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Tuesday, October 20, 2015

Exploding offers from law reviews: a new trend? (Part I)

We all know the standard practice when it comes to law review submissions: we get an offer from a journal with a deadline to accept. Then, we frantically go back on ExpressO to expedite to higher ranked journals. If we get a better offer before deadline, we drop the original offer like a bad habit and hopefully expedite our way all the way to the top. The practice is often tough for lower ranked journals, who have to scramble to find new articles, but it's the way the process has worked for years. What if the students switched it up on us?

This fall I've heard two reports of authors who received "exploding offers" from student law reviews. The journal told the authors that they had given more than one offer for their publication slot. The authors were given a deadline, but were told that the offer would be revoked before the deadline if a different author accepted the slot first. True to their word, offers were revoked, before the deadline.

According to the faculty advisors of one journal, the students decided to do this in response to "exigent circumstances," after receiving the short end of the stick from the process we're used to. Over the course of a month, the students had made fifteen separate offers to authors to fill one slot, and each time the author declined their offer after expediting upwards. They felt their unusual solution was necessary to make sure the students could start editing on time. The students were upfront about the process when they made the offers to the authors, and the faculty advisors emphasized that this was NOT the journal's standard practice.

I am torn on my feelings about this practice. On the one hand, it puts authors, whose careers often depend a lot on getting the best placements they can, in a very hard situation. On the other hand, the standard process can be very difficult for students, especially those at lower ranked journals, and getting good articles to start editing on schedule is central to the pedagogical function of law journals. On yet another hand, exploding offers could ultimately be self-defeating, as it could discourage authors from submitting to those journals in the first place.

Is this the wave of the future, or a creative mistake by a couple journals?

Because I've heard some strongly negative responses to exploding offers and the faculty advisors say this will not be their standard practice going forward, I think it makes sense to keep the names of the journals out of this blog, and the comments, for now. I won't delete any comments that offer to share the names offline.

Please let me know if you've heard of any other student journals that have done this, or similar practices. I promise to handle any such reports with the utmost discretion.

Posted by Andrew Chongseh Kim on October 20, 2015 at 09:04 AM | Permalink

Comments

So, a few rejoinders for why publishing only in a home institution's law review or journal would derail the current system of law reviews:

1) It's enjoyable for professors to work with students from other law schools.
2) It's enjoyable for law students to work with professors from other schools.
3) Students can edit articles in areas of interest not covered by their law school faculty.
4) Publishing in outside journals increases academic market mobility.
5) Receiving article submissions from professors from outside schools, decreases pressure on editors to accept poorly crafted articles from their own faculties.
6) Symposia can be constructed from professors within and without the institution.
7) Certain journals are better recognized by others; if only professors in those law schools publish in their pages, researchers turning exclusively to the publications on the basis of name recognition will be less likely to cite to authors working in less renowned institutions. This will, perhaps, be especially the case with non-U.S. scholars who will be unlikely to know the system that each academic can only publish within the pages of the home institution's publications, and therefore more likely to rely on proxies. There they will only find institutional names, thereby substantially limiting the dissemination of knowledge, wisdom, and research.
8) Editors can find excellent pieces on SSRN, Legal Theory Blog, etc. and solicit authors to submit the pieces to them, even when the scholars work outside the law review's home institution.
9) A final anecdote: I subscribe from my law library to about eighty law reviews and secondary journals. In that set, I try to at least glance at all articles in my own field (and many of them I read in full) and to stay abreast of interesting developments in areas outside my expertise. In those eighty some journals, I find articles from authors all over the United States, many excellent pieces come from professors at schools whose journals and law reviews are not on my subscription list. Under the plan of all professors should publish in their institutions' several journals, I'd need to subscribe to all law reviews and all journals in the United States (and presumably abroad) and sift through them all. That would be almost (or perhaps a completely) impossible task. It's much better for me to go through my chosen, relied-upon set of quality publications than the entire universe of legal publications.

