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Tuesday, May 31, 2011

Solving the Problem (?) of Scarce Slots for Specialty Articles

In our last episode, we ended on a terrifying cliffhanger: few journals in any year have editors interested in any given, esoteric, legal subject.  Slots for the "weird" (i.e., not con law or crim law) at those journals are especially scarce because most limit themselves to no more than one of each.  FoP Carl confirmed that impression.  This led us to ask: if a board feels it's especially interested in some area, why not accept a second or third excellent piece on the condition of publication in the next volume?  Especially in the age of ssrn and bepress, many authors would surely accept such an offer.    

My proposal to overcome this limitation (I hesitate to call it a "problem," but so far I remain convinced it's a needless cost of existing rules): let current boards make offers to publish articles in future volumes, subject to approval of their full membership.  I unpack why this could make sense after the jump.

Journals, I think, limit board authority to the current volume for the same reason states force their officials to balance budgets: to reduce inter-temporal externalities.  There’s a useful disciplining effect when the board that accepts a piece also has to edit it (or at least buy beers for and accept dirty looks from the hapless managing editors who do the hard work that results).  It’s more fun to work on articles and with authors you’re excited about, instead of stuff your predecessors thought was cool.  (Aside to the clerk who inherited my docket: sorry about all those admin cases.)  And at some point deferred offers could pile up, to the point where later boards would be unable to offer timely publication to anyone (and, therefore, probably unable to get many offers accepted) -- but current boards have at best indirect incentives to care about that. 

Still, there are other solutions that would mitigate the externality problem while also offering more flexibility.  As one recent Harvard editor pointed out in comments to one of our prior posts, Harvard will theoretically accept an unlimited number of articles in a year.  In practice, though, they almost never do, because they (accidentally?) have an internalization mechanism: their full membership, which presumably includes the following year’s board, votes on all offers.  Now, probably Harvard’s practice wouldn’t work for everyone; they publish maybe 8 articles a year, and some places push out three times that many.  That’s a lot of editor-hours spent voting (not to mention debating and/or clucking over the choices).  And they’re Harvard; they don’t need to hurry to make offers. 

But not every article has to go through full-member voting.   Boards could give themselves the option to call for a full-member vote in cases where their likely alternatives are reject or defer to the next volume.  In other words, the board alone can accept articles for the current year, or, with the approval of the full membership, for the following.   There are probably other institutional benefits from giving the 2L membership some limited exposure to the selection process, too.  This procedure would give the immediate future a voice in efforts to impose costs on them, while opening more slots for truly sparkling pieces that catch a board's fancy but seem too similiar in subject to other pieces in that volume.

I’ll bet there are lots of other possibilities.  Let’s figure it out.  Or is this a pseudo-problem?  Tell us what you think.    

Posted by BDG on May 31, 2011 at 05:43 PM in Law Review Review | Permalink


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This "problem" doesn't exist at all journals; e.g., The Yale Law Journal published two patent articles in the most recent volume (out of 13 articles total). I think a number of the top generalist journals are just looking for the "best" articles they find (in the opinion of their diverse selection committees), regardless of subject matter. And given the distribution of high-quality submissions, it is just statistically unlikely that a group of editors will agree that two tax or IP articles meet this bar in a given year.

I agree with TJ that not accepting articles for future volumes is more a problem of dead-hand control than of editing work. Additionally, I can imagine editors worrying that new developments during the long time before publication might make the article less novel or interesting.

Posted by: Lisa Larrimore Ouellette | Jun 2, 2011 4:14:21 PM

Brian, what you essentially want is a bigger quota for tax/IP/etc. That has nothing to do with the inter-temporal distribution. There is no meaningful difference between asking "why not write guidelines to reserve next-year flexibility" and asking "why not write guidelines to reserve this-year flexibility." In that sense the proposal will not solve the problem.

As for why Harvard's system has not collapsed, it is the same as why everybody's system has not collapsed. As I understand it, Harvard's system is that theoretically they can slot articles to next year's volume. As a practical matter, however, they basically never do. That to me indicates there is a recognized social norm against it. And that norm, rather than the express rules, is what is controlling at Harvard as much as any other journal. It must be realized that the written rule against B1 taking articles into perpetuity is a parchment barrier -- in theory, B1 can change the rule and then accept articles forever without giving 2Ls any votes at all. What restrains B1 is not the nonexistent power of 2Ls, it is a social norm based on sound institutional reasons. But norms are much easier to continue when they are not subject to numerous exceptions that weaken them, and you are suggesting an exception large enough to drive a truck through.

