original sources to understand something about the society the source material came from: some translator can produce a perfectly legitimate and sense-making translation of a passage that has multiple admissible meanings, and so it’s easy to get led down primrose paths by taking someone else’s translation too seriously if you can’t consult the original, or if you don’t know enough about how the language and culture works to know when a translation is suspicious enough to make the original worth consulting/when your argument might hinge on a particular word or two. Having said that, don’t let it that deter you from working in the area!  There’s lots of interesting stuff that can be said in a comparative fashion by drawing on the huge secondary literature produced by classicists and such to shed light on modern legal systems.  

Washington & Lee Law Review: Exclusive Submissions

The Washington and Lee Law Review is opening an exclusive review program for articles until November 24, 2014, at 7:00 PM EST.  The Law Review will extend offers for publication by December 8, 2014.  All authors who submit articles to this program agree to accept a publication offer, should one be extended.  For more information and submission instructions, visit this description.

Clearly established?

Back in June, we learned that at least the Eighth Circuit believes the right to burn a flag is clearly established. I wonder what the Seventh Circuit will think of the right not to have a police officer proselytize and hand-out information about a church in the course of a traffic stop.

Online-only law reviews

It’s well into May, y’all, and well beyond the time that I should bring my April Prawfs guesting stint to a conclusion. For my final post, I thought I’d share my experience doing something new with respect to publication: publishing in an online-only law journal (I'm using the term online-only because many, even most, print journals also publish their articles online--I'm referring to law reviews that don't have a print analog). (The piece, to further conclude my guest stint in the spirit of shameless self-promotion, is “Market Harm, Market Help, and Fair Use,” 17 Stan. Tech. L. Rev. 359 (2014)).

I didn’t have any strong sense that publishing in print journals was the only way to go, it’s just that until recently the alternative had never occurred to me. But the experience was almost exactly the same as it was with print journals in terms of editing schedules and process. And there are a lot of upsides: the article got out there in its final form much sooner, since there was no need to wait for the analog printing process, and there are related green upsides if that’s something you’re into.

I am hard-pressed to think of much in the way of a downside, honestly. The student editing was outstanding, right in the same league as the print journals I’ve worked with. I suppose the most obvious drawback is that there’s no physical circulation for the journal, so your article won’t get into the hands of mail subscribers and libraries (but it is online and on Westlaw and Lexis, which I think is far more important).

One could imagine an argument that people won’t take a publication seriously unless it’s also in print form, but that one just seems implausible to me in this increasingly digital age. The vast majority of articles I read are from digital sources, so I suspect any skepticism about the online-only format will soon be a thing of the past. Having reprints is neat, of course, but that’s a luxury that’s not clearly justified given its costs.

And I guess online-only journals may direct more traffic to their site, and away from SSRN, decreasing the author's downloads, but again--that seems pretty marginal. The important thing is that the work is good and that people read it; SSRN downloads are only a proxy for those much more important considerations.

So having said all of this, and to polemically recast this post as a question to the Prawfs readership, is there any reason to prefer print law review articles? (Archives? Etc.?) Discuss! (And see you all sometime in the guest-blogging future.)

Redyip's return: Angsting Thread Spring 2014 edition

So I understand Redyip is still waking up from his dogmatic winter slumber but the commenters on the prior thread are clamoring for him to brush his teeth and be on his way, so if you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Redyip to bring you for Purim, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.

If you're interested in asking Redyip questions, BDG might come out of the woodwork too to conduct an interview. Here's the last installation of back and forth.

Update: link to final page of comments here.

Law Review Publication Agreements

 

It might be useful for folks to have access to law reviews' publication agreements, whether to help with negotiations, compare copyright provisions, or whatever. I've begun a spreadsheet with links to such agreements that are available on the web. If you are aware of other such links, please add them in the comments to this post or email me directly, slawsky *at* law *dot* uci *dot* edu, and I will add them to the spreadsheet.

If this is duplicative of another such effort, please let me know, and I will (gleefully) ditch my spreadsheet and add a link to the other resource.

I am interested in links to any law review publication agreements, whether main journal, secondary journal, peer-reviewed, or student reviewed. 

The spreadsheet so far is here:

 

 

Update: I included a link in the spreadsheet to the Miami law wiki page on Copyright Experiences. This is a very helpful resource that includes links to information about the copyright policies of a large number of law journals. 

Update 2: I have now gone through the Miami law wiki and added to the spreadsheet links to the full text of journal agreements presented on the Wiki (as opposed to descriptions of copyright policies). I have indicated which links these are by marking a column in the spreadsheet "Miami Wiki." I will now attempt to augment this list as well as replace, where possible, the Miami Wiki links with links to the publication's web page. Three cheers for the Miami Wiki!

Et Tu, Adam? The Lazy Critiques of Law Reviews Continue

When it comes to media stories on legal education, bashing on law reviews is evergreen content.  Why, it was just two years ago that David Segal was offering his own attack on legal scholarship, referring to law review articles as "headscratchers" and quoting Chief Justice Roberts on Kant & Bulgaria.  (And this was my response then, in case you missed it!)  So here comes Adam Liptak with his version of this tired old story, reciting the quotes & studies that have been trotted out before.  I find these critiques to be based on a blend of ignorance, arrogance, and incoherence.  Ignorance because they don't really seem to know what's going on in actual law reviews.  The CJ's quote is a good example -- it's a caricature of a cliche about law reviews, rather than an actual observation about them.  Arrogance because there is always outrage about these "amateurs" and "incompetents" getting to touch the golden prose of scholars.  Sure, some journals and some editors are worse than others, but on the whole students know the Bluebook and are respectful yet challenging of authors.  I have gotten terrific editing from law reviews, including a set of edits at a specialty journal that I just turned around this past month.  Would some peer review be nice?  Sure, but (1) there are peer review journals and (2) meaningful peer review comes in the literature to follow.  When a huge number of professors do their research on SSRN, which offers no review of any kind (other than download counts), the need for peer review to separate wheat from chaff is overblown.  Finally, incoherence -- because the critiques don't fit together.  Law review articles are incredibly esoteric and out of touch?  Then why are they being chosen by editors who almost all go on to be lawyers themselves?  Law blogs are better than law reviews?  I don't know where to begin with that one.  There are a lot of different tropes and agendas meandering around in these critiques, and they just don't hang together.  The critique of internally-placed articles based on Albert Yoon's research does raise real concerns.  But this is a much more subtle point than the rest of Liptak's post.

I have a lot more to say about this, some of which I said in "Law Students and Legal Scholarship" over at the Journal of Law.  But law reviews are a resource for which law professors should be grateful.  I hope more law profs come out of the woodwork to defend these institutions of research and learning, or they just might begin to disappear.

HLR has more women. Discuss.

The Crimson has a story reporting that since the Harvard Law Review adopted a gender consideration for its discretionary slots, the review has almost doubled the number of female admittees to its membership. See here (reporting that women went from 9 to 17 out of roughly 45 people admitted for this year).

Those six of you who have followed this issue with some interest over the years may remember that both Justice Kagan (in her former decanal role) and Professor Carol Steiker (a former President of HLR herself) opposed adding gender to the list of considerations that would figure into the "discretionary" slots. Their stated concern was that it would cast doubt on the accomplishments of those women (including themselves?) who  got onto HLR through the "blind" means (writing competition or grades-inflected scores of writing competition). Of course, this is the same rationale often thrown against affirmative action measures for visible minorities, so one wonders a) do they oppose the use of AA for race/ethnicity or other considerations? and b) if not, what are the distinguishing features are of race/ethnicity versus gender? Is it some kind of critical mass theory to the effect that women have without benefit of affirmative action policies still formed roughly 25% of the law review membership? I confess I'm puzzled by these reactions and not entirely sure what I would do if I were in a decision-making capacity on the HLR. Helping or inspiring people to Lean In during law school doesn't seem nearly so sufficient, though it does seem necessary. Am I wrong?