Posted by: Alexander Tsesis | Nov 11, 2015 12:21:40 PM

In all likelihood, the use of placement as a proxy for article quality has the greatest effects in the entry-level hiring market and in tenure/promotion decisions. For this reason, I would love to see James's system implemented for all VAPS, fellows, and untenured folks. At the same time, these folks are the ones who would have the least power over law review students who might have concerns about plagiarism, esp. if the law review has a mechanism for reporting such incidents to the Dean or the tenure/promotion committee.

Posted by: Anon | Oct 25, 2015 12:32:08 PM

I would *love* to see more discussion of law faculties taking on *increased,* as opposed to total, peer-review & overview responsibilities for their own school's journals, both general & specialized (maybe there's already more of the latter). For years I've taken anything in "Supreme Court Review," "Constitutional Commentary," etc. more seriously than most anything I see in HLR, YLJ, etc. It would also address the problem of being embarrased by something one sees published in one's own school's journals.

Posted by: Dave Garrow | Oct 24, 2015 12:18:21 PM

Derek’s reply to James I think is right: if one or more senior faculty play a supervisory/ editorial role in the journal, then that might limit bad behavior by authors. And it’s not as though faculty at other institutions and at the journal’s own institution don’t engage in bad, coercive behavior under the current system. The more that more faculty become involved and take ownership of their own schools’ journals, the better the journals will run.

The concern with what happens to "VAPs, fellows, practicing attorneys, and judges” is much more persuasive, and why I prefer the other proposal I suggested of allowing a limited number of multiple submissions with the requirement to accept an offer if one is extended. (I should note I’m not the only one nor in all likelihood the first to say this — I think Orin Kerr has suggested it in the past, and my colleague Rob Rhee has a draft paper arguing for something like this.)

As to the law professor shirking argument: I agree that not having to engage in peer review is an advantage that law professors have. It is made up for, however, during the tenure review process, where peer review becomes much more important and well-regarded senior faculty are frequently prevailed upon to review scholarship. Note, however, that the peer review journal system does not require faculty to engage in the actual editing of journal articles (which “Jealous” suggested), although they might cycle through as general editor of a journal for a period of time, which is a prestigious position far beyond that of normal peer review.

The kind of work that law review editors do, especially in cite-checking, is exceptionally valuable to the legal academy and notably is not performed in most if not all peer-reviewed journals. Most scholarship in the humanities and social sciences is very poorly cited and isn’t cite-checked, which makes citations in legal academic publications far more reliable. There are many advantages to the quality of scholarship in the current law review system in terms of both the editing of work and the speed of its appearing. It would be wonderful if there were a way to keep those advantage while getting rid of the rampant pathologies that course through it...

Posted by: Mark Fenster | Oct 24, 2015 12:11:06 AM

If we were to extend James's suggestion to VAPs, fellows, practicing attorneys, and judges who want to publish articles, would those groups publish in the law reviews of their JD-granting institutions?

Posted by: Anon | Oct 23, 2015 5:08:18 PM

James,

I think you'd just try to avoid those conflicts in the first place. Journals have a lot of editors, so you ought to be able to have everything read and reviewed by several students with no relationship to the professor.

Of course, there may be pressure at the institutional level. How many students are going to be comfortable calling out a professor at their own school for plagiarism? But with that in mind, how many current journal editors are comfortable calling out a professor at another university?

Posted by: Derek Tokaz | Oct 23, 2015 3:05:31 PM

Well law professors are advocates and they have managed to advocate for a system that has them teaching less than most disciplines, testing/grading only once a semester, and doing almost none of the reviewing/editing of the articles for their scholarly journals. Have to respect that they managed to set up such a good system for themselves.

Posted by: Jealous | Oct 23, 2015 2:35:43 PM

If there's a good reason for legal scholarship to be treated differently than all other academic scholarship, I haven't heard it.

Legal scholarship should go through the same process as all other scholarship, which includes peer review and single submission.

Law schools want to be considered on par with other professional schools but for some strange reason want an exception to the publications rules that everyone else follows. I smell some self-serving brisket being served.

