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Tuesday, August 10, 2010

The Ethics of Expediting

I was having a conversation with my colleagues recently about how the ease of submitting law review articles through ExpressO has affected the law review submission process.  Gone are the arduous days of mailing out paper copies with individual cover letters; now it is a simple matter.  Select publications!  Upload files!  Check that all is complete!  Done! 

We were in general agreement that law reviews are even more bombarded with submissions than they used to be; indeed, it seems that several publications are currently full and, according to ExpressO, are not accepting any submissions until 2011.  When law reviews are oversaturated with submissions, one tried-and-true method of getting your article noticed is requesting an expedited decision. 

The practice of expediting an article, however, can involve some tricky ethical questions, particularly when a law professor submits to the top 100 law reviews but in reality has no intention of publishing with that lowest-ranked law review.  I think that most would regard this submission strategy as less than ideal.  But is such a submission strategy actually unethical? 

There seems to be little question that law reviews, particularly those that are "low-ranked," are harmed by these choices.  Untenured professors, in particular, may feel pressure to apply to a large number of law reviews to maximize their chances of not only placing an article, but placing it in as prestigious a publication as possible.  If no offers from prestigious (or "prestigious enough" publications are forthcoming, they may also feel pressure to turn down an offer from a "low-ranked" law review and resubmit the article in the future.  It seems that these ethical issues are exacerbated when the law reviews are just bursting at the seams with submissions, reducing the odds that your article will be considered.

Thoughts?

Posted by Jody Madeira on August 10, 2010 at 04:40 PM | Permalink

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Comments

Orin, I basically agree with your description. I don't have a problem with journals stating explicitly that they will accept articles on the basis of the highest bidder (at that point it becomes an auction and not a bribe), but I don' think any journal can get away with actually saying that, which is where I find the implicit promise.

One clarification (which I included in my original comment): I don't think the journal is making the promise to authors as much as it is making the promise to various other constituencies: the law school that sponsors the journal; the prior Board that selected the editors (and who have an interest in keeping the journal reputable); and the readers of the journal (who presumably subscribe to the journal because they think the editors select the articles on some semblence of merit).

Posted by: TJ | Aug 12, 2010 2:19:18 AM

TJ,

As best I can understand, your claim is not about ethics generally but about honesty specifically. That is, you think it would be entirely okay for a journal to take cash bribes for articles as long as they say so publicly. In other words, you really don't object to bribes: You just object to journals not *saying* that they take bribes. Am I right about that?

If I take that as your objection, thenI think our only disagreement is to what set of promises the journals are explicitly or implicitly making to authors. I think that's where we differ. Take the line that the journal will "carefully consider all submissions." I interpret that as only indicating that they will consider all submissions. Even then, I assume they're being a bit broader than they mean: I assume they won't accept submissions in foreign languages, or in video form. What they're saying is that they don't rule out submissions from current students (as some journals do), or on certain subjects. In contrast, you seem to see that as not only promising carefulness (measured by some standard) but as promising some sort of merit selection.

Whatever the best interpretation, we're not disagreeing about ethics: We're just disagreeing about what set of promises journals are making to potential submitters.

Posted by: Orin Kerr | Aug 11, 2010 2:18:16 PM

Ani, I'm not messing around but responding to Orin's comment, since he brought up the topic of offers to friends and asserted that quality was irrelevant to ethics and editors could select on any basis they liked. I was just pointing that, taken to its logical extreme (selecting on something that was clearly not a measure of quality such as cash bribes), it was an indefensible position--and I take it you agree.

Posted by: TJ | Aug 11, 2010 2:04:49 PM

TJ, I assume you are just messing around (or inventing "some surprising factual assertions") -- offers not plausibly related to some measure of quality, but rather for personal gain, in terms of friendship or cash?

In any event, this strikes me as irrelevant to the topic of the post, unless you think that all lower-ranked journals (and the authors inconvenienced by deceptive expediting) should be punished in this peculiarly indirect way.