Anyway, here are some other relevant sources: a story on the HLR internal study a decade ago and some of the more recent coverage on Shatter the Ceiling, a project meant to facilitate female achievement at the Law School.

Ask Redyip

I do not know Redyip.  I did not work with Redyip.  Redyip is not a friend of mine.  But let's just say that I've entreated him (it?) often enough that I know how to get urgent communications to his aerie.  (And no, it's not by tweeting.)

Many of you have questions about the law review process.  Who knows?  Maybe I can get you answers.  Post them here, and let's see what happens.  (I also have some small acquaintance with Bla'a K'hole, the mechanical guardian of planet Peer Review.  Place your questions for him on a punchcard and I will feed them into the appropriate slot.  Warning: answers may be provided in binary.) 

Also feel free to pipe in with your own views. 

The Angsting Thread (Fall 2013 Submission Cycle Edition)

Friends, I have it on good authority that Redyip is not yet visible but he is making preparations for his journey this autumn.  You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.

Oh, one last thing: if you're bored while waiting for him to fly, Redyip whispered to me that y'all should feel free to read and send comments on this little paper.

The Poor are Still Losing: Gideon's Empty Promise

This past weekend I spent some time thinking about the future of indigent public defense and what role, if any, defense lawyers can play in a system beset by racism and classism.  First, I read a provocative essay by Paul Butler, "Poor People Lose: Gideon and the Critique of Rights," in the Yale Law Journal's most recent issue, which contains over twenty articles (all available for free download) by law professors and lawyers reflecting on the 50th anniversary of Gideon v. Wainwright.  

Professor Butler makes a strong case for the idea that the focus on rights discourse -- the right to counsel at trial, the right to counsel during plea negotiations, the right to Miranda, the right to a jury trial -- ultimately has little impact on a criminal justice [or juvenile justice] system in which poor people nearly always lose.  Why do they lose?  Because, as Butler explains, protecting defendants' rights is much different than protecting defendants:  "What poor people, and black people, need from criminal justice is to be stopped less, arrested less, prosecuted less, incarcerated less."  Providing a lawyer -- especially one who is underpaid, overworked, and under-resourced -- does little to change this calculus.  As Butler reminds us, the reason that being poor and African American substantially increases the risk of incarceration has more to do with class and race than with the quality -- or lack thereof -- of the indigent defense system.  

So, what do we do about it?  That, Butler acknowledges, is the hard part.  We certainly don't discourage law students from becoming public defenders, because on an individual level, they do help clients [more on this below].  But what is the alternative?  Michelle Alexander has urged defendants to take their cases to trial, putting a stop to the vicious plea mill that has subsumed the adversarial process, and to "crash the justice system."  Butler has called for "racially based" jury nullification for nonviolent, victimless crimes as well as decriminalizing or legalizing drugs.  I'm not convinced that these specific strategies in and of themselves will catalyze a social reform movement large enough to alter the system, but it's clear that nothing should be discounted, for the situation is dire.  

With all of this percolating in my mind, I happened to watch the new HBO documentary, "Gideon's Army," which follows three public defenders working in under-resourced counties in Georgia and Mississippi.  The film was engrossing and offered (what seemed to me, at least) a realistic portrayal of the challenging and gruelling nature of indigent defense.  The three young PDs -- two women and one man, all African-American -- were dedicated and driven, although one understandably walks away from the job when she can't pay her bills to support herself and her son.  The film concludes (perhaps for marketing purposes) with a happy ending -- an acquittal after a jury trial, which made me -- a total sap -- cry as the PD was hugged by her (young black male) client and his (low-income) single mother.  

But as the credits rolled, I didn't feel much like recruiting baby PDs for this "army" or donating to the organization that inspired the documentary -- the Southern Public Defender Training Center (SPDTC) (now called "Gideon's Promise"), led by the dynamic (white male) Jon Rapping.  Instead, I wanted to crash the system.  The film's explicit message is that there's a "battle" going on in which dedicated and hard-working PDs can win if only enough of them sign up, endure slave wages, and get down with representing one poor person of color (and the occasional white poor person) after another, as our prisons only continue to expand.

The director, Dawn Porter, draws clumsy parallels to the civil rights movement (and even offers a cameo by John Lewis who appears at a fund-raising event for SPDTC), but there's no acknowledgement that the lawyers who represented civil rights workers in the south had clear goals and objectives, while these PDs are fighting for...what exactly?  By acting as cogs in a broken machine, one that even Rapping admits is "hell,"  they are not bringing about systemic change.  Yes, they may make a difference to an individual defendant, but there is no talk of broader-based action -- such as a demand for a living wage, reasonable caseloads, or enough funding to perform basic investigative tasks and forensic testing.  Let's be real -- how could there be this sort of activism?  These lawyers are barely hanging on, working 15-16 hours/day and scrambling for change to buy enough gas to get them to the courthouse.    

Don't get me wrong -- I was a proud public defender for ten years, and as a clinical professor, I still represent the same client population; I am heartened whenever one of my students enters this field.  But I would never suggest that the work of the average PD, like the ones featured in the film and in most offices across the country, actually transforms the populations they serve or that the appointment of a lawyer -- the RIGHT to a lawyer -- helps dismantle the incarceral state.  

I would also be reluctant to recruit young lawyers for this work using the pitch championed in the film, because as romantic as it sounds, it will inevitably attract people for all the wrong reasons, such as one of the women who balks when a client feels no remorse for his heinous crime.  She thought she was on the "right" side of the war, only to find that the lines are not so easily drawn.  As Travis Williams, my favorite PD in the film said, "I don't see how you can do this job for any period of time and not love it.  Either this is your cause or this ain't."  He's the guy who has tattooed the names of his clients who have been convicted after trial on HIS OWN back.  He will be a career PD, and his clients will be truly blessed to have him on their side.  He also recognizes, however, that the work is thankless, that the conditions are unlikely ever to change, and that it's more of a marathon than a war.  A marathon with no end in sight.    

Your thoughts?  Please share in the comments.   

 

Baude on Spillenger on Extraterritoriality and the Constitution

More on today's decisions (and perhaps a few more comments on my prosecutorial comment post) when I'm not running to grab a plane (the story of my life).  For now, I just wanted to cross-promote a post I have today on JOTWELL, State Boundaries and Constitutional Limits.  From the post:

Territoriality is a basic premise of the federal system; everybody knows that the New York legislature can’t just sit down and rewrite all of the laws of New Jersey. This seems like a common-sense requirement of our constitutional structure.  But as Clyde Spillenger demonstrates in Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, the nature and source of this principle is misunderstood today. ...

And from the conclusion:

By the way, so far as I know, this piece has not yet been picked up by a law journal. Student editors who are reading this: grab it while you can!

Holes in the dueling submission systems

Redyip has again been sighted. But now, her (his? its?) semi-annual call sends us scurrying to a second main submission system (putting aside the direct-submits). And Corey Rayburn Yung (Kansas) emails Dan and me to suggest that this creates some problems; his email is reprinted in full below (with his permission):

I thought either of you might be interested in posting about a hole in the new submission system with Scholastica and Expresso. If an author receives an offer from a Scholastica journal (i.e., Cardozo, Iowa, USC, or California) and wants to use it as the basis for an expedite request to an Expresso journal, there is a problem. Most, if not all, of the Scholastica journals are no longer listed as sources of offers in Expresso. And an author no longer has the option to just type in the name of the journal that made an offer. As a result, the only option an author can choose is to that he or she did not wish to disclose the identity of the offering journal. Then the author can put the name of the journal in your subject line and body of the email.

That would be fine except for how the new Expresso system looks on the journal’s end. When viewing all expedite requests, the text and subject of the email is not visible. Instead, the journal editor will click on “Details” from the list of expedited articles which will then reveal only that the author chose not to disclose the source of the offering journal. And given that most (if not all) journals will not take expedite requests from unknown journals, the editor will simply reject the article. Until this issue is resolved, I would implore law review editors to look further at those expedite requests with no offering journal listed to see if there really is an offer from a Scholastica journal before disposing of the article based upon policy.