Posted by: MM | Oct 23, 2015 1:13:47 PM

I previously advocated for a system like the one Mark and Derek discuss: each school's law review edits and publishes the work of its own faculty. But I received a reply that brought me up short: the risk of coercive pressure by professors who have authority over the students outside of the publishing relationship. Suppose that a student editor, for example, realizes that an article is substantially plagiarized, or that it misrepresents the sources it cites, or that it has other serious issues. That student may quite reasonably fear retaliation if he or she stands up to the professor. I don''t know what the solution is, or even if there is one.

Posted by: James Grimmelmann | Oct 23, 2015 11:27:07 AM

The current system is really about as bad as one could construct. A rapid decisionmaking process confined to several weeks maybe a month by uninformed students, many of whom have never read a law review other than the one they may have cite checked. And while it is true that academics should read articles before hiring or tenure, my experience at a number of schools is that just does not happen at most places, which is consistent with the fact that, when all is said and done, most law schools are not serious academic institutions. One modest reform would be to return to a system where articles are accepted throughout the year. I am not sure when the race in February/March began but there was a time when law reviews accepted articles throughout the year and the next board was responsible for getting them to publication. That was a much better system, and it was also likely that by September or October the students would have a better feel for what made a good article.

Posted by: MLS | Oct 23, 2015 9:58:28 AM

Mark,

Having the schools publish their own professors sounds like a great idea. Let's break down the pros and cons:

(P1) Streamlined publication process.

(P2) Increased relationship between faculty and students at a school. It'd probably help for editors to be able to sit down in a professor's office and talk through parts of an article. Not only would this improve the editing process, but it'd help build relationships that you aren't going to get through written notes.

(P3) Eliminates a metric that allows for laziness. Currently a lot of an article's "quality" is measured by what journal it gets in. But, we also know that prestige of the journal isn't a good indicator of article quality. By removing this crutch, people who want to evaluate quality will need to engage with the article's ideas.

(C1) Your school's students may suck at editing. To that I say tough cookies. If you're the superstar professor at a school with mediocre students, then I guess you're just going to have (1) take more of an interest in them and do some mentoring to get them up to snuff, or (2) write articles that aren't in need of much editing.

(C2) Loss of specialized journals. This may be a real concern, in terms of losing specialized editors, and losing a central publication for articles in a certain field. But, we can just modify the system to keep specialized journals and only lose the general law reviews.

(C3) No filtering mechanism. Do we really expect schools to turn down their own professors' work? There'd be a strong incentive to publish everything regardless of quality. We'd lose the little bit of filtering that current law reviews provide. Sure there may be little difference between a Columbia Law Review and Georgetown Law Review article, but we can guess there may be a meaningful difference between a tier 1 school and a tier 3 school, or between finding publication somewhere and not getting published anywhere. One solution to this is something I suggested on another thread, which is the creation of meta journals, in a "Best of" format. That might recreate some of the current publication woes though, who knows.

Posted by: Derek Tokaz | Oct 23, 2015 8:32:49 AM

James and Mark make excellent points. I would support a system where law professors had to accept the first offer; it would cut down on the game playing, and it would streamline the process.

I have a few additional thoughts on the submission process here: http://lawprofessors.typepad.com/business_law/2015/10/thank-law-review-editors-and-thoughts-on-the-law-review-submission-process.html

Posted by: Haskell Murray | Oct 23, 2015 7:34:37 AM

The two basic models discussed here -- the current multiple submission chaos and the excessive control of single submissions -- need not be the only ones for law reviews, even without peer review. Why not a hybrid, overseen by a neutral third party (eg, expresso or scholastica or both), in which authors are limited to a set number of submissions to journals of their choice, but have to accept an offer given by the first of them? (Or the journals have x number of weeks to respond and the author can choose among multiple offers if more than one is given.) The journals could see what each other has done, so no fraud is possible and the deadlines are clear.

