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Wednesday, March 18, 2009
"Outside" Information in the Law Review Submission Process
Yesterday the NYT reported on the growing use of PDAs and the Internet by jurors in the midst of trial and deliberations. Although sometimes the problem is information flowing out from the jury, in many cases the jurors are trying to do their own investigation beyond the parameters of the court. This thirst for outside information seems natural:
Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as a juror’s pocket, the risk has grown more immediate — and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.
Mr. Keene said jurors might think they were helping, not hurting, by digging deeper. “There are people who feel they can’t serve justice if they don’t find the answers to certain questions,” he said.
Law reviews now have access to a lot more information about the articles submitted for consideration, for reasons similar to the juror phenomenon. The Internet has made authors' biographical details easy to find, and has made this information much "thicker" in terms of resumes, SSRN drafts, news stories, and blogging. (Think back to the biographical information available in, say, 1992, or even 2002.) Given that ExpressO encourages the submissions of CVs along with articles, it would seem that law review editors are interested in this outside information and are making use of it.
However, there is something about this natural investigative urge that cuts against the Platonic ideal of the submission process. In the best possible world, the argument goes, the law review would simply consider the article itself and would make the review process anonymous to exclude all outside "noise." That way, any biases based on the author's past work, institutional home, or political ideology would be excluded from the process. The article itself would rise or fall based purely on its own merits.
I posted yesterday about the new input law reviews are seeking from their own faculty or even outside faculty as part of the submission process. Most folks seem comfortable with faculty involvement, on the theory that more information is better and that professors can provide helpful guidance to students. But law reviews are moving to this new model sporadically, and without much uniformity in terms of input or transparency. Perhaps profs and law reviews could work to develop some sort of "best practices" for outside input as we move away from the "article and article alone" model. And before we move away from it, are there aspects to the "article and article alone" model that we might want to keep?
Posted by Matt Bodie on March 18, 2009 at 03:37 PM in Life of Law Schools | Permalink
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I can also confirm my journal has a firm rule against publishing current students. Our position is that our Notes section is the place for current students to publish, and that section is reserved for members of the Law Review.
That said, I will usually skim a CV when reviewing a submission, but it is typically the article that decides whether I send something to full committee or vote for the article once there.
Posted by: Sean M. | Mar 25, 2009 8:57:57 AM
I can confirm that at the top-20 law review where I was formerly an editor we had a firm rule against student publication. The reason was that we simply did not have procedures in place to deal with protecting the submissions process from bias or corruption with respect to student authors. We felt it would be unseemly to publish an article written by a student at our own school given the possibility for manipulation or preferential treatment, and it seemed unfair to students at our school to reject their work while allowing people at other schools to submit. You might disagree with this policy, but it was not adopted because we had some idea that student scholarship was inherently less good. It was just where we drew the line for the sake of having a clear and manageable standard.
Posted by: Anon | Mar 20, 2009 4:55:50 PM
Maybe some of the editors' zealousness can be explained by official policy (i.e., a policy of not publishing student-authored pieces)? Of course, the academic efficacy of these policies could be questioned, but at least it would explain the motivation of some journal editors....
Posted by: anon | Mar 20, 2009 12:13:28 AM
Those are thoughtful comments. In thinking more about my concerns, what bothers me about editors' use of blogs is that a handful of friends discussing an article does not amount to "buzz" or "importance," but it's all too easy for back-and-forth discussion on blogs to look more broadly representative to those who otherwise simply don't have the time or resources to be following the state of scholarship. A group of six professors who spend their time online commenting publicly on one another's drafts is nothing more than a casual workshop. It doesn't mean an article is important or ready to be published, but I've talked to students who explicitly think it does.
Posted by: prof | Mar 19, 2009 7:45:09 PM
I am an out-going articles editor, and found it immensely frustrating to work with fellow editors who always began a review of an article with the author's credentials. My question always was, is it good? Is it interesting? Is it taking us places?
