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Monday, September 03, 2018

A Personal Law Review Article Submission Narrative

0dc3c821-583e-4983-87ce-a89c1b7bef6b-originalBefore the end of the month, I mentioned to Howard the possibility I would have one more thing to say about what has become a theme this summer: the folkways of career advancement in legal academia and, in particular, the angst around law review submissions.  I recognize that my circumstances may not match anybody else's - I have a job, tenure, and I'm too old and sedentary to be thinking about lateral moves.  But, for what it's worth and with the consent of the editor of the journal in which I've just agreed to publish an article, I'm going to offer here a narrative about the submission process. 

My project this summer was a thought experiment that looked at the current embodiments of "smart contracts" - crypto-currencies as well as systems of legal documentation that can operate on blockchain technology - and considered what it would take for a traditionally negotiated complex and bespoke agreement to be "smart" in the same way.  (The title is a clue to the conclusion:  The Persistence of "Dumb" Contracts.).  I finished it to the point of public consumption and posted it on SSRN on June 25.  All things considered, it did pretty well there.  It's up to 222 downloads as of this morning, and made a bunch of the SSRN "Top Ten" lists.

In terms of hiring or tenure, it doesn't matter where I publish. I am pretty sophisticated about what is meaningful and what is not in a linear ranking like the US News list. But I'm as susceptible as the next person to the allure of glitzy branding, even if for no reason other than pure ego.  I am not on the faculty at a school whose letterhead sends student law review editors into spasms of fawning sycophancy.  Nor do I think my stuff is easy for student law review editors to assess.  (Dan Markel, of blessed memory, once told me I am "orthogonal" to most debates, something I took as a compliment even though I'm quite sure he didn't mean it that way. I think of it as "anything you can do, I can do meta.") Indeed, I've already noted that I've been asked to "peer review" articles for multiple super-elite flagship law reviews.  Each time I've done it, bitching all the while to my contact articles editors about the fact that my own submissions to their journals don't make it out of the submission inbox.

So, after the break, a short narrative about Persistence's submission odyssey.

As of June 25, I was suffering from the usual self-delusions, sitting on a completed 25,000 word article and thinking that it really did deserve to appear in a very "top" law review (see above).  I knew that submission season didn't begin until August 1 and that the peak for submissions would be roughly mid-August.

I had acted as a peer reviewer for an article in the flagship journal of a very highly ranked law school in the spring (the "XLR").  I contacted directly the XLR senior articles editor with whom I had dealt.  The editor encouraged me to submit when the journal opened on August 1, and said that if I gave a two week exclusive, the journal would guarantee a read of the piece.  That seemed to me a no-lose proposition because it would still allow me to submit in the Scholastica shotgun as of August 15 (by which date, I knew in those brief moments of being tethered to some fashion of cognitive lucidity, XLR would have rejected it).  

In early July, Northwestern announced an early submission period for those willing to give exclusives between July 15 and the end of the month.  Again, that struck me as a no-lose proposition, as upon its inevitable rejection at Northwestern, I could submit it to XLR as of August 1.  The inevitable Northwestern rejection came (a day early), and the piece duly went off to the XLR.  I related the story of its sojourn at the XLR here.  Suffice it to say that, as of the evening of August 14, I was ready to do the Scholastica thing.

Off it went in the wee hours of August 15 with a CV and a cover letter (including the classic sentences: "Let me put this bluntly.  Please put aside the usual heuristics based upon the letterhead of the submitting author.").  As I've noted, my peeve is submitting to journals and not being prepared to accept offers if they are the only ones you get.  On the first pass, I decided to do flagship journals of USNWR top 50 schools and two "specialties," the Columbia Business Law Review and the NYU Journal of Law & Business.  When I woke up in the morning, I had a few minutes of post-Nespresso clarity, after which I added submissions to the flagship journals of top 100 USNWR schools. I also decided, since I had submitted to specialty journals at Columbia and NYU, I'd submit to one "elite school" specialty journal that I had never seen before but which seemed appropriate for my topic: the Stanford Journal of Blockchain Law and Policy.  

That was it for the next couple weeks, except that I decided to submit directly to a couple flagships (you know who they are) that don't do the full Scholastica shotgun thing.  One of them (for whom I had done a peer review several years ago) rejected the piece within a couple days, but were thoughtful enough to look forward to my next submission.  Other than that, I lurked on the angsting post and contributed to the betterment of the world by recording my rejections on Sarah Lawsky's spreadsheet.  Based on what I was seeing in the comments, and knowing how little any of the tea leaves meant, I wrote something about my view of the realities of article placement.

I then experienced what I thought, at the time, was the corollary to my pet peeve about submissions, which I sometimes characterize as another one of Lipshaw's Laws.  It goes like this:  "If you submit only to law reviews you are prepared to accept, you can be sure that your only offer will come from the very last review you decided you were willing to put on the list."  As sure as the earth orbits the sun in an ellipse, I received a message last week through Scholastica from the very last review I had decided I was willing to put on the list, the Stanford Journal of Blockchain Law & Policy, that my article had received a favorable "peer review" and would be coming up for a vote of the board of editors.