Has anyone else experienced this problem and/or figured out how to resolve it?

Scholarship and Indemnity Clauses by the Law Reviews

I'm on the AALS Scholarship Section exec board for some reason, and in that capacity, I recently rec'd a great email from Donald Tobin, the associate dean for faculty at Ohio State Law, who writes on an important but frequently neglected issue: indemnity clauses in law review agreements. Specifically, he wrote the following:

I think there is a growing and real problem with law reviews requiring authors to sign indemnity clauses.  These clauses require authors to indemnify the journal and university from any costs associated with lawsuits, including, in some cases, costs associated with frivolous cases.  The problem with these types of clauses is that they impact the most vulnerable of our faculty and also those writing in controversial areas including human rights, minority rights, equality, etc.  I have just finished trying to help one of my faculty members negotiate one of these releases.  We came across the following problems:

1)       While Universities will defend faculty members who are sued based on their scholarship, many Universities will not indemnify other institutions.  For example, the State of Ohio prohibits its institutions from indemnifying other institutions.

2)      Insurance protection does not work.  I looked at whether the faculty member could purchase insurance through AAUP.  The insurance company indicated that it would defend the faculty member, but would not make payments under an indemnity clause.

3)      The faculty member is thus stuck.  We are placing the burden on the people least able to bear it.  From the university to the faculty member and the faculty member has no means of protecting herself.

4)      Journals sometimes say, Don't worry; suits are unlikely. But if the suits were so unlikely...why shouldn't journals bear that risk? 

5)      Journals might also say:  the author has the most control to determine if they are committing a tort.  But there is no protection for frivolous suits or for suits generated for political reasons.

6)      These indemnity clauses, I am led to believe, were standard.  I did not think that was the case but I have a list of a number of top journals that had similar clauses.

7)      Finally, I was told that the AALS model agreement had an indemnity clause – and it does.  So we as an institution are contributing to this mess. 

To me, this is what institutions do.  They protect academic freedom and they should shoulder the burden of dealing with frivolous suits.  They should not then seek payment from an author.  It might be different if the author did something wrong – like plagiarized – but the idea that in general authors are on the hook seems very wrong to me.  As an institution we should either discourage these types of provisions or we should obtain some type of group insurance that either authors or institutions can buy for protection. When I spoke about this at AALS, most people were unaware of these provisions and there is some indication that even as lawyers we just sign these things, but they pose a real problem for some of our most vulnerable colleagues. Here is a link to a model agreement containing an indemnity clause:  http://www.aals.org/deansmemos/98-24.html

The AALS agreement is better than the one my faculty member was asked to sign because it at least doesn’t put the author on the hook for frivolous claims, but it still requires an author to pay the judgment and attorney’s fees.

--

Thanks for that Donald. So, what is to be done? A collective response by the associate deans for scholarship at the top law schools or even better, more generally, would be helpful. Of course, indemnity clauses are just one obnoxious aspect of law review agreements. Copyright assignments are typically the other! 

Wow, That Helps

The one piece of judicial language you don't want popping into your head when you check your email to see if anyone's accepted your article:

"But in America they are miserable merchants of unwanted ideas; their wares remain unsold."

Dennis v. United States, 341 U.S. 494, 589 (1951) (Douglas, J., dissenting).

Down the Runway It Goes

As anyone knows who's written an article or even a long paper, there's a discernible cycle in the author's attitude about his work.  You have what you think is a good idea, you write up the basics, you get discouraged, you put it away, you get another idea and come back to it.  So it goes, on and on, until you decide it's done and it's good and it's polished and it's ready.  I was at that stage last night.

Then I watched Project Runway.  It's a great, fun show to watch.  One of the most interesting parts is watching the designers as they see their work going down the runway.  I'm no fashion critic, but it's usually clear enough when someone has done a really bad job.  And what's striking is that, more times than not, the designer is absolutely delighted with his work.  His smile just yells out, "it's good and it's polished and it's ready."

So OK, so it's hard to be objective about your own work.  But what I'm really curious about is when people know that their work is ready for submission.  What are your last steps?  Another proofread?  Another substantive read to see if you just missed something?  Another footnote?  Another tweak of the cover letter?    I ask this both in terms of what you're insistent on as matter of your personal pride in your work -- what you're willing to have editors see -- as well as instrumentally -- what might make the difference between a good submission result and a bad one.  What are the last-minute fixable issues that matter?  Any thoughts?

The Angsting Thread (Law Review Edition, Spring 2013)

Friends, the time has come when Redyip is visible.  You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please. Maybe Redyip will even tweet a little this spring.

Update: here is a link to the last page of comments.

Twitter Census of Law Reviews

I tweet occasionally @derektmuller (feel free to follow) on election law, litigation, baseball, Malibu weather, and Notre Dame football (gulp). And the work by Bridget Crawford at The Faculty Lounge in aggregating a law professors’ Twitter census was an extraordinary and highly useful effort.

One good thing about Twitter is the ability to share and read links in a simple, shareable format. And what better place for law journals to promote their recent publications than on Twitter? Well, so I think. It’s difficult to keep track of what so many different journals are doing (with the notable exception of the excellent work at the Law Review Forum over at Concurring Opinions), so Twitter might be a good one-stop shop to see recent publications. (And both as advisor to the Pepperdine Law Review and one eagerly awaiting the arrival of Redyip, I’m particularly interested in what journals are doing.)

But, I haven’t found (or maybe I wasn’t looking hard enough) a good aggregation of law review Twitter feeds. I thought I’d give it a try.

Below are the Twitter feeds for a handful of law reviews. (And I suppose a “census” is a misnomer, because it’s by no means any attempt to be exhaustive.) I’ve aggregated them to a single list here, if you want to subscribe via Twitter. I couldn’t find a number of them (e.g., Columbia and Virginia), so perhaps they do not exist, or perhaps I simply didn’t look hard enough (notice a theme?). A few have ceased activity (e.g., Michigan). Others have no tweets (e.g., Duke). But, here they are, in a somewhat-random and idiosyncratic order.

Yale Law Journal: @YaleLJournal

Harvard Law Review: @HarvLRev

Stanford Law Review: @StanLRev

University of Chicago Law Review: @UChiLRev

NYU Law Review: @nyulawreview

Michigan Law Review: @michlawreview

California Law Review: @CalifLRev

Penn Law Review: @PennLawReview

Duke Law Journal: @DukeLawJournal

Georgetown Law Journal: @GtownLawJournal

Texas Law Review: @TexasLRev

Cornell Law Review: @Cornell_Law_Rev

UCLA Law Review: @UCLALawReview

Boston College Law Review: @BCLawReview

Boston University Law Review: @BULawReview

UC Davis Law Review: @UCDavisLawRev

Ohio State Law Journal: @OhioStateLJ

Fordham Law Review: @fordhamlrev

Alabama Law Review: @AlaLawReview

Iowa Law Review: @IowaLawReview

Illinois Law Review: @UIllLRev

Florida Law Review: @UFLawReview

Tulane Law Review: @TulaneLawReview

American University Law Review: @amulrev

Pepperdine Law Review: @PeppLawReview

Cardozo Law Review: @CardLRev

Connecticut Law Review: @ConnLRev

George Mason Law Review: @geomasonlrev

Oregon Law Review: @OregonLawReview

Temple Law Review: @TempleLawReview

Denver Law Review: @denverlawreview

Feel free to list additional law reviews in the comments!

The Competing Claims of Law and Religion: Who Should Influence Whom?

We attract some extraordinary scholars for symposia here at Pepperdine. In case you hadn’t heard, Malibu is a fantastic place for law professors to spend a weekend in January or February. (The forecast for today, January 22, is mostly sunny, 77 degrees. How’re you feeling?)

But it’s also distinct aspects of the law school that attract great symposia. The school’s religious affiliation, for instance, helped prompt an extraordinary conference last winter, “The Competing Claims of Law and Religions: Who Should Influence Whom?” The Pepperdine Law Review has just published the fruit of that conference. (And, as faculty advisor to the Law Review, I’m fond of reading the products of the students’ diligence.)

