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Monday, May 26, 2008

An Open Letter to ExpressO: Improving Law Review Submissions through Authors' Electronic Commitment to Accept the First Offer

Paul Caron collected some recent blog posts, including mine, discussing law review submission reform.  His Cincinnati colleague Lin Bai offered an interesting solution to the circus of mass submission and expedites: As compromise between the circus and the single-submission system common in other disciplines, authors can submit to as many journals as they like, but should be expected to accept the first offer.  That would make authors more selective about submissions, because if you really want your piece to appear in one of 20 or 30 journals, you can only submit to those journals.  It would also motivate journals to read such pieces, because they would know that they actually had a chance to publish all pieces submitted under this system.   Al Brophy commented on Lin's post that journals are unlikely to agree to such a policy.  But I wonder if it could be done through the action of authors, not journals, via ExpressO.

I assume it would be technically simple to add to the ExpressO submission system an option committing the author to accept the first offer.  This information would be sent with the article and cover letter to the journals.   Journals, in turn, could accept such a piece on line, and all the other journals informed that it was no longer available.  Perhaps the journals would also be told the number of other journals to which a particular paper had been submitted; if five, they would pay more attention than if fifty.

One of ExpressO's advantages is the many journals using its service, so ExpressO would not want to do anything that would drive off law reviews.  But it is hard to see why journals would  object to being told that the authors of particular pieces will accept the first offer.  Journals would not have to prioritize review of such pieces.  They might appreciate not having to waste time reviewing articles they have no chance of getting--as they do now under the current system when a higher ranked journal has made an offer on a piece, and the author has not had the courtesy to withdraw it from venues no longer in play. 

ExpressO might also be disinclined to do it for financial reasons.  It probably loves mass submission to scores of journals the author is using as expedite fodder, because it charges per journal submission.   But if communicating this information were advantageous to the authors, who of course pay the fees, ExpressO might be willing to offer this additional service for an additional flat fee or for a higher per-journal charge.

How would this play out for authors?  Of course, ExpressO is not blind, and therefore while this system is certain to save some work, it would continue to advantage "name" authors.   But elite authors can, and do, play this game with journals now.   If an article comes in on the letterhead of a top school, I'll bet it gets read, and if the letter contains a commitment to accept the first offer, I'll bet it gets taken into account.  If a cover letter from an author from a  low-ranked school says they will take the first offer, I'll bet most journals will  not read the cover letter to learn about the offer.   In addition, the really elite journals are unlikely to put a submission from the legal-research-and-writing person from Wyoming (see fn. 4) at the top of the pile, even at the risk of losing it.  So this system does not eliminate the advantages of elite law profs, or the difficulty of placing articles in elite journals.  But it might increase the chance of getting read at some great journals just outside the very top ones.

The Duke Law Journal did this a few years back.   Authors could submit to Duke and four other journals, and Duke committed to getting back to you quickly, on condition that you accept the first offer.  I don't know why they stopped.  (Please comment if you know).   Perhaps there was some kind of cheating, they accepted papers weaker than those selected through the regular process, or too few authors did it to make it worthwhile.    None of those things suggests that a broad-based, transparent process run through ExpressO is doomed to failure.

Posted by Marc Miller on May 26, 2008 at 07:13 PM in Life of Law Schools | Permalink


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I'm not a big fan of the current system (in fact, I've made it the object of satire, (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=796264, but a system in which authors can only submit to a limited number of journals presents a severe disadvantage to junior authors and those at lower-ranked schools.

The entire "trading up" system works because higher-ranked schools use other offers as a filter. Without that bargaining chip/promise of the article being high quality, it's going to be awfully difficult for a professor at a lower ranked school to get their work read.

Reforms of the law review system should focus on improving merit; this change works at cross-purposes to that.

(Besides, Espresso has no financial incentives to reduce the number of journals, in fact exactly the opposite, but I leave economic rationality aside for the moment)

Posted by: Miriam A. Cherry | May 28, 2008 4:07:47 PM

Just curious, but...

Can anyone name 5 strengths of the current system? 3?

I'm not asking for a thorough comparison with other academic specialties. But for the life of me, I can't really identify any very good reasons that law reviews/journals operate the way they do.

I confess, I'm in law school. I further confess: I didn't "try out" for LR. I'm too free-spirited, and LR = too much slavish drudgery for me. But I'm a research assistant, and I'm in the upper percentages of my class (read: I'm not dumb, or incompetent). Candidly, I wouldn't trust 75% of the people from my class who made LR with anything I've written. Ever. And these people are the gatekeepers for your scholarship? And you find that satisfactory?

Yes, yes, there are probably plenty of scary smart people on LR, people who can put together a sentence without breaking out into a sweat, etc. But there are many mediocre students who struggle with their own writing on LR, also. Maybe they're good at Bluebook drudgery. I don't know. But it's incredibly odd that people who consider themselves serious scholars consent to have their work examined by students in this fashion. And no, I don't buy the canard about judging the merits of an argument, etc. Remember, these are people I've studied with. I love them as people, but as those who would pass judgment (intellectual or otherwise) on serious scholarship, not so much.

Actually, not at all.

Posted by: Skepticalistical | May 28, 2008 3:24:57 PM

A variation on this idea: Limit submissions to no more than ten journals, with the agreement that the author must accept one of the ten if any make an offer. Put a time limit (say, three weeks to a month) on this cycle, after which time the author can submit to another ten if no acceptance is forthcoming. But the journals know they have a reasonable time certain with which to review, are spared the annoyance of expedite review, and know that the author is interested in publishing with them and will give an answer at a time certain. Meanwhile, the authors know that the journals have a decent amount of time to review their work, and that the journals are receiving fewer submissions -- besides the top five journal, which might be included in every author's first choice of ten (but which only puts them in the same position that they are now anyway). Plus, this takes away the onus on the author of accepting the very first offer she receives.

The advent of Expresso, as Jack makes clear, makes this possible, since now there's an institution capable of fairly serving a refereeing function. In exchange, Expresso can charge more per submission, so that they're not losing any revenue in the process of having fewer submissions to deliver.

To me, the "submit to everyone" approach, which is rational in the current system for authors without a sexy letterhead who must ride a wave of expedites to get read by top 15 journals, is one of the most foolish aspects of the current system, both for journals and authors.

Posted by: Mark Fenster | May 27, 2008 4:40:21 PM

I attempted to use the Duke "fast track" system when it was purportedly in effect some years ago. Per the announced policy, I submitted my piece to the Duke Law Journal and only five other journals, relying upon (and invoking in my cover letter) the promise of a response within 20 days. I received an acknowledgement, but after that I heard nothing, despite my inquiries. After 30 days I sent the piece to other journals -- but by then I had missed the prime submission window in early March.

Lesson: Submissions reforms are a good idea, but it is unrealistic to depend on law review editors to carry them out. (I teach at a top twenty school, so I don't think my stationery was the cause of their disregard.)

Happy ending: The piece was accepted and published by a more highly ranked law review.

Posted by: LawProf | May 27, 2008 12:02:30 PM

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