Posted by: Ani | Aug 11, 2010 1:47:49 PM

Orin, you are entitled to your opinions, of course (and they are usually quite agreeable to me). And, to be sure, a journal that announces "we accept articles based on cash bribes" is free to do so--to the extent that its sponsoring law school doesn't shut it down pronto. But no journal does so, probably because the many constituencies to which they have made implicit promises not to do so will come down on the Board like a ton of bricks. In fact, they put on their web sites that the journal "carefully considers all manuscripts it receives" (Harvard, but very common in email acknowledgments and such too). Of course, selling slots to the highest cash bidder would not be consistent with a promise to "carefully review."

I am really quite surprised that Orin Kerr would come out and say that he thinks it is ethical for journal editors to accept cash bribes.

Posted by: TJ | Aug 11, 2010 1:32:00 PM

TJ,

You say that "of course" you are right, placing the phrase in italics as if to emphasize the obviousness of your correct judgment. But I happen to think you're wrong.

He who pays the piper calls the tune, and he who runs the journal decides what to put in it. Of course, there are good reasons why articles editors will want to select articles that will be considered high-quality, by whatever measure. A journal that announces it is making arbitrary selections won't be respected as much, and fewer people will value the credential of being an editor on that journal. But those are incentives on articles editors, not promises made to authors.

Take the case of journals with an understood editorial view or subject matter emphasis, like journals on law and technology or with a feminist orientation. If you think about it, those journals actually come out and say that they won't publish the best articles on the world that don't match their subject area or viewpoint. That's a hugely arbitrary point, but no one gives it a second's thought: We all realize that editors are free to make their journal whatever they want to make it.

Along the same lines, we know that journals regularly give priority to their home-institution faculty members, to people they know, and the like. We are of course free to think poorly of the journals that do this, but that's just a question of our judgment of a journal's quality, not its ethics.

Posted by: Orin Kerr | Aug 11, 2010 10:59:46 AM

Of course they make such implicit promises that article selection will be based on some measure of quality, or at least not a measure of their own personal gain (and selecting articles as favors to friends is a form of non-monetary corruption). The promises are not made to the authors of unsolicited manuscripts, but to the prior Board that selected them; to the law schools that subsidize them; and to the readers of the journals.

There's some grey area there, though. What about to professors they had a class with and respect? Professors they've worked with before and know are easy to work with? What about blacklisting professors that are difficult to work with or always late on deadlines? (Our journal certainly had such a secret blacklist.) There's all sorts of personal factors that go into consideration, and I don't think that's improper unless the journal states that they do blind review or don't consider anything other than the article itself.

Posted by: anon | Aug 11, 2010 8:45:37 AM

Orin, I agree it is not unethical for articles editors to prefer professors from top schools as a proxy for quality, much as I am personally disadvantaged by that preference. But articles editors don't make implicit promises not to select articles from their friends? How about implicit promises not to select articles by accepting cash bribes?

Of course they make such implicit promises that article selection will be based on some measure of quality, or at least not a measure of their own personal gain (and selecting articles as favors to friends is a form of non-monetary corruption). The promises are not made to the authors of unsolicited manuscripts, but to the prior Board that selected them; to the law schools that subsidize them; and to the readers of the journals.

Posted by: TJ | Aug 11, 2010 12:37:34 AM

I would think pretty poorly of a law professor who made it a regular practice of submitting to journals that they knew they would not accept an offer from under any reasonably foreseeable circumstances.

As for games by law reviews, I don't think it's a "game" to select articles by friends, professors from top schools, etc. It's really unfortunate, but not unethical or a "game." Articles editors don't make any implicit or explicit promises that they will not consider such things: Authors all know that editors select whatever articles they like. In contrast, I think submitting an article to a journal is an implicit promise that the author is genuinely interested in publishing in that journal.

Posted by: Orin Kerr | Aug 11, 2010 12:27:36 AM

And to challenge an assumption in the initial post, I'm not sure that we can ever say that a professor has "no intention of publishing with that lowest-ranked law review." Presumably, an author would accept any journal, no matter how lowly ranked, if the author were convinced that they would never do better with that article. The question is simply whether hold-out * * * might yield a better result than the "bird in hand".