If you’re interested, check out the work from Abdullahi A. An-Na'im (Emory), Patrick McKinley Brennan (Villanova), Zachary R. Calo (Valparaiso), Sherman J. Clark (Michigan), Robert F. Cochran Jr. & Michael A. Helfand (Pepperdine), Mohammad H. Fadel (Toronto), Chad Flanders (St. Louis), Richard W. Garnett (Notre Dame), John Lawrence Hill (Indiana McKinley), James Davison Hunter (Virginia), Andrew Koppelman (Northwestern), Michael Stokes Paulsen (St. Thomas), Barak D. Richman (Duke), Susan J. Stabile (St. Thomas), Mark Strasser (Capital), and Eugene Volokh (UCLA). (Whew!) You can browse the entire special issue here.

Crystalline statutes and mazelike tours

This fall, I have been covering Kloeckner v. Solis for SCOTUSBlog (case preview here, argument review here). The Court decided the case on Monday, holding 9-0 (per Justice Kagan) that any federal employee who was terminated and also subject to discrimination (a so-called "mixed case") can seek review of a Merit Systems Protection Board decision by filing suit under the discrimination statute in federal district court, rather than having to appeal to the Federal Circuit (which hears MSPB appeals in non-discrimination cases). Lyle Denniston wrote the recap for SCOTUSBlog; I just want to add a few more points.

My prior pieces on this case highlighted the constant refrains about the complexity of the case and of the statutory scheme (oral argument was filled with "say that again?" and "slower, please"). Kagan's opinion does a great job of simlifying the statute and the question, laying out the relevant provisions, explaining how they work together, and insisting that the right answer is "crystalline" from the text itself. The Court is often criticized for clouding the waters; it is nice to see a case that clarifies and produces the simplest approach. In contrast, she rejects (and disparages) the government's "mazelike tour" through the statute; after laying out the government's statutory argument in detail, Kagan says "[i]f you need to take a deep breath after all that, you're not alone."

I have written previously that Justice Kagan is a terrific writer and her opinions are a pleasure to read. This case is no exception--sharp and snappy and, obviously, quite sardonic. She makes a great read out of a case that was always destined to go to the junior-most justice (do you think she's looking forward to President Obama's next appointment?).

Whither the Jewish vote?

Has anyone heard or seen much about polls indicating how the Jewish vote is expected to go this time? Jews have historically leaned strongly Democratic, even as they, as group, have gained in socio-economic power (the famous paraprase of Milton Himmelfarb is that "Jews earn like Episcopalians and vote like Puerto Ricans."). In 2008, Obama won around 74 % of the Jewish vote--this despite initial fears over older Jews, which prompted the Great Schlep in which younger Jews were encouraged to go visit their grandparents in Florida to encourage them to vote for Obama. And while the profile and influence of a Jewish conservative movement has risen in the past decade, the numbers have remained fairly stable since 1972. Georgetown's Program for Jewish Civilization sponsored a symposium on the subject last week (videos included); interesting stuff. One of the speakers at the symposium identified data howing Obama ahead of where he was in the polls four years ago.

So I was surprised to learn of one recent, admittedly non-scientific poll: The first-graders in my daughter's Reform Jewish day school (n=37) seem to be about equally divided between Obama and Ryan, with one class heavily for Romney. This presumably means their parents are similarly divided--or my daughter is in a preternaturally conservative and independent cohort. Needless to say, I was surprised; I expected something like a 75-25 split, maybe higher. Predictions that the Jewish vote would change have generally focused on the increasing populations of Orthodox Jews (who, like many religiously observant groups, tend to vote Republican) and of more-conservative immigrants from the former Soviet Union. But neither of those population points explains this result (which admittedly will not make it  into the 538 calculations).

The Angsting Thread (Law Review Edition, Autumn 2012)

Friends, the time has come when Redyip is visible.  You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.

Update: Here is a link to the last page of comments.

 

"Intake"

The first of August!  My 2L classmates and I are wrapping up our summer jobs, beginning warily to eye our fall course / externship / clinic schedules, and -- in my case, anyway -- helping to get chlorine out of three daughters' hair and tuck them in.

And, mirabile dictu! The first of August:  Law professors all over the country are beginning to e-mail me in increasing numbers.  They want my attention.  They deserve more of it than they will, on average, get.  -- But my crackerjack colleagues and I are going to do our best.

I am the Submissions Editor of the Cleveland State Law Review (among other things).  I hope this month to offer some perspective as a student and student-editor, with occasional reference to the professional worlds I have known and more than half an eye on the profession I am seeking to join.  In addition I have a number of thoughts about proceduralism, institutional identities, and the historic legal event of the summer, the power of which we are only beginning to appreciate.  I thank Dan for inviting me to the special occasion that is every day on PrawfsBlawg.

This is the proper place for me to say that the job of Submissions Editor fills me with humility.  But in fact, for all of us, receiving cover letters and c.v.'s from highly accomplished people seeking our approval has a sadly predictable opposite effect.  We read critically, especially at first:  noting to each other before anything else sections that can be profitably cut, and particular footnotes that seem just a tad scanty.  -- But with your help, we do become readers; and with your help, perhaps more than anyone else in the profession, we learn from your work.

I am not sure how much it occurs to you that we editors (we callow self-credentializers who, through various wretched historical accidents in the development of legal academia, are perennially granted inordinate power over your career opportunities) -- we editors, I say, even as we seem to hold your work hostage, are a captive audience.  We read what you write.  And we are grateful for it.

So let me start on that note -- gratitude for the intellectual generosity manifested in the manuscripts we are receiving by the half-dozen.  

And let me begin with the first thing I've noticed:  cover letters are a tremendous, and often squandered, opportunity to win us over.  Much as we care about thorough scholarship, lucid explanation, and practical significance, we are also, like everyone else, apt to slip into motivated reasoning.  And decisions get made subconsciously perhaps before they are made consciously.  So first impressions matter a lot.

I suggest that you relax us with your cover letters.  Write cover letters for the human reader.  That first sentence should showcase a little personality, and tell us about the article in casual terms.  For example (and I'll use my student Note as an example all month):

"The attached article makes an implicit prediction:  In the near future, the Supreme Court will issue an opinion that says to lower courts, in effect --  'Iqbal, Iqbal, Iqbal.  Give it a rest already, now and then, would you?' "

The following sentences then would need to make crystal-clear why such a prediction is, unflippantly, justified (spoiler:  it's all about jurisdictionality).

No student will be troubled by the casual nature of that sentence, as long as the heft is elsewhere in the submission to back it up.

There is, in a word, no reason that the staid, methodical writing voice that gives your article scholarly credibility should also constitute your self-introduction.  In the cover letter you are speaking to students, not the judge who might eventually be persuaded by your doctrinal advocacy once the article propagates through Westlaw.  We students want to like and trust you before and as we learn from you.  (And I suspect the judge does too, although she is trained not to need that factor.  Even so, it matters, for everyone:  surely his style is a big part of the reason everyone defers to Judge Posner so much.)

Allow me to add, before signing off for day one, that this advice is not meant to be easy to follow.  There is nothing harder to achieve than effectively casual writing.  I believe, in fact, that I spent longer just now on that sample cover-letter sentence than on any single sentence in the main body of my student Note.  And yet I am not sure that it works.  I should probably sleep on it, and before sending in such a cover letter I would probably scrap and rewrite such a sentence several times.

But this is a blog, and as such ephemera.  A blog post is fleeting (isn't it, Dan? I have professional constituencies to be aware of).   It's all right if it's disorganized, and essayistically repeats itself...

To recap:  The cover letter seeks a certain emotional, not cognitive, effect.  Cover letters do not embody the article, but they create the context in which it is read.   

I suggest that formal epistolary disquisitions, like painstaking persuasive briefs, have their place; but the cover letter is much more like voir dire.  If the jury doesn't like you, personally, after voir dire, you've wasted a golden opportunity, and no amount of motion practice can make up for it.

