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Monday, April 04, 2016

Should I Write a Response to a Law Review Article (or Allow the Law Review to Solicit Responses to Mine)? (Jr. Law Prawfs FAQ)

It seems a growing trend for law reviews to solicit responses to articles they have selected for publication, with the responses appearing in the print volume or the law review's online companion. (I'll have a separate, more general question about publishing in online law reviews later this month.) The editors of my institution's main journal have been doing this for at least a few years now. I think this innovation is a great addition to the legal academy, but the reasons for that would distract from the questions that prompt this post.

Instead, my questions are two-fold: (1) Should junior law professors agree to write such responses? (2) Should junior law professors agree to have the editors solicit responses to their own articles?

I ask in part because a couple years ago the student editors here mentioned that as part of their sales pitch to publish a junior scholar's article, they mentioned that they would love to solicit responses (either based on names the author suggested or faculty suggestions here). The author's response surprised them: The author didn't think it was a good idea pretenure to have a review of/response to the article in print.

Putting to one side extenuating circumstances (and the cardinal "Ask Your Colleagues" rule), I think this is the wrong instinct, especially pretenure. Responses draw more attention to your scholarship, get you more in-depth feedback during the editing process from an expert in your field, and often can lead to a mentor (or closer colleague) in your field. Pretenure I was fortunate to receive responses on two articles. (Thanks Emily and Leandra!) In both instances, I received critical feedback during the editing process that I would have preferred to receive while I could make changes, instead of in an external review letter for tenure (or in subsequent published interaction with my work). Both scholars have become close mentors, and at least three or four conference invitations have resulted from those relationships built. The observations in their responses featured prominently in the promotion and tenure committee's memo to the faculty and dean recommending tenure. 

Whether to respond to someone's article is a tougher question, especially pretenure, as there are of course greater opportunity costs involved (than just agreeing to allow a response to your own article). Since joining the law faculty here I've written four separate response essays, with a fifth coming out next month. I confess that I haven't agreed to do so with the strategic goal of strengthening my voice in the field or building my tenure file. Instead, I've done so because I thought it would be fun, by allowing me to build on my own work, helping me interact with scholars I wanted to get to know better, and/or just learning something new. My sense is that my faculty didn't know what do to with these shorter responses when considering my tenure file (though there's an argument to be made that central administration probably found the additional publications helpful, especially when they are accustomed to seeing many more publications in a tenure file in other disciplines).

In sum, allowing (indeed encouraging) editors to publish responses to your law review articles seems like a best practice for a junior scholar, but I'm not as sure about expending the time to publish responses to others' work. I've thoroughly enjoyed publishing responses and think responses generally add a lot of value to the legal academy (at least in my field), but one needs to consider the opportunity costs. I'm curious to hear what others think.



Posted by Chris Walker on April 4, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink


I am a 3L and aspire to become a law prof (criminal law, criminal procedure, constitutional law, professional responsibility). I wrote an article that was recently placed in a peer-reviewed journal. I want to approach the leading theorist who advocates for the theory I criticize in my article. My ultimate hope is that he will provide comments, or better yet, will write a reply to which I can reply. I have never spoken to this scholar, though I heavily cite him in my piece. Can any of you suggest how I might go about drafting this email?

Posted by: anon | Feb 27, 2017 7:57:42 PM

This may be another variation on the "here's what I would have written article" approach to reviewing other people's work. But the responses I tend to enjoy -- and the ones I have found to be most useful to developing my own research agenda -- are ones that take an idea or debate opened up in a principal article and build context by extending it to a different line of inquiry, context or body of law.

I think the way Sergio Campos, for example, responded to our article, The Agency Class Action, 112 Colum. L. Rev 1992 (2012), pre-tenure was a model approach. The thesis of our article was that agencies should adopt class action procedures and complex litigation procedures in their own hearings to improve efficiency, consistency and access. In his 15 page response, Class Actions All The Way Down, (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2219422), he took our arguments on their own terms, and then, explored something we lacked space to do: what such an approach meant for class action law in general. In so doing, he tied his conclusions into his own substantial and provocative body of work on class actions. The response not only added depth and context to our article, but did so in a way dovetailed with his own research and expertise. It was also very thoughtful and a fun-read.