What I am about to say may well be the epitome of rationalization or cognitive dissonance.  I did something I probably should have done at the outset, which is that I went to the SJBLP website.  There I discovered that the journal is not student-edited, that articles (i.e. pieces over 10,000 words) are sent out for peer review, and that the journal is affiliated with the MIT Media Lab and Stanford's Code-X (its Legal Informatics program).   Many people who are prominent in the "artificial intelligence and the law" community are affiliated with Code-X.

So we go back to the issue of substance, on one hand, versus heuristics and ego, on the other.  My piece got very granular about the nature of computer code and its relation to logic.  I said a lot of things about how computers work.  Even though I'm pretty good at math, I'm not a computer expert.  To have the piece accepted by a peer-reviewed journal in the academic "law and computation" community was, to me, a significant professional validation.  At that point, I realized that I would rather have it published there than in almost any other journal.  I say almost any other because the allure of publishing in a T14 or T17 journal, particularly when it is so rare on my faculty, was still strong.

Yesterday, the SJBLP accepted the piece with a short deadline.  Last night, I withdrew it from all but nine journals, and expedited the rest.  This morning, again with the benefit of Nespresso clarity, I decided (a) it was highly unlikely any of the nine would abide the short expedite deadline; (b) it was highly unlikely that any of the nine would make an offer, but (c) most importantly, I really did come to believe the best home for the piece was where it was likely to be read by people who care about and understand the issues.  Ego and heuristics be damned!  Shortly thereafter, I clicked the "accept" button on Scholastica and withdrew it from the remaining journals.

Were I "on the market" would I have thought this through in the same way?  I don't know.  Fortunately, I don't have to test my self-honesty against that counter-factual.  I am quite sure, however, that, as someone who is obliged to consider scholarship by hiring and tenure candidates, this narrative would make sense to me if offered up by one of them.  Here, I'm simply putting it out to the community as one datum, for whatever it's worth.

Posted by Jeff Lipshaw on September 3, 2018 at 02:07 PM in Getting a Job on the Law Teaching Market, Law Review Review, Life of Law Schools, Lipshaw | Permalink


Not to mention the editing problem. They aren't in a position to engage with the substance. I don't usually get my *writing* edited, but the requests for citation support often seem to reflect a lack of understanding. It's as if they are only capable of engaging at the sentence level (so, for instance, they miss the fact that the support is actually the next sentence of the text) (or they miss the fact that the sentence is really just stating an indisputable fact, such as the fact that June follows May).

Posted by: nana | Sep 4, 2018 4:26:21 PM

'Were I "on the market" would I have thought this through in the same way? I don't know.'

Of course not...

Posted by: Prof-Hopeful | Sep 4, 2018 3:46:19 PM

This nature of the LR system is absurd to anyone who hasn't been submerged in it for decades. I mainly work and publish outside of law reviews, and I admit peer review can really stink sometimes. I've had reviewers misunderstand work, hate it, etc. I've had work desk rejected, which means the editor gave it a cursory glance and deemed it not worthy of review. I've reviewed (with comments!) long and terrible pieces for journals. I still prefer peer review , warts and all, to the law review clustercrush.

2nd year law students are often very bright, but they shouldn't be doing review for academic publication. No other field I know of will let graduate students do peer review, and those are often people who have been researching in graduate school for 4+ years. Here we have review by the people who scored the best on their first year exams. And they are reviewing work that is almost certainly well beyond what they were exposed to in their coursework. People who have no clue what block-chain were likely tasked with evaluating your work. People who have never taken a course in empirical research methods are evaluating empirical work. Even within non-interdisciplinary work, do you really think first year contracts prepares a student to evaluate work on daily document fines in ERISA?

It's not the students' fault that they are put into this position. They get a million articles and do the best they can. It's the faculty, who don't want to take on the extra work of doing peer review, and the admin, who still think the greatest glory an article can achieve is that six kids at Harvard gave it a thumbs up. The incentives are perverse. Legal academia (like all academia) is prestige obsessed, so the only change can come from the top down. But faculty at the top have no reason to change the system, since once you're established the system makes publication easier and reduces your work. I've heard many senior faculty say they don't really care where they place their articles, which shows an awareness to the problems with the system, but that hasn't translated into meaningful change. It's a right proper mess.

Posted by: Kayfabe | Sep 3, 2018 4:24:22 PM

I enjoyed this, Jeff.

It's baffling that legal scholars allow untrained people to select their articles. It's like allowing 1st year grad students to select articles for APSR or AER.

Posted by: YesterdayIKilledAMammoth | Sep 3, 2018 4:09:31 PM

We need more peer reviewed law journals. I have a few friends who received their highest ever placements as VAPs at top schools. When they landed tenure track jobs at Tier 3 or 4 schools, their articles were suddenly "not as good." The letterhead bias is real and non-expert law students simply don't have the needed depth of knowledge.

Posted by: AA | Sep 3, 2018 3:46:06 PM


Posted by: anon nona | Sep 3, 2018 3:04:29 PM

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