Please take this item as an invitation to post the best introductory sentences with which you, or someone you know, has introduced a piece of scholarly writing from the outside.  The poets call such a text an envoi:  an accompanying ambassador, not the monarch herself.  It is personable, not stately; it does no work of its own; yet it makes possible the encounters of state.  

Examples please!

 

Update:  Having slept on it, I now think a better first opening for my Note cover letter would be

"However imperfectly we understand the case, law students and attorneys generally agree that Iqbal now sets the standard for a motion to dismiss a federal lawsuit.  In one important respect, this consensus is wrong."

Scholarship for the Courts: A Different Kind of Cert Pool

Via Dave Hoffman's post having to do with the questionable utility of non-elite journal experience for law students, I came across our own Matt Bodie's spirited defense of student participation in the legal scholarship world. And by looking up Matt's article I stumbled upon Ross Davie's new piece for the Journal of Law, entitled "In Search of Helpful Legal Scholarship, Part I."  It is written with Ross' characteristically light and perceptive touch and the gist of his "opening remarks" is that there should be some vehicle by which the courts (particularly the SCT) are made aware of the relevant scholarship on an issue, e.g.,  when the Court grants cert on a particular case. Here's a taste:

Professors should organize a cert pool of a sort for law review articles. They have the knowledge: they know 

scholarship, good and bad. They have the know-how: they know peer review, pure and corrupt. 

(Peer review of a sort is at the heart of this project.) And they are in position: they have the tenure 

that frees them to speak truth not only to power, but also to each other. But rather than 

giving the Justices stacks of  memos evaluating every single law review article (as the clerks in the cert pool 

do with petitions in every single case), the professors should take a different kind of case-by-case approach.

Every time the Court grants a cert. petition or otherwise agrees to hear a case, they should give the Justices 

a simple, readably short list of those articles most likely to be helpful in deciding that case. Then the 

Justices or their minions can read the helpful scholarship themselves. Each  list should be in the form of 

(and filed as) an amicus brief – a truly brief “brief of scholarship” rather than a conventional “scholars’ brief.”

I like this suggestion a lot. Ross suggests that the AALS or JOTWELL could do something like this in terms of organizing a cert pool of scholars. What do y'all think? I would guess that the list would be of interest not only to the courts/justices but also the litigants to some extent, especially when the litigants are not as savvy as the usual elite sct bar practitioners.

Btw, if you've not been keeping up with Green Bag or the Journal of Law,  some links for the latest issue of Green Bag are after the jump.

Green Bag

Volume 15, Number 3 (Spring 2012)

EX ANTE

Mistakes • Bobble Berring

TO THE BAG

James J. Duane • George A. Heitczman • George W. Liebmann

ARTICLES

Curtis E.A. Karnow, Similarity in Legal Analysis & the Post-Literate Blitz

Pierre N. Leval, Remarks on Henry Friendly on the Award of the Henry Friendly Medal to Justice Sandra Day O’Connor

James Oldham, Only Eleven Shillings: Abusing Public Justice in England in the Late Eighteenth Century (Part 2 of 2)

David Roe, Little Labs Lost: An Invisible Success Story

Laurence H. Silberman, The Development of “Final Offer Selection”

FROM THE BAG

Ross E. Davies, The Pastiche Prosecutor: A Speculative Introduction to Mr. District Attorney

Unknown, Smashing the Taxicab Racket

REVIEW

Cedric Merlin Powell, Identity, Liberal Individualism, and the Neutral Allure of Post-Blackness

EX POST

John L. Kane, Jr., The Inmate

Alice B. Richards, Studying for an Evidence Final on a Cold Winter’s Night

 

 

Is the (Printed) Law Review a Flower that Should Bloom?

Over at the Atlantic, Walter Olson reprises the claim that law reviews are worthless. Among his reasons, he notes the ready availability of other outlets for law professors to share their views about matters of significance (and in this vein, he has in mind websites like TNR or the Atlantic or law blogs like Volokh or Balkinization or perhaps ahem...). My initial response: let a thousand flowers bloom. If, in addition to writing for law reviews or university presses, prawfs want to write on blogs and do opeds, they should do so. But if Olson's saying, we should get out of the long form scholarship game, I say a pox on his house. I don't think he's actually saying that, although he suggests it by tired references to Chief Roberts' views about Bulgaria and Kant.

Regardless of whether Olson denies the net value of long form scholarship, I think he is wrong to assume that "talented law profs" seek out short form options to present their ideas because that's the first best place to be.  I can't speak for others, let alone the class of talented law profs, but I suspect at least some of us hardly desire to go online to do short form writing as such. Rather, it's more a matter of resignation about where the eyeballs might be and what civilians' attention levels are. If 50,000 or 1 million people read the articles on my SSRN page, I would probably never care to write an oped about a legal issue, let alone a blog post. Indeed, I suspect the reason we care about the placement ladder is largely an assumption that if it places in a top journal, it will get read more (by the right demographic). But writing to get the argument right requires patience and diligence. Opeds don't reward that. At best, they're a preview or a trailer of the real thing.

And fyi, Walter, writing for the Atlantic and whatnot is not always easier too. Compared to blogposts, opeds or essays for general mags are more annoying because of the comparative lack of control or slowness of publication. For example, the Times accepted an oped I co-wrote more than a month ago, and we're still waiting to hear (even vaguely) when it will run! Most opinion journal editors act like tyrants because they know they can get away with it. (Not you of course ___, ___,  etc!) And compared to law reviews, which are admittedly slower to publication (and this has changed somewhat with the proliferation of online law review addenda/fora/pennumbra etc), opeds or mainstream essays are neither easy to place nor necessarily reasonable about editing. At bottom, I usually enjoy the experience of  writing for law reviews more than writing for popular press.  Not always, but enough to want to stay in the law review publication game. To the extent I write for the mainstream media, it's more because I think I have an obligation to those who fund my scholarship to try to get the ideas out into the mainstream rather than simply hope for citations within the law review or philosophy/political theory literature. Anyway, I might be an outlier, and maybe Olson's narrower point, that we'd be better off with only online scholarship venues, is true. But, fwiw, I am happily the kind of person who still enjoys looking through the pages of HLR, the Mich LR books issue, and most of the other journals in our faculty lounge.

In any event, Olson's essay focuses on a sideshow. The real problem in law scholarship is not where it appears or how long it is, but whether it is lockboxed. To my mind, every piece of legal scholarship produced should be available online either in final draft or penultimate draft. I actually think scholars have an ethical duty to make that happen, at least in the law context. But that's another blog post.

 

Heart of Atlanta, Roberts style

Chief Justice Roberts wrote only for himself on the Commerce Clause and Necessary and Proper issues, explaining why the law was invalid on those grounds before turning to taxing issue and ultimately upholding the mandate. The key to Roberts's analysis is that the mandate "reads more naturally as a command to buy insurance than as a tax." It therefore had to first be analyzed (and rejected) as a Commerce enactment. It only could be analyzed as a tax through a saving construction, which only is imposed if the law would otherwise be unconstitutional. Only after that saving construction, the Court then could perform the Taxing Clause analysis.

But because constitutional invalidity must come before the saving construction which must come before the Taxing analysis, making the first step necessary to the judgment. And thus the confusion over whether this is dicta and whether there is a five-vote majority for the Commerce analysis.

In Heart of Atlanta Motel v. United States, SCOTUS upheld the public accommodations provisions in Title II of the Civil Rights Act of 1964. Congress had pointed to and discussed two power sources during the legislative debates--Commerce and § 5 of the Fourteenth Amendment. But the latter would have required reconsideration of The Civil Rights Cases, which held that Congress could not regulate non-state conduct through § 5. The Court upheld Title II on Commerce grounds, without discussing (or feeling it necessary to discuss) § 5.

This was despite the following: (379 U.S. at 257)

Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.