I think the scenario is this: author submits to several Low Revs, envisioning that one or more among them will generate an acceptance that can be used to hasten/improve the consideration at other Law Revs. At the time of submission, the author really does have "no intention" of accepting at a Low Rev, but wishes to use it instrumentally. In the (perhaps not even contemplated) the author is stuck with only a Low Rev offer, the expectation is indeed to hold out, perhaps by substantial reworking, because the "bird in the hand" is sufficiently unattractive. BTW, I have had discussions with some who say they would in fact decline a bad offer to publish, even were it the only option, because it would be such a blight on their CV.

What must be noted, however, is that quite a lot happens during the submission process to influence this assessment.

This resonates, but: What's key is the good faith expectation at the time of submission. One could go even further than the example given, and imagine that author submitting to Low Rev has zero intention of publishing with it . . . until learning, post-submission, that he or she should accept there because doing suddenly advances the possibility of getting an offer to teach at the affiliated school.
Lots *might* happen, but that strikes me as irrelevant to the ethics of the original submission, unless acceptance is genuinely anticipated at a meaningful level of probability (not just non-zero). I can't define the threshold, which *is* a failing -- but if the submission would be defended on grounds of what the author believes to an extremely improbable scenario, one associated with crushing disappointment, I'd say the proper thing to do is wait. Remember that any legitimate justification for submitting to Low Rev could probably be accommodated by submitting later, after all the preferred journals had declined . . . but for the instrumental value of expediting.

Posted by: Ani | Aug 10, 2010 11:16:54 PM

I think the answer depends on what strategy you take in submitting articles. I never do the hold-off-and-resubmit game: once I'm done with an article, I submit it, take the best offer, and move on to the next project. I submit first to the top journals, and steadily go further down the list if I don't get an offer within a certain period of time. Once I get an offer, I expedite, see if I can move up, take the best offer I can, and move forward. Sometimes, the first offer is the only one; other times, the higher offers are only negligibly higher, and I stick with the first one. But if I get a great offer, I take it. And as soon as I get an offer (or a better offer), I quickly turn down any outstanding offers and withdraw the piece from other lower ranked journals. But I never submit to a journal that I would not publish in -- doing that does seem unfair to those journals.

Posted by: Pete | Aug 10, 2010 10:05:36 PM

And to challenge an assumption in the initial post, I'm not sure that we can ever say that a professor has "no intention of publishing with that lowest-ranked law review." Presumably, an author would accept any journal, no matter how lowly ranked, if the author were convinced that they would never do better with that article. The question is simply whether hold-out (either by waiting for journals that did not respond to expedite or resubmitting the next season) might yield a better result than the "bird in hand".

What must be noted, however, is that quite a lot happens during the submission process to influence this assessment. For example, say that Professor X gets an acceptance at #100 but also gets multiple final round reviews at top 10 journals, all of which decline the article. My advice would almost certainly be to turn down #100 and resubmit next round. On the other hand, if #100 was the only offer and all the other journals (even those lower than #100) sent instant rejections, then that is a pretty good sign that #100 is the best that Professor X is ever going to get on that article, and he should take it while he can.

Posted by: TJ | Aug 10, 2010 9:26:36 PM

When I submit an article to an engineering, math, or science journal, I fill out a declaration swearing that I haven't submitted it anywhere else. I also expect to get serious reviews from my academic peers. It's not a perfect system, but it sounds a lot better that what lawyers have to work with.

Posted by: billb | Aug 10, 2010 9:13:05 PM

Oh, and the point is that I agree that "everybody does it" or "I need to" or "it's all unfair anyway" is rationalizing.

Posted by: Jeff Lipshaw | Aug 10, 2010 8:10:13 PM

Ani, at the risk of shameless self-promotion, I wrote a long, difficult article that dealt with one's own attempt to distinguish between determining right and wrong, on one hand, and rationalizing something that you wanted anyway, on the other. I see this as an issue that is particularly acute for lawyers, whose job is to rationalize away what their clients did wrong by way of advocacy. "Law as Rationalization." It has turgid theoretical excursions, but I was trying to work with really close and hard questions that general counsels often have to face, where the job ISN'T just advocacy, but trying to make the right moral or ethical decision.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=886741

Posted by: Jeff Lipshaw | Aug 10, 2010 8:04:07 PM

TJ, I should clarify and then quit this thread, in which I am (passionately or otherwise) beating a dead horse. Actually, it's pretty predictable that someone who's passionate *will* make surprising factual assertions, but here's what I meant . . .