I tried a similar approach responding to Jaime Dodge's Disaggregative Mechanisms, 60 Emory L.J. 1253 (2014). Jaime was a young scholar at the time, and the approach we took was to evaluate her claims that corporations were creating private dispute systems to avoid class actions in the context of recent regulatory efforts designed to accomplish the same goals. See Aggregation Goes Private, 63 Emory L. J. 1317 (2014). It was a nice way to hone ideas we were already finalizing in a separate article we were work-shopping at the time called The Corporate Settlement Mill, 101 Va. L. Rev. 129 (2015).

Posted by: Adam Zimmerman | Apr 4, 2016 5:54:54 PM

Thanks Michael, Orin, and Paul for the comments. As for junior scholars writing responses, I thought I'd share a bit more on the first response I wrote. I joined the faculty here straight from a law firm, and I attended the Big 10 Juniors Conference (a terrific conference held at Indiana -- Bloomington each August) shortly before classes started. Jud Mathews presented an administrative law paper that I just really enjoyed. I provided some comments at the conference, and he then suggested to the law review editors that they invite me to respond.

I made the response (http://ssrn.com/abstract=2205073) fit with my current research project on the ordinary remand rule. But the process of writing the response re-shaped my research agenda going forward and led to me surveying agency officials about what they actually do when drafting rules. That line of research was nowhere to be found in my research agenda when I went on the teaching market, and I can trace it back directly to the invitation to draft that short response (which, like Michael noted, did not take that long to write).

I'm guessing I may have been an atypical entry-level law professor these days, in that my initial research agenda was not that well developed. Though I'm guessing it is not atypical to shift the direction of one's research based on what others are writing in one's field. Whether to write a response pretenure is definitely a totality-of-the-circumstances inquiry, as Orin noted. But I might suggest that we undervalue the benefits. Plus, as I mentioned in my original post, it can be a lot of fun.

Posted by: Chris Walker | Apr 4, 2016 4:49:39 PM

I think you always should invite responses to your work. The more responses, the better. Some responses will be unilluminating -- too many take the form of "here's the article I would have written instead" -- but responses always add to the profile of the original article. The worst thing in academia is for no one to think your work is interesting or important enough to merit a response. From that perspective, all responses are a good thing. And if the responder comes up with great points, all the better: Sometimes a good debate can get going with the reply essay.

On the other hand, writing a response is a mixed bag for a junior author. It commits you you write on the subject of the original article, which may draw you away from something else more important to your work. It may also get less attention because it's a secondary work rather than a primary idea. (Granted, many deal with this by writing "here's the article I would have written instead" responses -- see above.) On the other hand, it may jump you into an important debate with a guaranteed placement. I agree with Chris, Michael, and Paul that it's more of a totality-of-the-circumstances question.

Posted by: Orin Kerr | Apr 4, 2016 2:40:37 PM

Seems to me that the writing a response question depends on how related it is to ones own work. I've written exactly one response (plug: http://www.texaslrev.com/1-the-rule-of-law-against-sovereign-immunity-in-a-democratic-state/ ), and the reason I wrote it was that it gave me an opportunity to develop a point from my rule of law research: that feels like an easy case. Ultimately it ended up being work I would have done anyway---in my book, it allowed me to just say "I defended claims X, Y, and Z here [cite]" rather than use precious pages defending it on scene.

The further a response gets from that model, the less likely it is to be worth the time?

Posted by: Paul Gowder | Apr 4, 2016 10:58:59 AM

I have been a reviewer and a reviewee.

I am grateful to those who have reviewed my work in responses. I see the responses as glorified blog posts, but they are often written by people who don't blog - which is a plus. They can be good for the reviewee, but only if people actually read them (which could be less likely than blog posts). That is, a short blurb on Prawfs ("this is interesting!") might bring more attention to a work than a long response. But the long response is more satisfying from a scholarly point of view. They can be bad for the reviewee - a bad review can make people think less. In this case, I'd rather have that in a response than a blog post anyway. Also, some people were probably already thinking it, so it's unclear that the downside is so great for the untenured.

As for a response writer untentured, I think it's one more thing on the CV (you don't put the length on the CV), so long as a) you would have read the target article closely anyway, b) you have something to say, b) you know what it is right away, d) you don't let the drafting slow you down in other pursuits. I recently wrote a response that took a couple days (2000 words or so). It's not my best work -- it is, after all, a glorified blog post. But it also has the credential of a law review publication and has since been cited in a cert petition. I'll take that payoff any day of the week for a couple days work. But given that not all responses have a payoff, you have to be willing to be a repeat player over the course of a long career.

Posted by: Michael Risch | Apr 4, 2016 9:49:58 AM

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