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Wednesday, August 25, 2010

Are Word Limits for Suckers? (Guest post by Mark Fenster (U-Fla))

You may recall the big deal that was made some years ago (I believe it was 2005) when top journals declared a moratorium on the behemoth law review article. It was supposed to allow for more and more readable articles to be published -- a real boon, ultimately, for scholarship and a relief both for readers and authors. The Yale Law Journal still has in its guidelines the following:

The Journal is committed to publishing work that is not only original, provocative, and persuasive, but also concise. Recently, the Journal joined with eleven other leading law journals in affirming our commitment to this goal.  The Journal strongly encourages submissions of fewer than 30,000 words (roughly 60 Journal pages) and strongly discourages submissions of more than 35,000 words (roughly 70 Journal pages). Authors’ ability to state their arguments in concise terms is a factor in our consideration of manuscripts. The Journal may be unable to respond to authors submitting lengthy manuscripts in a timely fashion.

How's that working out?, you might ask. Consider the three articles published in the two most recent issues of the YLJ (Vol. 119, Nos. 7 & 8):

Jerry L. Mashaw, Federal administration and administrative law in the Gilded Age. 119 Yale L.J. 1362-1472 (2010).
 James Gray Pope, Contract, race, and freedom of labor in the constitutional law of involuntary servitude." 119 Yale L.J. 1474-1567 (2010).
 Abbe R. Gluck, The states as laboratories of statutory interpretation: Methodological consensus and the new modified textualism, 119 Yale L.J. 1750-1862 (2010).

Jerry Mashaw's article is the fourth in a series on the history of administrative law and administration, all of the individual pieces of which are quite brilliant and significant. I will assume that the other two articles, which I haven't yet read, are equally brilliant. But look at their length: 110 pp., 93 pp., and 112 pp. And note that all of the previous articles in Mashaw's series are approximately the same length (it looks like the shortest was over 85 pp.), and all were published since 2006. This is not an anomaly of the current volume's two final issues. An unscientific survey of YLJ's volume 119 reveals that of the 12 articles published (an average of 1.5 per issue), a whopping total of 2 came in under 70 journal pages. I realize and appreciate that YLJ has been a pioneer in adding different formats for writing, but for many tenure processes (including the one at my own school), the coin of the realm is articles, not essays, features, responses, online feature essays, etc.

I am not especially exorcised about the length of these articles, assuming that the work is brilliant and the articles' length to be essential to their argument -- and they must certainly be so, since YLJ published them! If YLJ or another journal wants to publish high-quality behemoths, well then by golly they ought to. But I have two issues with this practice, one rule-of-law like, the other administrative. If you want to publish behemoths, then don't have guidelines that "strongly discourage[]" submitting behemoths. That certainly seems like an easy call, even if it means conceding that new standards only last as long as the last editorial board's tenure. And in my role as an associate dean (talk about being a sucker!), I am frequently asked by worried junior colleagues about the law review submission process. My answers are already long and filled with apologies, sad faces, sarcastic laughter, head scratching, and the shrugging of shoulders. In my administrative role, I am asked to speak for and, implicitly, defend a set of institutions and practices that too frequently seems irrational, random, and -- dare we say it -- sometimes fixed. This is merely another frustrating data point that makes a sucky process seem suckier. Either follow the standards or get rid of them.

Posted by Administrators on August 25, 2010 at 08:45 PM in Life of Law Schools | Permalink


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its beautiful article. Interesting to read. Good job.

Posted by: Kerry | Oct 17, 2018 5:38:02 AM

I had avoided James Grimmelmann's hypothesis about article-growth during the editing process for no especially good reason, although I was formulating a response in my head. XKCD's comment, which sounds like it comes from an anonymous inside source (exciting!), suggests that the hypothesis may be correct. While this may address the fairness issue, it raises another, separate one, and one that I actually think is more significant.