Posted by: TJ | Jun 1, 2011 6:12:02 PM

As TJ pointed out, this does nothing to allow more tax/IP/etc. articles to be published if we're assuming that editors don't like to publish those articles in the first place. If editors don't like these types of articles, then why would they agree to "reserve next-year flexibility for articles on subjects typically underrepresented in the journal's offerings"?

And if we're talking about elite law reviews, this also assumes there's a deep pool of outstanding tax (or other weird) articles every year. I remember as a submissions editor wanting to publish a tax article but struggling to find one that was "good enough" for our law review. It came down to the wire, but we did find and publish one. That article was the only tax article submitted that I would've voted to publish (granted, because of our system, I didn't see every tax article, so perhaps some great ones came in but my less tax-friendly colleagues dismissed them before they could be voted on by the submissions board).

Posted by: GU | Jun 1, 2011 12:54:26 PM

Thanks, TJ, for taking the time to comment. But if your analysis is right, why hasn't Harvard's system collapsed? Couldn't it be that, as I argued, the preferences of 3L's are checked by 2L voting?

I also don't quite see why the "hierarchical" nature of the review matters. I doubt senior editors have enough information to select the incoming crop of 2L's based on the preferences of the crop. Are you saying that the 3L's can dictate the outcomes of votes once the new editors are selected? That seems very implausible to me.

You are right that letting 2L's vote doesn't perfectly solve the problem, but nearly all deferrals will be for the following volume.

I also agree that if editors used their additional discression to publish more con law articles, that would be, for me, contrary to the main goal of the proposal. But why not write the guidelines to reserve next-year flexibility for articles on subjects typically underrepresented in the journal's offerings?

Posted by: BDG | Jun 1, 2011 10:42:50 AM

I don't understand the basis for what seems to be an assumed fact of non-entrenchment. There is entrenchment. The board that selects articles in the fall will not be the board that sees those articles out the door in late spring or summer. I should say that I came preciously close to being screwed by a new board that didn't think it was bound by earlier decisions, but fortunately that didn't materialize in the end. It was nonetheless a ridiculous thing to try to explain the idea that just because there's some turnover that the organization shouldn't see its commitments to authors through. Imagine a law student applies to law school and there's some change in faculty or in admissions office. You can't just say, oops, we're withdrawing our earlier commitment based on personnel change in the relevant office. Anyway...

Posted by: Dan Markel | May 31, 2011 10:14:34 PM

I think you are missing a problem in your proposal, and I don' think your proposal will really address the limited slots for weird articles problem.

1. The problem you are missing is that the intertemporal externality is more than just the problem of doing the grunt work of editing. It is also the problem of dead-hand control. This year's board will surely like to make selections for all the articles into perpetuity, unless it had a huge amount of confidence in next year's board. Lets take a simple model where each volume has only one article. In your proposal, B1 has a choice, it can either take its second-favorite article, or defer to next-year's board which will pick B2's favorite article. But unless B1 expects that B1 will like B2's favorite article more than B1's second favorite article--unlikely in the extreme--it will prefer to select the second-favorite article. And this goes on for B1's third favorite article vs. B3's favorite article, etc.

2. You might respond that the full-membership vote cures matters. It won't. First, remember that B1 selects the next board (at least at most places), so to the extent there is a systematic asymmetry of interests between B1 and B2, B1 will always win. The full membership can offer information and advice; it has no actual power to protect its interests due to the hierarchical nature of the law review. Second, the membership surely cannot protect against slotting articles beyond the next volume, since there are no members from that period.

3. To sum it all up, there is a good reason that we have an ancient rule that no legislature can bind the next. And it is not about foisting off the grunt work.

4. Finally, even your proposal won't solve the problem you are trying to address. Again, everything depends on the preferences of B1. And B1's preferences are to publish lots of con law articles and only 1 article of Tax/IP/etc. So the result of your proposal will actually be to slot con law articles into perpetuity, and even fewer slots for weird law.

Posted by: TJ | May 31, 2011 6:34:56 PM

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