That said, I did use SSRN and blogs. More to learn about the state of legal scholarship in a given area. Whether a particular author had several downloads or was "pimped out" on a blog was not all that important in regards to whether I thought an article was well-written or interesting. But I did find it impossible to place the article in "scholarship" context, and just as faculty know the "state of affairs," I thought it necessary to at least inform myself of the same--at what I hoped was only a benefit to the (highly imperfect) selection process. Thus, I would pause before outright calling such attempts unprofessional.
My own frustrations mentioned above belie the moral hazard that lies within such use of public information.
Posted by: Anon | Mar 19, 2009 5:19:45 PM
If you really want to see a shocking display of just how much law reviews rely these days on credentials rather than article quality, try submitting a piece to outside reviews while still a student, as I tried a few times (with mixed success). I took care to make sure nothing in the articles indicated I was a student, which also means I didn't attach a CV -- but within just a few hours of submitting the piece, I'd have a couple dozen responses flow in from various journals saying that they don't consider submissions from students. The clear implication is that for a great number of these journals, the *very first thing* they're doing when they get an article in is googling the author's name to check out their credentials. The idea that publication decisions for new submissions are being based primarily on whether an author has a record of past scholarship, rather than on the merits of what they're submitted now, is to my mind a very scary thought, and one that does not bode well for the future of the legal academy.
For an even more extreme example, I had an article that was faring very well in the admissions process and which I'm told was scheduled for a full committee vote at a top-20 law review. The night before the committee meeting, I got a frantic message from one of their articles editors looking to confirm whether I officially had my J.D. at the moment -- apparently they had resisted the urge to google my name for a while, but eventually somebody decided to run a search to help them make a final decision on my article. At the time I was two months away from law school graduation and explained that I'd have the official J.D. by the time the article would be published (indeed, before editing would even begin), but not at that moment -- and the committee immediately canceled its vote and axed the piece, even though judged by merit alone the article had apparently impressed them enough to to make it up for a final vote at a pretty exclusive journal. And lest that seem like an unusual occurrence, less than a week later the EXACT same thing happened again with another journal (this one up there in the top 40 or 50): I was contacted by the head of the articles committee saying they loved the piece and wanted me to send along a CV so they could schedule the article for a final vote; after I sent the CV, they came right back and told me they'd have to remove the piece from consideration. Needless to say, it was a bit of a maddening process.
My suspicion based on those experiences was that an author's identity and their past publication placement has played a MUCH larger role in recent years than any of us usually realize. After all, in the vast majority of cases, all an author will ever know is that their submission was accepted or rejected, without knowing whether outside information played a role at all. But having observed one of the special situations where the reliance on outside information was readily apparent, I was shocked to see how much it dominated the journals' decision-making process.
Posted by: Anon | Mar 19, 2009 6:05:08 AM
I've encountered student editors who openly admit to using SSRN stats and blogging promotion to help them select articles. This strikes me as shockingly unprofessional and bad for the academy in that it encourages self-marketing and biases students' views about which law professors are "significant" and which are not. It also biases selection toward men, I believe, for men are more inclined to blog and market themselves aggressively.
It admittedly isn't practical to adopt completely blind review, but editors should at least try to resist the more aggressive self-marketing tactics of professors. There is a huge difference between those who are popular on blogs and those who are producing high-quality legal scholarship. Students today seem all too prone to confuse the two.
Posted by: prof | Mar 19, 2009 12:02:25 AM
I think Expresso's choice of information that can be submitted along with an article creates a pretty strong norm: cover letter is fair game (with all important letterhead), as is CV. And I think most people go ahead and include these files. In a perfect world, the articles would rise and fall on their merits, but I don't see there being a lot of inconsistency in what information is available to articles eds--if anything, expresso probably aids rather than inhibits consistency (exclusive of the faculty involvement point, obv.).
And I know for a fact that the CVs are at least sometimes read. I recently had a discussion with a very nice student at a journal when he called with an offer to publish my article, and after discussing the article, he asked lots of questions about my experience with different law jobs in DC that clearly came from a perusal of my CV--which I was totally fine with, of course.
Posted by: Dave | Mar 18, 2009 7:26:11 PM
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