But under the approach Chief Justice Roberts took today, the Heart of Atlanta analysis arguably would have had to go as follows (with apologies to NFIB, slip op. at 44):

[Title II is concerned with a moral and social wrong.] The statute reads more naturally as [a way to ensure the Equal Protection of Laws] than as a [regulation of commerce among the several states] and I would uphold it as a way to ensure Equal Protection if the Constitutional allowed it. It is only because [§ 5 of the Fourteenth Amendment] does not authorize such a [law] that it is necessary to reach the [Commerce] power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that [Title II] can be interpreted as a regulation of [commerce]. Without deciding the [§ 5] question, I would find no basis to adopt such a saving construction.

Now, perhaps that would not have been a bad thing, as it would have forced a § 5 analysis and we might have gotten a very different analysis and conclusion than we got 25 years later in United States v. Morrison.

Still, Congress often legislates pursuant to multiple power sources or pursuant to a power source and in light of an outside limitation on power. Are there other instances of the Court insisting that a law must be "read more naturally" as derived from one power than another, such that that power had to be analyzed first and becomes essential to the judgment, even if the ultimate conclusion is to uphold the statute on that other ground? It seems to me that the ordinary (and better) process is to read the statute and accept Congress' asserted power source(s) and evaluate the law under all that may apply. And it ordinarily is (and should be) enough to find one power source on which to uphold it; its invalidity under any other source should not be necessary or relevant to the judgment.

Underneath the Law Review Submission Process: Part X Advice for Law Review Articles Editors

For my final two posts on the law review submission process, (see intro, part I and part II on timing of submissions,part III interview, part IV interview, part V interview and part VI interview, part VII expedites, part VIII memes and part IX fall submission timing if you are interested) I am going to leave with some advice for current (and future) law review articles editors. Besides Eugene Volokh's great book (which all articles editors should read) there is not much out there as far as advice for new articles editors.

In this series of posts on the law review submission process, we professors have learned a lot from several articles editors through interviews and comments.  We have been (mostly) humble and have tried to learn as much as we can from this process in order to improve our submissions and get a better sense of what exactly goes on after we submit a piece and how generally we can improve the quality of our work. 

But of course, we wouldn't be proper prawfs if we didn't get a bit didactic here as well.  So, this post is dedicated to teaching articles editors (which I hope will be as humble as we have been) a few things we have learned over the years.  As a former editor-in-chief who was heavily involved in article selections (at BYU Law in 2003), I want to share a few thoughts.  My next post will be advice from two former articles editors turned prawfs.

Four tips for articles editors:

1. Try to go back to when you used to be an interesting, well-rounded person and not a law student.  Now you see your parents' swimming pool as an attractive nuisance, your fifth grade class christmas party as constitutionally suspect, and every school yard fight you ever got into as a tort.  This is all good and natural, but as you are evaluating articles, try to get out of your 1L frame of mind and think about things that really matter to the world that might intersect with the law. 

In considering an article, think, would this be something I would see reported in a newspaper, magazine or on television? Would I want to share what I learned in this article with a friend? A law professor? Who might care about this article? Before you went to law school, you were a really bright person who thought about ideas, social problems, and various different fields. All of this is great and makes you part of a diverse law student body which can help you recognize the importance of submissions made to your law review.

In your first year of law school you've learned a few really important topics; but these topics are not necessarily the most important ones in the scheme of scholarship or to the legal world at large.  Don't let law school suck the interest you may have in a wide variety of topics out of you or narrow your interests into just what we teach you in the first year.  Try to think about legal problems, but also think about other unresolved or broader public policy issues and see if the articles you are examining tackle those in any significant way--or help the world think about these issues in a different, but helpful light. 

True story: despite my undergraduate premed science education, my major in sociology, research and interest in Africa and Iran, I thought given my successful first year law student transformation that the most important and interesting article that I read as an editor was one about the history of the Lochner court.  Not that the Lochner court is not interesting and important, but in the scheme of things, there were a lot more important topics and articles that I came across that I probably thought were not "legal" or "scholarly" enough  because they were not constitutional and did not cite cases.  My own perception of this Lochner article being the best thing since sliced bread was matched by my fellow articles editors who were also equally brainwashed into thinking that constitutional law was the only true law and the best sort of legal scholarship.  This "con law" bias I had has also been confirmed by at least one interview in a previous post, so it is something to beware of anyway. But the overall message is, don't let your idea of good scholarship just be focused on what you learned in law school.

2. Think about whether you really understand what the article is saying.  If you can't understand the article, it doesn't mean you are not smart enough.  It may just be that the author was not clear enough. If on second thought, you don't actually understand the article, it is probably not as good (or well-written) as you thought it was, and it probably needs to be clarified.  The best ideas--and those that end up having a lot of impact in the field are not necessarily the most complex ones.  I think articles editors may sometimes not give themselves enough credit and think that they may not have to understand every piece they are publishing.  Yes, a piece may be empirical or technical, but you should still be able to understand it.  And you should be able to explain the core idea of the article to a friend and they should be able to understand what you are saying.

3. Look into how important the topic really is.  Law prawfs may tell you that the topic they are writing about is really important; but do your own work in figuring out how important it really is.  To get a sense, you can see what else has been written on the topic by scholars, how or if courts consider the issue (for instance, how often courts do courts consider this issue? Is this "huge problem" something that plagues only 10 cases a year?),, whether the data says this is important (ie how many people/cases/countries/businesses does this impact?), or whether this is a debate in common every-day discourse.

Remember that as articles editors, you help keep law discourse at a level that most people can understand--not law professors alone but lawyers, judges and interested people.  If the topic does not seem interesting to large enough group of lawyers, judges, or average citizens, then it probably is not that relevant.

4. Final tip, think about how hard this law review article was to write. Often, I see articles that show an impressive amount of important analysis of statutes, regulations, involving FOIA requests, unique cases or empirical studies of large proportions that do not get the requisite attention they deserve with a favorable placement.  So, I would ask law review editors to think about whether this author was the first to find an important historical document and analyze it, whether the author assembled their own nationally or internationally representative dataset, whether the author scoured through mountains of case law, whether the author used unique methods like a randomized controlled trial or qualitative interviews, or whether they just read a handful of cases really closely?  A consideration of the difficulty of putting together this article is one factor that you may want to consider.  If the article was laborious to write and the database difficult to assemble (and of course if factors 1-3 are met) then this is an article that will likely be extremely important to the field.

Those are my tips.  I'm sure others have tips on good scholarship as well, so I look forward to hearing from you on other thoughts or tips for articles editors.

My next post will include two interviews with former articles editors turned superstar academics: Ed Cheng (Vanderbilt) (former Harvard Law Review articles editor) and Josh Douglas (U. Kentucky) (former George Washington Law Review articles editor).

Underneath the Law Review Submission Process: Part VI Interviews with Those who Reject Us

In this next post on the law review submission process (see intro, part I, part II on timing of submissions,part III interview, part IV interview and part V interview if you are interested in interviews with Stanford and Vanderbilt editors), I interviewed two articles editors, Joseph Ballstaedt (JGB) and Ryan Merriman (RM), and the editor-in-chief, Joe Orien (JAO) for 2012-13.

One quick note before the interview.  I was really impressed with something that the BYU Law Review articles editors did this year before giving an offer to an author.  They did citation counts for authors to see how their previous work has been received by the academy as an indication of how important their future work will be.  This isn't necessarily helpful for junior scholars who may not have had time for their work to be cited, but I think it can be helpful for more established professors who may not teach at fancy schools but have written important pieces.  And as long as this isn't the sole or primary criteria, I think this could be a good objective measure by which to judge authors and articles.

1.  If you can briefly describe how many articles you received in this winter submission cycle, when you received the most submissions (if there were any such peaks in the submission cycle) and generally how you weeded through these submissions.

JGB: We received about 1000 submissions, I believe. We received articles for about a month and half, beginning in early February and ending in late March. It seemed like the flow of article submissions was pretty steady, but did pick up some toward the end of March. At least that is my memory. We had to make quick decisions at times to find articles worth reviewing even further and many articles were quickly cut out based on being too short, not having a clear thesis or engaging introduction, addressing an strange topic (like an article promoting incest), or sometimes based on not having a great publication history. However, we often gave great consideration and even offers to young lawyers and professors if their articles impressed us after a quick read.

