Why Is It So Hard to Publish an IP/Tax/Admiralty/WeirdLaw Article?

“We would have accepted this article in February,” one editor-in-chief kindly wrote me not long ago, “but we’ve already accepted a tax article this year.”  At the time, I took this as likely an editor’s version of “I have to wash my hair” and tried not to take it too seriously.  A couple of  weeks ago, though, at the OJ (as previously highlighted by your humble correspondent), a recent Chicago Law Review editor said much the same thing: once his journal takes an article from a “specialty” field, the bar is much higher for other pieces in the same field.  Because I enjoy pointless sword fights and extremely bad Scottish accents, I’ll call this the “Highlander effect”: there can be only one specialty article per volume. 

It’s easy to understand the institutional dynamic that produces the Highlander effect.  (It’s a little harder to understand why you’d cast a fellow with a thick Swiss accent as a Scot, but let’s save that for another post.)  Articles editors typically have diverse interests--often by design, in order to maximize the board’s capacity to evaluate a range of topics.  Given a limited number of publication slots,  some combination of log rolling and feelings of fairness to others’ preferences means that boards will rarely be able to accept multiple pieces that would satisfy some “outlier” preference.

This scarcity has a number of undesirable effects.  For one, it produces a race to the “submit” button -- exactly the race lamented by our OJ commentator.  It adds significantly to the randomness of placement results, reducing their signaling value.  Or, alternatively, it produces repeated submissions of essentially the same piece to multiple boards, another practice rightly decried at the OJ as wasting journal resources (and, y’know, recidivism is pretty annoying for us authors, too).  Conceivably it raises significant conflict issues for peer reviewers submitting in the same cycle (or narrows the pool of unconflicted reviewers).

What’s most vexing about this particular Highlander, though, is that it’s driven entirely by the assumption that available slots are limited.  Why not just park the second excellent tax article in the next volume?  Well, that’s a thornier one.  Let’s pause for comment & come back for a Part II.