As I recall, there were two reasons why law reviews began to impose word limits: 1. because articles had become too long and verbose -- if you really need that many words, then you probably should be writing multiple articles -- and that hurts readers; and 2. because shorter articles would allow each issue, and therefore each volume, to publish more articles -- and that will make the process more inclusive and provide more opportunities for authors. Rationale #1 is less controversial and the one more widely given; indeed, making articles more "concise" remains the main reason given on the YLJ site for word limits. Rationale #2 may well have been a reason that I and like-minded juniorish people at schools outside the tippy top liked more at the time, under the assumption that the policy would have good consequences (more chances for a great placement!).

If those were the stated reasons, then it shouldn't matter whether it's the authors or editors are to blame. Assuming XKCD's claim is correct, the result is the same. One might call a 100 page law review article many things -- brilliant, comprehensive, insightful, etc. One cannot by any stretch call it "concise," except perhaps in a relative sense (ie, it is concise compared to a monograph). Because we're not talking a little bit of incremental growth in issues 7 and 8 -- all three of these articles are at least 30% higher than the stated limits in the guidelines. In other words, even if the reality is that word limits are not for suckers, the rationales for imposing word limits have now long been forgotten and are not pursued at all.

As you can tell, contrary to how I blogged the issue, because I was focusing there on the fairness issue and trying to make some quick (and admittedly cheap) points, I actually think the word limits policy is a good one. I am disappointed that, besides all the jazzy new formats (which frankly are beside the point, as I suggested in my post), Vol. 109 looks pretty similar to the pre-word limit volumes in the 1990s and early 2000s. (And, Dave, this is as far as I wish to go on this as my junior ass dean position doesn't afford me any extra RAs to pursue a more authoritative take on what's kind of a minor issue.) My concern is in part self-serving (who wouldn't want to increase the chances of a great placement?), but I think YLJ should publish more than 1.5 articles per issue, because it would distribute the capital that YLJ creates through publication more broadly.

In short, I find the original rationales persuasive. More concise articles would be more readable and make legal academic articles look more like those in related fields. More articles in top journals spreads the wealth. It may also deflate the value of such placements, which would be a good thing -- especially in a world where blind review and informal peer review are the exception, not the norm, and journals scandalously publish the work of their own faculty. The latter practice is such an unbelievably obvious conflict of interest, and one that is the deserved object of scorn by those outside the field, that it deserves its own blog post, but I'll be damned if I'm going to write it. I'm hoping someone's already written it and I just missed it.

Posted by: Mark Fenster | Aug 26, 2010 10:26:42 PM

No, Ani, I am not against word limits. I believe they force authors to make difficult choices that result in cleaner prose.

I am against changing the student-edited law review system.

I also had a slow day at work.

Posted by: John Nelson | Aug 26, 2010 9:40:50 PM

Note to Mark: I probably wouldn't have suggested that you use your associate deanly powers had I realized that you (and not markel) were the author of the post. Though if you wanted to use those powers in the service of data collection, I'm all for it!

Posted by: dave hoffman | Aug 26, 2010 7:04:57 PM

Doesn't this seem like the kind of topic that could use some more time-trend data? I suggest someone use their associate-deany powers to enlist some RAs to do some data collection. I bet the word limit enterprise succeeded at its primary goal, which was to reduce overall article length, and not to eliminate the occasional, hard to resist, behemoth.

Posted by: dave hoffman | Aug 26, 2010 6:55:46 PM

Mr. Nelson: Going to go out on a limb here and suppose you to be against word limits.

Posted by: Ani | Aug 26, 2010 5:57:27 PM

I sincerely doubt you or anyone has attempted to examine whether the majority of legal articles are dogs. I also sincerely doubt that the mean level of academic scholarship has decreased. Even measuring such a thing is problematic because the statement presumes the nature of legal scholarship has remained static.

It has not. Compare early law review articles, even the famous Right to Privacy, with articles in the 1920s, '30s, and 40s. Then compare those with articles in the '60s and '70s. Then compare those articles to ones in the '90s and '00s.