James's initial point is an excellent one and argues for abandoning law reviews altogether for an open access model, in which each law school publishes its own faculty's work in an institutional repository, after editing and cite checking by their own students. That would be cheaper and easier for everyone, without the incredible dead-weight losses of the current system.

Alex, I agree that university presses are capable of handling multiple submissions, but they receive fewer credible ones and have paid staff, typically with PhDs or expertise in the relevant fields. It's just not a relevant analogy, I don't think.

Posted by: Mark Fenster | Oct 22, 2015 8:32:14 PM

Derek, your first question is very intriguing -- and I think sometimes that is the dynamic in fact, i.e., for very well known scholars there is at least sometimes (at least to my knowledge, though this information is a bit dated) something of a right of first refusal to the home/top journal and/or a preliminary send-out to the top journals that comes across as an offer to place in their journal. I saw it happen, but again, that's dated. Institutionalizing a complete reversal so that all writers make offers to place would probably wreak havoc on the system -- I don't see how students could get their journals filled in a timely fashion (or get their own student-work done) if thousands of articles were submitted seriatim. But I may be wrong.

On the second question, yes, I think it's not kosher to submit an article to a journal if one would not, under any circumstances, publish in that journal. Just as it is not kosher to waste a school's time doing an interview, or call back, if one would not under any circumstances consider taking a position at the school. Likewise interviewing at a firm. Submitting to a low ranked journal for the exclusive purpose of using the acceptance as a bargaining chip strikes me as problematic. Using the offer as a way to entice others to make better offers strikes me as normal, what one does on the job market, what one does as a professional practicing lawyer with one's firm (after a certain level of success), and standard. But I don't think it is appropriate to waste an entity's time, a person's time, by getting an offer that one would not under any circumstances accept.

Posted by: nona | Oct 22, 2015 6:50:14 PM

It seems like the current selection process, in which allowing for expedites is the norm, is maintained in large part institutional understandings that that's just the way things are done. This allows us as professors to keep track of which journals are most prestigious for promotion/hiring purposes (shirking our duties if you prefer), helps us decide which of the tens of thousands of published articles to read, and establishes the general rules of the game.

The game is great for journals at the top but bad for journals at the bottom. I think the reason some feel so strongly about a lower ranked journal bucking the norm is that it could destabilize the entire, highly flawed, law review system that is a central to all of our careers.

Posted by: Andrew Kim | Oct 22, 2015 11:49:30 AM

I just posted a related blog explaining the Mississippi Law Journal's decision to apply a form of peer review for some of its articles.

http://prawfsblawg.blogs.com/prawfsblawg/2015/10/evolving-law-review-selection-processes-part-ii.html

Posted by: Andrew Kim | Oct 22, 2015 11:37:03 AM

Nona,

What if journals instead required that professors submit their papers in the form of an offer? Then, the journal has the choice to accept or reject the professor's offer.

Would you still say that it's not kosher for a professor to offer their article to a journal if they're not prepared for it to be published there?

Posted by: Derek Tokaz | Oct 22, 2015 8:52:05 AM

Ben, one of us is switching levels I suppose. I say it's you. Think of it this way: there's clearly an obligation to bring a birthday present if you're invited to a birthday party. But suppose 5 people decide to have a birthday party, and they all decide (including the person whose birthday it is) not to bring any presents. Would you describe that as "shirking their obligation to bring a present"? I think that's just a bizarre way of characterizing the situation.

Posted by: Bruce Boyden | Oct 22, 2015 2:40:02 AM

It frankly does not seem kosher to me to make an offer of publication if one is not prepared to honor acceptance of the offer. Would the law faculty who have endorsed this practice think it appropriate for law schools to make multiple simultaneous offers for the same tenure track spot?

A journal staff that feels it has been disadvantaged by the expediting process can simply shorten the deadline by which offers explode. That will force people to commit.

I think the journals that have done this should, in fact, be identified.