 RM: Assuming the other four Articles Editors reviewed roughly the same number ofsubmissions this semester as I did, we received somewhere between 900 and 1000 articles. I personally reviewed 189 between late January and about the middleof March. It seems like we were flooded with articles towards the end ofFebruary and early March. Given the sheer volume of submissions, it'simpossible to thoroughly read through each article. The only time I ever rejectan article based on the CV alone is when the author is not a law professor, butI always take a closer look at the article when the author has a strong CV.I'll read the introduction, the conclusion, and skim through the rest if it'sinteresting. My primary goal is always to pass on articles that will generatecitations to our law review. To that end, I look for articles that are not toonarrow, make a theoretical/descriptive contribution to the literature, orpropose a change to some area of the law. A concise, well-written introductionthat clearly states why the article is an important contribution always catchesmy attention. 

2. How many levels of review do you have and do you have a vote on each article? If so is it majority or supermajority vote?

JAO: We have three levels of review: an initial prescreen stage, a reading stage, and a final review. A single editor reviews each article at the prescreen. To reach the final review, each article must have been read and accepted by two articles editors. At the final review stage, I first read the article and solicit advice from faculty members. The article is then presented to all of the articles editors for discussion and a final decision. All of our decisions this year were unanimous.

3. How do you determine whether an article should be accepted for publication?  What factors are most important to you?  Article topic? Author's credibility?

JGB: It was always nice when the author addressed either a topic we were familiar with or had interest in; however, we often had to make judgments on articles addressing topics well outside our expertise. In these situations, a indication that we should make an offer or further investigate an article was how well we understood the topic after reading the article. If an author can successfully introduce me to a new topic and unique proposal within that topic, I am satisfied. To do this, he or she must clearly and simply explain the foundation (the basics) of this topic while still engaging a new aspect of this material in a clear way. If an author cannot do this, it is much more difficult to have confidence in the author's article. Great minds and writers, in my opinion, can explain complex matters in a simple way.

JAO: In my review at the last stage of the process, I focused almost exclusively on the quality of the article and tended to only look at the author's credentials in close cases where we needed to rely on the author's credibility in explaining a complex topic. In judging the quality of the articles, I focused on each article's utility (target audience, relevance of thesis, scope), strength of arguments, writing and organization, and research quality. The best articles obviously excelled in all four areas. For articles deficient in one area or another, my decision rested on whether or not the deficiency could be improved through the editing process (e.g., it's hard to improve an article with a poorly conceived thesis).

RM: In descending order, the most important factors to me are (1) the substantive quality of the article (again, does it make a novel descriptive/theoretical contribution to anarea of the law) (2) technical quality, (3) author's prestige. If I read anarticle with great ideas, polished prose, and it looks like it's already been blue booked, I always pass it on to another editor even if the author isrelatively obscure. In fact, because we lose so many articles from professors at T14 schools to other law reviews, I really make a special effort to look foryoung scholars who've written excellent articles. Additionally, I typically reject articles that seem too narrow, or seem to belong in a niche journal (technical articles on tax or patents that don't seem broad enough for a more general audience; pieces that read more like an econ/polisci/international relations piece than a traditional law review article).   

 4. Tell me about the cover letter.  What is the relative value of the cover letter as opposed to the CV?  What were the most effective cover letters you saw?

 JGB: I did not put much weight in cover letters. In fact, I only remember reading one or two. This was because we were trained not to read the cover letters and found more use in reading the introduction of the article. I would first review the CV to see whether the author was publishing successfully. Then I would consider the substance of the article, skipping the cover letter and going to the introduction--what any future reader would use to quickly assess the utility of an article.

RM: I'll be honest--After the first 20 or 30 submissions, I stopped reading cover letters. Most of them are generic and sound exactly the same. The cover letters that Ithought were effective briefly describe why the article is important in relation to prior scholarship, but an effective introduction in the article does that anyway. For that reason, I think the CV is definitely more important than the cover letter.

 5. Describe (each of you), the top two articles you saw this submission cycle and why you believed they were the best articles.

 JGB: My favorite submission was very clean. It did what every law review article does (or tries to do), but did it better and more concisely. It did not develop any tangents or speak too long on any aspect of the topic or area of law. Rather, it gave a clear introduction that told me what the article contained, gave a concise but adequate background of the law concerning this topic, and gave me a clear idea of the author's proposal and addition to this area of law. Essentially, it was your stereotypical law review article. It wasn't fancy. I would have been able to read this article as a beginner to the topic (which I was not) and also as a student of the subject interested in the author's proposal (which I was). I didn't have to read the whole article to find the useful parts because it was organized well. The author did not hide the ball or use long-winded explanations. Other authors usually spoke too long so I was grateful to this author for taking the time to slim his article up.

My next favorite article(s) was any article that did the same. In sum, any article that clearly (and sometimes creatively) made its point and made it quickly.

JAO:  My favorite two articles both had excellent writing and organization. When an article has clear organization, road maps, transitioning, topic sentences, summaries and conclusions, and signposts, it makes a world of a difference in how I perceive it. Both of the my favorite articles did this. They were easy to read, and I didn't have to re-read paragraphs several times to figure out what the author was trying to illustrate. And I don't think they were easier to read because of the subject matter (one of them, in particular, dealt with a rather complex topic).

RM: We extended an offer (that was ultimatelynot accepted) on an article that examined the relationship between tort reform and economic activity. While we are sometimes wary of pieces that involveeconometrics (because frankly we’re not qualified to evaluate complex empirical work—we’re barely qualified to evaluate traditional law review pieces), the paper used a unique data set to evaluate untested empirical claims surrounding a highly contentious, high-profile issue. Organization was clear, writing was crisp, and technical quality looked ready to publish.

The other article that really impressed me proposed a thought provoking solution to collective action problems that did not rely on the threat of sanctions or prospect of special benefits to participants. It used some game theory, but in a straight-forward, intuitive way I thought was accessible to a general audience. The author applied her theoretical insights to some areas of the law and proposed some substantive reforms. Organization and writing was easy to follow, citations were already in good shape, so even though the publication history was pretty sparse, I felt comfortable recommending it. 
 
6. What kinds of trends did you identify that we can tell law professors about.  For instance, did any authors do anything interesting this year that you wanted to pass on?

  RM:I noticed a lot of empirical pieces. Some of them were fairly sophisticated (logit/probit regressions, difference-in-difference estimation, instrumental variables) and others were more straightforward (OLS, simple cross tabs, etc.). Personally, I loved seeing so many empirical papers (full disclosure: I was anecon/polisci undergrad). However, I think in general law students feel a little skittish about accepting complex empirical papers because most have no idea how to evaluate the methodology and results. The best articles evaluated controversial, salient legal issues or challenged long-standing assumptions in the literature. They also focused mostly on presenting the results and discussing their implications and left most of the technical explanation in anappendix.  

7. How effective is it when authors are extremely communicative with you with emails and updates?  Is this nice or annoying?  Do you prefer eager authors who may tell you that they are willing to accept an offer if you give one without expediting or does that not help?

RM:I don’t think I’d communicate much before you’ve been contacted by the law review other than to let us know you’ve received an offer. Given how much we don’t know about many areas of the law, we’re always trying to look for indirect evidence that an author produces influential scholarship that will be cited—publication history, quantity/quality of citations to author’s priorwork, prior work experience indicative of expertise, and of course, offers from other journals. If you let us know that you’re willing to publish with us no matter what, that might lead use to speculate that the article isn’t important enough to generate interest from other schools. 
 
JGB: It is certainly tempting to give more weight to an author who is willing to accept an offer if we make him or her an offer. We as article editors have a lot of work to do, and we would love to have solid articles as quickly as possible. It is somewhat discouraging to know that many of the great articles that we like find offers elsewhere. I am tempted to make an offer to an author whose article might not be quite as amazing but will be accepted rather than 3 or 4 offers to authors with stronger articles but who might not accept an offer.