Emphasis in legal writing has shifted over time. For example, Prosser's seminal article "Privacy" would probably have a hard time getting published in the same law review in this day and age. There is debate over the type of articles that are "worthy" of the label "scholarly."

Declaiming the majority of articles as dogs is indicative of the myopic view many who argue against student-edited reviews have on the subject. They tend to come from law school traditions that provide a greater pedigree claim than others, did not necessarily fully engage in the law review process (by either being a bit-player on their journal, or not a member of a journal at all), have experiences in other academic fields that color their view of student-review, or come from a system abroad that does not have a tradition of student-review.

Let me address points above directly. Business schools do not necessarily address collaborative team work successfully. Even when they do, it is not necessarily the case that because team work can be exercised in one area (say class) then it should be abandoned in another (extra curricular activities, such as law review). The ability to create teamwork exercises in class settings (which many schools do provide) is no argument AGAINST student-edited law reviews.

As for the value-add, this varies greatly for each law review. As I've stated earlier, I worked on a topical journal at a tier 3 school. Perhaps Managing Board was fortunate enough to work on a main law review at a top-tier school. I do not know the commenter's background, but I do know our experiences differ greatly.

As a topical journal at a tier 3 school we necessarily provided value-added editing. The reason is that we did not have the benefit of hundreds of articles to choose from. Rather, we had a much smaller number of articles we had to find ways to make work.

This creates the option of either publishing what you get and potentially being embarrassed or publishing something you edit into a quality article. Most students, those editors some academics appear to malign, tend to edit the work to where it's quality improves.

And let's not even discuss the need for proper citation checking. I am not certain why authors do not blush at some of the citations they provide. Not only do they rarely bear any semblance to Bluebook standards, it's amazing how often they do not support the statement being cited.

As for the ease of publication leading to more publication demands, this is also not an argument against student-edited law reviews. Rather, it is an indictment of one of two things: either Deans and law schools have unreasonable expectations of the amount of publishable work professors can produce, or professors who complain about this have unreasonable expectations of the work necessary to become and remain a law professor.

This is not a problem with student-edited law reviews.

I've touched on the quality topic multiple times. Let me directly address it this way: how many is a rational number of law reviews? Who determines this number? Can this number increase or decrease?

The implicit problems with the logic of the argument should appear immediately as you consider answers to these questions. These problems exist because, ultimately, the quality of legal scholarship cannot be blamed, either positively or negatively, on whether a journal is peer-reviewed or student-edited.

There are enough peer-reviewed law reviews that, if a legal scholar truly wishes, he can aspire to having his peer's slap him on the back and congratulate him on his excellent article (or reject the article for not being up-to-par). For example, see the list here: http://www.lexisnexis.com/lawschool/prodev/lawreview/non-student.htm

Forgive my passion for student-edited law reviews. I will admit I am biased. I enjoyed my time on law review tremendously. I believe my experiences have improved my writing, allowed me to gain confidence and experience in a group setting, and opened up my interests in legal academics as a whole.

I have also experienced peer-reviewed works through my undergraduate degree and the LLM I received in the U.K. The quality of articles was not greater as far as I could tell. In fact, peer-reviewed works in the history field left me underwhelmed.

Worse, I helped teach students who simply didn't have the opportunity to engage in scholarly debate on legal theory as allowed through the U.S.'s law review system. These students were as capable as any of doing the work, but they simply didn't have the opportunity.

I strongly believe in the student-edited tradition. I have never seen a compelling argument against it. There will always be good and bad articles in a student-edited law review. Similarly, there will always be good and bad articles in a peer-reviewed journal.

Posted by: John Nelson | Aug 26, 2010 4:37:44 PM

You are confusing the length of the articles when ultimately published with the length of the articles when accepted. Articles grow during the editing process. In the current volume, Yale has only accepted two articles that were over 35,000 words when submitted, and one of those was only barely over. Editors do hold unnecessary length against a piece, but as you indicated sometimes the extra material justifies itself.