Posted by: nona | Oct 21, 2015 6:48:33 PM

Suzanna Sherry:
There's nothing that students can do about being students rather than experts in the field. They didn't set up the system and they can't dismantle it. Anon's (and Andrew's) complaint should be directed at the highly remunerated professionals responsible for the situation not the unpaid (charged) student employees.

Bruce Boyden:
Nice level of generality switch. The norm exists in the academy and is near universal. What are the unique features that justify the exception? As far as I can tell it exists because law entered the academia late and its members didn't and don't want to take the on additional work that conforming to the larger community's norms would involve. Shirking sounds perfect to describe that situation.

Posted by: Ben Dov | Oct 21, 2015 1:19:41 PM

Brad, they should winnow the pile the same way any knowledgeable person in the field does: Read the abstract and the first page to see if it's worth reading any further. Ninety percent of the time it won't be, as any knowledgeable person in the field would know. Oh, wait, these are second or third year law students, not knowledgeable people in the field -- and that's where the problem lies.

Posted by: Suzanna Sherry | Oct 21, 2015 12:07:16 PM

"shirking their peer review responsibilities"

If there's a norm that 0% of people in a particular field recognize or abide by, it's not much of a norm is it? An invisible norm spectre, perhaps, haunting us from other disciplines.

Posted by: Bruce Boyden | Oct 21, 2015 1:42:00 AM

Anon:

I don't think it is possible for a top review to give a fair reading to everything that comes in the door. How would you suggest they winnow the pile?

Posted by: brad | Oct 21, 2015 12:54:01 AM

WG,
It would be really nice if you identified who you are.

As for your comment, on which the rest of your remark is premised--"The dynamic now is that senior, renowned scholars can safely submit to multiple presses, but junior, unknown scholars are strongly encouraged to submit exclusively"--you are mistaken.

Posted by: Alexander Tsesis | Oct 20, 2015 10:45:31 PM

If law review editors really want to improve the system they should stop waiting for an expedite request before they will review a submission. I truly believe that a lot of the "better" journals will not even look at an article (unless it's written by a "name" or someone who teaches at a top 5 school) until they receive an expedite review request on that particular piece. Thus, we are forced to go in search of an offer that we can then use to get them to actually take a look at our work. If they didn't wait and just went ahead and looked at the piece, I (and assume many others) would submit to a much smaller number of journals.

Posted by: Anon | Oct 20, 2015 9:47:08 PM

I had some mild success last submission season creating a race among the journals.

I submitted my article to only good journals and said I would accept the first offer.

Of course, an article near the bottom of my list accepted first, but it was still a very solid journal and I lived up to my word and accepted.

I do wonder if that article would have placed higher in the normal submission process, but it is also possible that it would have placed lower because I think the promise to accept the first offer attracted the journal that accepted.

Posted by: AnonProf | Oct 20, 2015 9:40:14 PM

I am in almost complete agreement with James. Although I've done fine under the current system, symposia and the few peer-review options in the legal academy are becoming increasingly appealing to the current expedite game.

In fact, the role that current profs increasingly, but irregularly, play in the process may lead to the worst of both worlds: (a) the primary role of students in selection leads to a shortfall in expertise and perspective, while (b) the occasional dollop of professorial intervention in the process (sometimes in the form of a call to a student to help a friend or mentee) compromises the independence that defenders of student-selection use against a peer review system where "friends publish their friends."

Perhaps one friendly amendment to James's point: I think it would be a fine system if profs could submit to many journals, so long as they were willing to accept the first offer they receive.

But the most important takeaway is that we academics should not place much value on placement. All of these problems go away if we are willing to read the article, rather than using placement as a proxy for success in a context of student selection. Personally, I place less and less value on placement in deciding whether to read an article (unless it is in a peer-reviewed journal).

And I think the burden of changing the culture falls strongest on tenured professors, as well as hiring and promotion committees. Entry-level, untenured academics (and perhaps needing to lateral) can't be expected to risk their careers by trying to change the norms, no matter how silly they are. As part of the fortunate, tenured few, I'm all ears about some collective action.