I don't doubt for a moment that there's letterhead bias; what I tried to say was that the pieces are probably never exactly the same (that's what I meant by "similar (but non-same)"), and so student editors looking at pieces that are *not* directly comparable (merely debatably varying degrees of publishable) -- and lacking genuine expertise -- probably choose to rely on all kinds of signals of quality and trustworthiness, like whether the person has training, peer status, etc. I may or may not agree with that, but I don't think it's unethical.

You add that most top reviews declare that they don't accept student-written work, which I'm a little surprised to hear (I didn't think it was a majority, but live and learn). In any case, that may be maddening, but at least it's transparent. So I would propose that the authors that are the subject of the post write submission letters saying, "Please review my piece for publication, though I will not publish it with you (or, at least, I refuse to contemplate the possibility). Thanks in advance for the bump."

You ask what another system would look like. I don't know, but if everyone submitted only to places that they would really publish, I expect the quality of the reviewing process might improve a little as more time was freed.

Posted by: Ani | Aug 10, 2010 7:55:19 PM

Jeff: Thanks for the reply. Sounds like we agree in our personal conduct but not in how we regard the behavior of others. I'm genuinely puzzled as to the possibility of an exculpatory rationalization for behavior of this type. I assume that submitting to a journal means precisely that the author would be willing to publish there under plausible conditions (e.g., at least if it were the only offer; not if it were the only offer and the journal offered to make the author king for a day); if an author would withdraw under those conditions, and either knows that or would realize it if the question were (properly) contemplated before submission, it's deceptive. The only arguments I have heard in favor of this behavior are nakedly self-serving and unconvincing (e.g., "I need to do this," or "it's all unfair anyway").

This strikes me as both "objective" and plausibly a community norm, albeit one worth reinforcing to stave off erosion. A "your mirror" view risks contributing to that erosion.

Posted by: Ani | Aug 10, 2010 7:42:04 PM

Ani, for someone who is so passionate about the question you make some surprising factual assertions. You doubt that there are many law reviews that accept pieces by Harvard law professors that they would not if the author was a student? I think every professor in the country who does not teach at a top 10 law school is absolutely convinced that such letterhead bias not only exists, but is extremely strong. In fact, most top law reviews have explicit polices not to accept student-written articles (see ExpressO for the list), so the particular situation described by anon is preordained for just about every article published by a Harvard professor--if written by a student, it would have been summarily rejected under said "no student article" policies.

Of course, the tit-for-tat defense rarely works in philosophical debates. But I share Jeff's sentiment on the matter. My own take is that nobody really likes the current submission system, but it is not clear what better system would look like nor how one could feasibly be achieved.

Posted by: TJ | Aug 10, 2010 7:27:21 PM

Ani, I should be clearer. I would never submit to a law review unless I had concluded that if were the only offer I would accept it. For me, it's black and white, and there's no hedge. That seems to me to be easy, because it's a pretty black and white situation: I have all the facts I need for the decision before I submit. That's to distinguish it from a situation like a job interview, where I think it's far more likely than not that I wouldn't take the job, but as long as I have not completely eliminated the possibility of being persuaded, I just don't see a moral issue. That's my personal judgment.

I distinguish my subjective judgments from labeling conduct as "unethical" because it implies now that there is an objective standard, namely an "ethic" that has been violated. I use "squirrelly" because because I don't think this is a malum in se issue, nor do I think there's an ethical code that's been accepted within the culture. I hear the rationalizations on the expedite game from others, and I'm not prepared to say they carry no weight at all, but I like "squirrelly" as an adjective for issues that seem pretty black and white to me from my subjective viewpoint, but aren't completely, at least in my mind, malum in se or clearly established as societal ethics.

It reminds of the debate a while back about whether it's immoral to foul deliberately in basketball as a strategy; that is, it's not a universal rule of nature but a cultural construct (I don't feel that way about everything). I think submitting when you know or are reasonably certain you wouldn't publish in a review is squirrelly, but fouling deliberately in basketball is not. I don't know why. I would think somebody who didn't foul deliberately as part of a strategy was a sucker, but I don't feel that way about myself and my own policy on submissions.