Posted by: XKCD | Aug 26, 2010 4:25:34 PM

Maybe law school could provide the collaboration and leadership experiences law review provides in some other format. They seem to do this in business schools without every business school having to pump out student-edited business journals.

Law review editing largely consists of shoehorning the delivered prose into the dictates of style guides that are themselves student-originated. If there is a "value-add," I don't know where it is.

The ease of publication means that deans and committees have no trouble ramping up the pressure to publish. After all, there is a law review somewhere that will publish anything. You have no excuse for not publishing an article every year. So you write something and put it out there. It's just churn moved from the firm to the campus.

As a result, the mean quality of legal scholarship suffers and scholars themselves have little reason to improve, since they keep getting published. I would say, frankly, that most of the articles published are dogs. If there were a rational number of journals and they were peer-edited, no one would even bother writing them.

Unfortunately, law review is so well-entrenched in the structure of legal academia that it's unlikely to go anywhere.

Posted by: Managing Board | Aug 26, 2010 3:22:20 PM

I do not believe student-run journals are the problem. Peer-reviewed journals have shown themselves to be just as political, just as based on lobbying, as non-peer-reviewed.

More importantly, moving away from a student-run system of journals limits opportunities for all involved. Students take away a tremendous amount of experience while working on journals. Editing experience is an important aspect of this, but it is not the only one. Working on teams, collaborative editing and writing projects, and discussing the merits of various legal theories are also important. Further, networking opportunities and exposure to a number of ideas beyond the typical course/casebook set helps broaden students' horizons.

But legal academics will lose advantages almost as important as those received by students. The most obvious would be a reduction in publication opportunities. Legal academics often joke about the ease of publication compared to other academic areas, but that does not mean the quantity and variety of published work is value-less.

There are over 200+ law reviews and journals. Almost all publish at least two issues each year. Some publish three or more. This provides a vibrancy to legal academics I do not believe you can find in any other scholarly area.

Is every published thing a great work? No. There are some dogs out there. This includes poorly written works rife with errors as well as well-written works rife with uselessness. Nevertheless, there are as many or more valuable works out there.

Legal academics might put their nose in the air over ideas of 'quality' works and the desire to be even more exclusionary, but this great variety benefits lawyers and law students alike. It also benefits legal academics who have a wonderful body of prior work to refer to when writing a new article.

But it's not just about the opportunity to publish. Professors must work with student editors as they polish an article for publication. This is a benefit for both students and professors, even if it is not always recognized as such. Even the minimal back-and-forth required to get an article published forces student editors and professors to work together. In some cases, with some articles, that back and forth helps develop the paper into even better work and enriches the professor and student.

No, the problem is not lack of a peer-reviewed system of law reviews and journals. This presumes the legal academy can be easily analogized with other academic areas. Such a presumption, I believe, is far from being widely accepted or examined.

Instead, the problem is more likely with the tenure process. The process at some schools may borrow too heavily from academic areas that are not similar to legal academics. Further, the tenure process at some schools may not take into account the peculiar and unique aspects of legal academics as opposed to other academic areas.

I do not know, honestly. I have only heard anecdotal discussions of tenure in different academic areas, including the law. I have not been up for tenure (much less a professor). Similarly, I have never been involved with a tenure decision.

I do believe, however, that this leads back to Mr. Grimmelmann's ideal -- and ideal I share, and I am sure many others do. This ideal being that the quality of a written work, be it article or essay or whatever, be valued in its own right and not based on whether Yale Law Journal published it or the Western New England Law Review.

Even so, I understand while this ideal most likely cannot be obtained (at least in many cases). Nonetheless, aspiring to such an ideal is important because it creates an attitude and culture of vetting the tenure process as best as can be done.

Posted by: John Nelson | Aug 26, 2010 2:30:35 PM

What is truly ridiculous about this entire process, as it relates to tenure, is that it is not peer-reviewed, but rather reviewed by a bunch of students. This would be simply laughable in every other field, whether liberal arts or professional. Can you imagine if NEJM was run by med students?

