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Wednesday, May 25, 2011

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.

Posted by BDG on May 25, 2011 at 11:26 AM in Law Review Review | Permalink


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The scarcity isn't actually dictated by the full number of slots at good journals; it's the number of slots at journals where there is at least one editor who cares about whatever esoteric subject an author is submitting. Not every journal has at someone who is going to push to pick IP articles, and so if you're submitting an IP piece, those slots are especially scarce. That's why it's unfortunate that journals where there is interest in an esoteric subject limit their willingness to take them.

Posted by: BDG | May 26, 2011 5:56:17 PM

As someone who is also on the receiving end on this, let me say that I think your undesirable effects are overstated. First, there is not really more scarcity. The number of slots at top journals are ultimately finite. More slots for tax will have to come from somewhere. And given that law review editors will love con law no matter what (that is the specialty that has no pre-set slots) the slots surely are not going to come from there. So more tax articles will mean fewer IP articles or admiralty articles. We are playing a zero sum game.

As for the submit-early strategy and problem, this is actually a very interesting literature on this. Basically, for an articles editor this is the problem of getting 100 tries on opening different boxes, each of which has a random amount of money, and each time you must decide whether to keep the amount in the box you open and exit; or try another box for (hopefully) a higher amount. I forget the optimal solution, but I am pretty sure it is not keeping what you find in the first box. Which means for an articles editor, you should never accept the first specialty article you read.

Posted by: TJ | May 26, 2011 1:04:31 AM

It works both ways, of course. Editors need not publish ANY tax articles in a given year, but they are specifically on the lookout for one. Just not two.

Posted by: 123anon | May 25, 2011 10:45:32 PM

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