8.  Do you ignore articles that do not come from expedited reviews or try to balance expedited reviews from reviews of regular articles?

 JGB: I tried to give equal weight to all articles, and I read all the articles in the order that I received them generally. But as time went on, I did start to favor expedited articles in an attempt to find better articles quicker. it is certainly hard not to read an expedited article with a presumption that it will be good. We read most articles with a presumption to reject, but an expedite automatically changes that. And they are generally better anyway
 
RM: I will read expedited articles first, but they do not receive more substantive attention than other submissions. In my experience, most expedited articles that we offer end up publishing at a higher-ranked journal anyway.
 
9. Do you try to obtain a balance in article topics that you are publishing?  First year topics v. non-first year topics?  Public vs. private law?

RM: Not really. If wealready have two articles on the same topic in an issue, we might be less inclined to extend a third offer on the same subject. But generally we’re mostconcerned with filling up our publication calendar, as are most similarly situated law reviews. That probably changes as a journal’s prestige increases.
 
JGB: I didn't favor any kind of topic, at least consciously. Rather, I try to find articles that will be read and will be cited. I want to add to current legal discussion, wherever it might be. Sometimes a topic that I found very interesting was not likely to receive attention, so I didn't give it as much weight, despite my own interest in it.

JAO: I tended to favor articles with broad applicability. Although a broad thesis can quickly become unmanageable, I tried to look for foundational articles that would lend themselves easily to further discussion in academic circles. I think a thesis can be too narrow in any area, so I'm not sure how much the subject matter affected my thinking.

10.  You have a floor here to advice law professors on their articles.  What are some tips that you would give for professors to improve their articles?

 JGB: If you co-write an article with a less prominent author, it is still your work. I feel that a few great authors let co-authors use their name, and the resulting article wasn't very impressive. Also, good Bluebooking and removing simple typos can make a great difference for two reasons. 1) We don't want to get your article ready to publish--that means a lot of work for us. We want it to come ready to publish and polish it off. 2) Poor Bluebooking and editing make your article lose credibility. Maybe we as law school students put too much emphasis on Bluebooking due to the many edits we do, but it is still something that we value (unfortunately). And grammar errors and other typos just make it look unprofessional. That goes without saying.

JAO: I'm sure most professors already recognize this, but having student-edited journals (as opposed to peer-edited) means that we are frequently unfamiliar with the law underlying each article. Unless we've taken a course on the material covered in the article, we often rely on the article to explain it for us. So if the article doesn't explain, even briefly, the underlying law, we will naturally find it more difficult to understand than an article that builds the blocks necessary to understanding the analysis. In fact, as I'm sure is the case with most editors, the enjoyable part of screening articles is learning about various areas of the law. I think we will often be drawn (perhaps unconsciously) to those articles that attempt to educate the reader generally.

RM: So many factorsthat persuade me to recommend an article are out of an author’s control by the time they submit an article. Does it matter if you went to Harvard or Yale or clerked at the D.C. Circuit? It certainly doesn’t hurt. But setting those types of factors aside, the bottom line is to make the article as ready for publication as you possibly can prior to submission. So many authors see law review editors as an army of (free) research assistants. If something in your article seems like a pain to edit, we’re not particularly excited about doing it either. If an author is clearly an established expert in his/her field with an impressive CV, or if the substance of the piece is particularly compelling,we’re more willing to take on a difficult technical project. But if a young scholar with a short publication history submits a technically deficient piece, it’s harder to justify taking on the extra work.  
 
11. Feel free to add anything else that you think may be helpful.

 JGB: One of the things that I loved to see was an article in the standard (if there is a standard) law review print format. Rather than double spacing and normal formatting, an article in law review publication format looked more like a publishable article. Though this probably shouldn't matter, this format made me feel like the article was law-review bound--rather than any other double-spaced research project that we as students have written and read thousands of times.

RM: I’ll briefly echo what my colleagues have mentioned regarding the importance of laying a little groundwork before launching in to your analysis. As second and third year lawstudents, there’s a lot we don’t know about many areas of the law we’rerequired to evaluate. We rely a lot on the article to establish a foundation.The most effective pieces in my view do several things—(1) provide a briefbackground that orients me to the prior scholarship and existing legalprecedent, (2) identifies a gap/problem/misconception in that area of the law,(3) explains briefly how the article responds to the identifiedgap/problem/misconception. The best pieces lay out all three things in the introduction.

FSU Law Review announces its Exclusive Submission Window for Volume 40

Adam Kramarow, the senior articles editor at the FSU Law Review, has asked me to pass this along. (Feel free to cc me on your submissions.)

The Florida State University Law Review is now conducting exclusive spring article reviews. Any article submitted to this exclusive review between now and April 2, 2012 will be evaluated and responded to by April 9, 2012. By submitting the article during this window you agree to accept an offer for publication should one be extended. Any articles accepted through this review will be published in Volume 40, which is slated for publication in 2013.

If you have an article which you would like to submit, please e-mail an attached copy of the article and your CV and cover letter to ask05@my.fsu.edu with the subject line "Exclusive Spring Article Review." (The character after the k in Adam's email address is a zero, not an "o".) This opportunity also applies to articles you may have submitted to FSU LR earlier this season but you need to resend the piece under the appropriate subject line. If you have submitted an article for review through ExpressO, you will have to resubmit it through this process to be considered under the exclusive review process. We look forward to reading your articles.

 

The Angsting Thread (Law Review Edition, Spring 2012)

Friends, the time has come when Redyip is visible.  You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.

Incest, Surrogacy, Abstinence Education Funding, Single Parent Reproduction...or What's Wrong with the Regulation of Reproduction

Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to reproductive technologies? Should the state fund abstinence education? 

One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention - the protection of the best interests of existing children - visible in areas such as adoption, child custody, and child removal.

In Regulating Reproduction: The Problem with Best Interests, coming out shortly in the Minnesota Law Review (the penultimate draft now available on SSRN), I show why BIRC (or if you prefer, child welfare) arguments are a non-starter in justifying most regulation of reproduction, despite their dominance of the discourse. This is the first part of a larger project, and its companion paper Beyond Best Interests will appear in the Minnesota Law Review’s April 2012 issue, and should go on SSRN shortly.

What is the problem with best interests?

Drawing on insights from bioethics and the philosophy of identity (especially Derek Parfit’s work), I show why the BIRC justification, at least stated as such, is problematic both as a normative and constitutional matter: unless the state’s failure to intervene would foist upon the child a “life not worth living,” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless, I show that BIRC arguments are frequently relied upon by courts, legislatures, and scholars to justify these interventions. At a doctrinal level the Article also shows that this reliance on BIRC justifications is in tension with the implicit rejection of similar reasoning by courts unwilling to recognize wrongful life torts.

After demonstrating why the BIRC argument is unworkable as stated, I considers three possible reformulations of the argument that would save it, including one that focuses on population welfare (and non-person-affecting principles). I explain why none of these approaches is persuasive including by discussing their disturbing implications as to enhancement and eugenics.

In the companion paper, Beyond Best Interests, I consider a set of quite different substitute justifications for regulating reproduction – reproductive externalities, wronging while overall benefitting, legal moralism, and virtue ethics approaches – and evaluate their plausibility.

While Regulating Reproduction: The Problem With Best Interests is almost in print (the final version will hopefully make the diagrams a bit more readable), I still have time to work on the companion paper so I welcome any comments on- or offline.  I will also blog a bit later this month about a related paper, Rethinking Sperm-Donor Anonymity: Of Changed Selves, Nonidentity, and One-Night Stands, forthcoming in the Georgetown Law Journal, which I will post on SSRN shortly.

This project has been a long time in gestation, so I redouble my thanks to all those of you who have given me comments and invited me to present at your workshops and conferences (hopefully you are all thanked in the paper), since you have helped me improve this work immeasurably.