Posted by: Dena S Davis | Aug 26, 2010 1:56:20 PM

In the spirit of Don Draper, you should submit an article, then retract it because the journal did not follow its own rules.

Posted by: Managing Board | Aug 26, 2010 11:52:04 AM

What distinguishes an article from an essay is the front cover of the journal's issue. If the piece is under the Articles heading then it is an article; if it is under the Essay heading then it is an essay.

People looking to place articles for tenure purposes should be active in negotiating their work's placement in the journal. Make sure it is in the article section if that is important to you. If editors balk at the idea, but the reputation of the journal is significant, consider letting it be in the Essay section (or some other section).

It's a ridiculous system all around. The best use of scholarly work is the quality of the pieces themselves. That should be the measure. Mr. Grimmelmann appears to desire this. I believe most academics share his ideal. (I do, too.)

Nevertheless, article quality is hard to measure. Firstly, reading each article written by a tenure candidate would be daunting for a committee. Let's just assume a low-ball number of five 20-page law review articles. Assuming at least 10-minutes for reading each page for comprehension (I.e., really 'grokking' the work), you're looking at 200 minutes for each article. That 1000 minutes, or 16 hours and 40 minutes of reading.

This is not insignificant. This becomes more significant when you factor in the potential for more scholarly work to be reviewed, longer articles, varying reading styles and speeds, and the tendency for these hours to pass by slowly, be interrupted and therefore have efficiency losses, and require comprehension of subjects the reader may, quite frankly, find entirely uninteresting.

Secondly, quality of a written work is subjective and therefore hard to measure. One person's favorite work, one they consider to be brilliant and groundbreaking, might be another's least-favorite work that they consider to be dull, derivative, and redundant.

So labels are used as proxies. A placement in Harvard's law review is viewed more favorably than a replacement in Cumberland's. A placement in a general law review is viewed more favorably than that in a topical. (The rationale, as far as I can understand, is that many topical reviews are staffed by law review rejects.) You also have labels such as Article vs. Essay, Essay vs. Symposium, et cetera.

Making sausage is not a pretty process. The more I learn about the tenure process (and, truthfully, any career advancement process), the more it looks like making sausage.

As for publication choices by law reviews, that is another inequitable mess altogether. As a recent law journal member, I am not surprised to find word limits not strictly enforced (despite claims they will be). As a recent submitter of scholarly work, I ignored the requirements. (Although my works have typically come under them, so it was moot anyhow.)

It is true, however, that many longer works by legal academics are not long as much because they must be, but rather because of inelegant and overly verbose prose. Each article at the journal where I was a member ended up being trimmed during the editing process. Some significantly so. Yes, we tended to get work product that required more editing (topical journal, third-tier law school), but the groans of overly verbose and needlessly redundant prose were echoed to me by friends on law reviews with greater reputations.

Even so, law review staff choices are rarely based on quality. The decision process for the journal I worked at, and for many others I have heard, comes down to two things: (1) the author's reputation, and (2) the timeliness of the work.

How many works on Fourth Amendment issues were published during the Bush administration? How many works on taxation and commerce clause powers will be published during Obama's administration? Other news-related issues have also shown spiked interest by law reviews. (One area I've written in, border searches, has seen this go up and down with play the issue has gotten in the news.)

Author reputation is probably the greatest reason, however. This can be based on many things -- the school at which the author works, the law firm, previous publications (who wouldn't publish anything by Chemerinsky or Posner, for example?), and (occasionally) lobbying by local faculty.

Mr. Fenster probably hates this reality. He has to explain to new professors that the process isn't always fair. I hate it too. Few to none of you have likely read my work, or even know who I am, so I (like many non-professors like me, and new professors as well) will always lose on reputation.

Which means all I can do is write pieces that try and be timely, are well-written, and hopefully pique the interest of a law review articles editor. Hopefully, over time, the quality and quantity of my work will allow me to build a reputation (or, at the least, look impressive on my CV as sent to a law review editor).

