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Thursday, February 23, 2012

Adventures in article placement and timeliness

At long last, my (hopefully definitive) take on the jurisdictionality of the ministerial exemption has been published in Penn Law Review's PENNumbra. As I said, I hope it will convince doubters that this is a merits doctrine, grounded in First Amendment limits on Congress' legislative power, that has nothing to do with the courts jurisdiction to hear and resolve an individual case. I am especially interested in hearing from members of the law-and-religion community, who have proven much harder to convince than the fed courts folks.

But I want to talk about a strategic dilemma with the piece, that brings up issues of timeliness as it affects article placement. Nothing new there, of course, but the new world of on-line law review supplements changes things, where the turnaround time can be a matter of weeks or just a few months. In other words, while timeliness always has been part of the placement process, it often was comparing nine months to six months for publication; now it's comparing 10 weeks to 4 weeks.

I finished writing the piece and submitted it to on-line journals in October, just after the oral argument in Hosanna-Tabor. My original hope was to get the piece out before the Court decided, as an argument for why the Court should reach out to resolve jurisdictionality, with the longer-shot hope of getting the piece noticed by the justices. I received an offer from one top-20 journal that has a newer on-line supplement. Then I received the offer from PENNumbra, but with the limit that they would not be able to publish until February. This presented a dilemma.

If I took the non-Penn offer, I would achieve what I originally wanted with the piece, although in a less-high-profile placement. If I took Penn and waited, I faced several obvious risks: 1) the Court could decide the case before publication while analyzing jurisdictionality; 2) the Court could decide the case before publication while ignoring jurisdictionality; or 3) the Court could decide the case very soon after publication. The problem with # 1 is that it essentially would preempt the article; the problem with # 3 is that it would give the piece a ridiculously short shelf life while being too close to the decision date to actually affect the decision. Number 2 would have required some (perhaps substantial) reworking of the article on a fairly short time frame to explain why the Court should have resolved jurisdictionality and to tell lower courts what they should do about this aspect of the ministerial exemption going forward.

I took Penn and waited. And, in the end, the Court threw a fourth option: It resolved the jurisdictionality issue, announcing in a footnote that the exemption is an affirmative defense to the merits of the discrmination claim, but with virtually no analysis or explanation for that result. I thus rewrote the piece as "here is why that conclusion is correct, here is the analysis the Court should have done, and here, lower courts, is what these concepts mean." Frankly, I think the reworked version is significantly better and could have longer staying power. And it has the benefit of coming out about six weeks after the Court's decision, so it may be among the first articles on Hosanna. Plus, the chances of getting noticed by the Court in advance were slim to begin with, so I think I made the right choice.

But what would other people have done faced with the same choice?

Posted by Howard Wasserman on February 23, 2012 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman, Teaching Law | Permalink


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My colleagues and I faced something similar with our Article Essay on U.S. v. Jones, although somewhat different because it began with an amicus brief on cert in Pineda-Moreno v. U.S. (No. 10-7515) which the Court ultimately did *not* take, taking Jones instead.

Shortly after filing our brief, we expanded it into an Article and submitted to several journals (both print and online). Print journals were (unsurprisingly) hesitant to accept it, primarily for fear of the "preemption" issue. (I was told so directly by some editors.) Online journals were more interested, but with varying promises as to publication. In fact, we faced a similar dilemma with a lower-ranked journal making a "quick" offer and YLJOnline being longer (where we eventually published but in shorter Essay format).

Ultimately we fell into a modified category #3, with the publication being right around the time of oral argument (and a few months before decision). However, we had also filed an amicus brief on the merits in Jones, so this changed the calculus somewhat.

The Court's decision also put us in a somewhat category #4 - with the surprise focus by the majority on the physical intrusion, but five Justices indicating a willingness to consider greater Fourth Amendment protections in the context of GPS surveillance. However, of note, our publication timeline did *not* give us the opportunity (as did yours) of modifying our work in response to the Court's decision.

This recount really isn't an "answer" to the question, just another example of timing (possibly) mattering.

Posted by: David Thaw | Feb 23, 2012 11:14:53 PM

I think you picked wisely. The law-review-article-as-amicus-brief is usually a bad idea: Even if someone inside the building sees it, it gets no more weight than an amicus brief, and once the case is over the article is quickly outdated. So it's a lot of effort for relatively little reward; better to take your time and write something more lasting.

Posted by: Orin Kerr | Feb 23, 2012 2:29:54 PM

Interesting post. I am a big believer in the "prestige" value associated with elite school publication even if that means a specialty journal (i.e. int'l law or business law). Actually, I think international is as good as the "law review" given the growing role of int'l law. So I think you made the right call. In addition, I am noticing a higher author profile delving into the online companions and IMO these will start to become cited by courts and will become somewhat equivalent in terms of value to the traditional "print" issues.

Posted by: T14Author | Feb 23, 2012 12:43:29 PM

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