And I honestly don't care whether other people can live with squirrelly or not. They look in their mirrors and I look in mine. If it turns out I'm a sucker because I abide by rules nobody else does, I'll live with that.

Posted by: Jeff Lipshaw | Aug 10, 2010 7:15:41 PM

Jeff: let's put aside whether this strategy is effective (I believe it can be, and know for a fact many believe that it is), and assume people do it. You emphasize "KNOW" and say it "probably isn't the worst ethical breach ever committed, but it strikes me as squirrelly at best."

This seems to me an unnecessary hedge. Assuming we're limited to cases in which it's "known" that the author won't consent to publish at the journal in question -- though I would expand it to cases in which the author could fairly eliminate the possibility if he or she thought about it carefully -- why hedge? It's not the "worst ethical breach ever committed," but that's a distraction; no one would say it is. Does "squirrelly at best" mean you regard it as unethical or its near-equivalent, in the absence of full disclosure? Because a lot of untenured, and many tenured, people could live with "squirrelly."

Posted by: Ani | Aug 10, 2010 6:10:27 PM

I'd be curious about the empirics as much as the ethics of expediting. First of all, placing in a top 100 law review ain't so bad. Second, if you strip away the availability heuristic, I wonder how much expediting actually helps in the kind of leaps the post implies. Third, submitting to a publication where you KNOW you wouldn't publish probably isn't the worst ethical breach ever committed, but it strikes me as squirrelly at best. I wouldn't establish my own ethics by what I perceived as the ethics of law review editors.

Posted by: Jeff Lipshaw | Aug 10, 2010 6:00:53 PM

Anon: unless your position is that the system is so corrupt that every transgression can be forgiven, I don't see how that's relevant. And if you believe that, I guess we should forgive plagiarism, too.

To address your question, though, I doubt there are many if any instances of what you describe. And if the question is whether a journal can ethically favor a professor-authored piece over a similar (but non-same) piece by a student, I would say that it's ethical -- it might reflect the defensible belief that the professor author was accountable in some distinct way (though the opposite might be true), or serve the journal's interest in improving its own status, etc. It would be better if it broadcast this policy, and unethical if it did this while claiming it did not.

Posted by: Ani | Aug 10, 2010 5:37:32 PM

I pretty much take what publications I can get, but I wouldn't begrudge someone from playing a game when law reviews themselves play games as well.

Posted by: b2s | Aug 10, 2010 5:33:47 PM

Ani - Is it ethical for a law review to accept an article solely because it was written by a professor at Harvard but if a student at Harvard had written the same thing it would have been rejected?

Posted by: Anon | Aug 10, 2010 5:28:20 PM

I am not sure I can identify and defend an ethical standard of a kind that has, say, professional consequences if it is transgressed. But really, can there be any doubt that someone who submits to a journal at which he or she would not publish (whether they know that in advance or would reach that conclusion upon reasonable reflection) should be condemned for that behavior? It really seems indefensible to me. Imagine how things would play out if the submission was accompanied by a cover letter that explained the author's position -- would the review would provide the acceptance the author seeks as a a freebie, if they knew the author wouldn't publish there?

I think people doing this, if there are people doing this, should be ashamed, and that the potential personal benefits are irrelevant. I feel the same way about anyone who fools herself or himself in thinking, "Well, it's *possible* that they might accept #100, or at least can't be mathematically excluded . . . "

I must be missing something.

Posted by: Ani | Aug 10, 2010 5:21:11 PM

As a non-professor (but professor-hopeful), I no longer care about ethics in this context because I have had law reviews send rejection letters minutes after submitting my article. I've also seen journals accept articles because they were friends with the author or because law professors have recommended the piece. Also, my articles would have undoubtedly placed higher if the byline was that of someone already in the club. I think the frustrations and ethical dilemmas of the process can be completely done away with if the academy just stopped caring about placement and just let the work speak for itself.

But of course that just makes too much sense.

Posted by: Anon | Aug 10, 2010 5:06:52 PM

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