There were times in law school I fumed about how it was not often a meritocracy. My experiences in disappointment during law school prepared me for the truth, however. Life isn't a meritocracy. You have to work hard, produce good work, but the people who achieve the most also tend to be good at hustling a bit here and selling themselves a bit there.

Like making sausage, it isn't always pretty. Even so, if you do it right, and put in some good ingredients, that sausage can sure taste great.

Posted by: John Nelson | Aug 26, 2010 10:42:01 AM

I think the submission process itself might be "for suckers." There's a lot of gaming of this system. That's hardly surprising, of course, given the weight accorded to placement. But if you submit through the "regular" process and leave it at that, you should be aware that others are working the phones, calling on colleagues at other schools to serve as intermediaries with their law reviews, using offers from their home journals to begin the expedite process, and otherwise looking for some angle that will circumvent the process.

Posted by: a sucker | Aug 26, 2010 8:57:21 AM

This is fascinating. What, for example, distinguishes an "article" from an "essay?" Thanks to the page-limit shuffle, many recent "articles" are shorter than many "essays" from the early 2000s. Symposia vary wildly, too--I've seen 1-page and 100-page symposium pieces. I don't doubt that there is a preference for standard forms of legal scholarship--as well there may need to be, just to keep us all actually talking to each other. But how that preference maps onto the actually extant genres is far from clear.

Posted by: James Grimmelmann | Aug 25, 2010 10:26:02 PM

JG: This begins to veer off-topic, but just to explain: on my faculty, a tenure file may include different types of scholarship, but many colleagues give the most weight to what is seen as "traditional legal scholarship," which is to say articles submitted in the regular process (such as it is) to law reviews. It's a somewhat strange analog to the peer-review journal requirement in other disciplines. Symposia, review essays, articles in journals in other disciplines, etc., may be acceptable but will not count in the same way that a traditional law review article does. How the (apparently just alleged!) shorter article limits would play out in tenure decisions hasn't been at issue here since it was (allegedly!) instituted.

As you can tell from my tone, I don't quite see the point in this fetish of the article, since nothing in law reviews -- articles, essays, yadda -- is formally and blindly peer reviewed anyway. So if someone writes a brilliant essay or, for that matter, a brilliant book, and it receives great external reviews, then so long as some quantitative standard is met the tenure decision should be the same as if they produced articles. Function over form, and all that. And I'm more than happy to make an argument to that effect as a faculty member. But as an administrator assigned to mentor junior faculty, I will advise my untenured colleagues to meet the expectations for producing articles before they begin to produce other forms of scholarship. There's certainly something to be said for the genre of law review articles -- it serves certain purposes and topics quite well -- but as anyone who has waded through the median article in even our "top" journals could attest, many if not most published articles would work better either as essays or in slimmer, tighter versions.

It would of course be interesting to know how other schools view the article v. non-article issue in tenure decisions. But that's absolutely another topic, and dammit I'm not blogging right now.

Posted by: Mark Fenster | Aug 25, 2010 10:09:47 PM

Same goes for word limits for "Calls for Papers." Yes - I am looking at you AALS.

Posted by: Anon | Aug 25, 2010 9:18:17 PM

Two thoughts. First, it would be interesting to know how many extra-long articles were that way when they were submitted. It's quite possible that some of them came in at or under the suggested length, but then expanded either because the author held back material for later reinsertion, or because the editors requested additions.

Second, can you say more about the sense in which "the coin of the [tenure process] realm is articles" and how that connects to law reviews' word-length limits? It would seem there's a natural incentive to produce two 25,000-word "articles" rather than one 50,000-word "article." I'm also wondering how the word-length debates are linked to academics' use of journal prestige as a proxy for article quality. That's unfortunate under normal circumstances, but in the tenure process it's especially worrisome.

Posted by: James Grimmelmann | Aug 25, 2010 9:12:25 PM

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