Posted by: Jeff Pojanowski | Oct 20, 2015 8:23:37 PM

"Even academic presses permit multiple submissions, and the law review world should be no different."

This is less true than it used to be. The dynamic now is that senior, renowned scholars can safely submit to multiple presses, but junior, unknown scholars are strongly encouraged to submit exclusively (as in "we will not consider this unless it is an exclusive submission"). (And, of course, most peer-reviewed journals do not permit multiple submissions.) But I think the analogy to academic presses is still interesting: maybe law reviews should permit multiple submissions from big shots and require exclusive submissions from buckshots, where the law reviews decide which is which. It may grate that this seemingly creates two classes of law professors, but that's probably the world we already live in.

Posted by: WG | Oct 20, 2015 7:42:11 PM

James and I often see eye to eye, but not on this issue. I think people should be able to submit to multiple journals and to accept their best offer, including asking a journal for additional time to request other law reviews to complete their evaluations. Even academic presses permit multiple submissions, and the law review world should be no different.

Disciplines with exclusive submission norms empower editors to drag their feet; this would be particularly problematic in the legal academy where articles often concern time-sensitive issues. Even where the subject is not time-sensitive, authors seek timely publication not years of revision and inactivity.

When lawyers or academics search for jobs they can entertain more than one offer, the same should be true with article placement.

Posted by: Alexander Tsesis | Oct 20, 2015 6:41:08 PM

James Grimmelmann: Very well put.

Posted by: gdanning | Oct 20, 2015 2:04:19 PM

"Colleagues who don't look past the citation to the substance of an article when making such decisions are shirking their responsibilities as scholars and members of a learned profession by outsourcing their judgment to law students."

Is it any surprise from the same people who are almost alone in the academy in shirking their peer review responsibilities?

Posted by: Ben Dov | Oct 20, 2015 12:01:12 PM

I don't think these are just "exploding" offers, which have been around a long time. It's not just a short timeline; it's also the element that there are two (or more) offers for one slot, and the first one to accept gets it. So I would call it a "first come, first served" offer, or a "race" offer -- there's a competition element that doesn't exist in the usual exploding offer with a short timeline.

I also wonder if the "loser" in the race might still expedite off the offer, by saying "I've received an offer from X" with the deadline listed. If/when the offer is revoked, does the submitter need to let the expedited journals know that?

Posted by: Matt Bodie | Oct 20, 2015 11:36:22 AM

All journals should make short exploding offers. All journals should refuse to accept expedites. And all submitters should pledge to take the first offer they get (and keep their word).

These issues of law review ethics keep coming up. See also http://www.thefacultylounge.org/2013/04/bounties-for-prestigious-law-review-placements.html, http://prawfsblawg.blogs.com/prawfsblawg/2015/03/breaching-a-law-review-contract.html, and http://2d.laboratorium.net/post/116408726220/scholastica-sunt-servanda. But the issues are basically always the same. Massive simultaneous submission is a nightmare for overworked students, undercuts the quality of the review students are able to give, and injects a large quantity of randomness into the article placement process. Expedites are the most questionable piece of a questionable system, because they encourage professors to oversubmit strategically, which imposes burdens all up and down the line: on journals reviewing articles the author would never publish with them, on journals whose reviewing tables must respond to expedite requests, on authors who don't play the game and whose articles are shoved aside to respond expedites, and on authors who do play the game and lose a bit of their souls every time they do.

The idea that authors "careers often depend a lot on getting the best placements they can" benefit from the current system of shopping around is fallacious in two respects. First, authors collectively are no better or worse off: there are the same number of slots in the same journals. All that happens is that some authors gain at the expense of others -- while also making the process more stressful and arbitrary for all. And second, making people's careers hinge on their placements is a stinging indictment of how law schools hire and promote. Colleagues who don't look past the citation to the substance of an article when making such decisions are shirking their responsibilities as scholars and members of a learned profession by outsourcing their judgment to law students.

Posted by: James Grimmelmann | Oct 20, 2015 9:43:29 AM

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