PrawfsBlawg

Confusion of the Inverse??

At JOTWELL, Omri Ben-Shahar has a review of a forthcoming article in the Stanford Law Review claiming to have shown in a study that consumers are cowed by a consumer contract's fine print even if they believe they have been defrauded by the seller - i.e., have been expressed guaranteed A and learn later that (i) they aren't getting A, and (ii) the fine print says they have no legal right to A. (The reviewed piece is Meirav Furth-Matzin & Roseanna Sommers, Consumer Psychology and the Problem of Fine Print Fraud, 72 Stan. L. Rev ___ (2020)).

I've been blogging with outtakes from the not-quite-ready-for-prime time Unsure at Any Speed . Here the outtake intersects with another subject on which I have gotten involved recently: how to deal with the spread of detailed and unread consumer contract fine print, particularly given the ease by which it can appear to be made binding via internet click-throughs.

The question is not whether the conclusions Furth-Matzin and Sommers draw from their laboratory experiments are correct.  First, I don't know enough about qualitative research methods to assess their hypotheticals and questions to test subjects. Second, from what I can tell, they have given enough detail about the methodology to allow the tests to be repeated and therefore falsified. So I accept them for what they seem to say: people seem to take the fine print seriously even when they know they have gotten screwed.

My question is rather about empirical statements that underlie the study to begin with. Is it the case that widespread non-readership of fine print leaves consumers open to exploitation by unscrupulous firms? Is it true that sellers can outright lie about their products and services and then contradict the lie in the fine print?  The Stanford article takes the answer "yes" to those questions as a given, and then proceeds to assess the impact of fine print, given that there was fraud.  I cannot find, however, at least in the footnotes on the first six pages of the article anything other than a couple of anecdotes in support of the proposition that unscrupulous firms are a widespread problem.  I'm not saying they aren't; I just don't see any evidence one way or the other.

Is this an example of "confusion of the inverse," the subject of my outtake?

What I mean by "confusion of the inverse"

I cut from Unsure a detailed explanation of the "confusion of the inverse." It is, along with things like availability heuristic, the law of small numbers, hindsight bias, and confirmation bias, an example of the predictable divergences from actual probabilities to which Kahneman, Tversky, and others demonstrated humans are prone. My particular heuristic/bias peeve has to do with academic assumptions about the morality and competence of corporate oversight (Caremark doctrine for you governance nerds), exacerbated perhaps when, my having recently been been a corporate executive, a colleague blithely characterized corporate executives as "turnips" at a workshop shortly after I joined the faculty.

Here is the confusion of the inverse applied to my peeve.  Conditional probability is the quantification of the following question: given the probability that A is true (P(A)), what is the probability of B given A (P(B/A))?  The formula for deriving the answer is:

P(B/A) = [P(A/B) x P(A)]/P(B)

What we are trying to derive is the probability that we have a corrupt/incompetent board given that we have observed material corporate wrongdoing.

The probability of MW among the set of all corporations is P(A).

The probability of MW given CIB is P(A/B).

The probability of CIB is P(B).  Note that you can have a CIB even if you don't have MW, and you can have MW even if you don't have CIB.

Our formula now looks like this: P(CIB/MW) = [P(MW/CIB) x P(MW)]/P(CIB)

So...

Let's assume the following.  It turns out MW among all corporations is very rare.  Say P(MW) = .01 (one in a hundred).

The probability of material wrongdoing, however, is very high, IF you have a corrupt/incompetent board.  Say P(MW/CIB) = .95

The formula gives us the following numerator:  .95 (the probability of MW given that we have a CIB) x .10 (the probability we have MW).

But remember you can have a CIB even if you don't have MW, and you can have MW even if you don't have CIB.  So the denominator P (CIB) has to take all possibilities into account.

Hence, P(CIB) = [the probability that there is MW given CIB times the probability of MW] plus [the probability that there is MW with no CIB times the probability of no CIB].

So... P(CIB/MW) = (.95 x .01) /[(.95 x .01) + (.05 x .99)]

P(CIB/MW) = .16

So given that you observe material wrongdoing, the probability of also encountering a corrupt or incompetent board P(CIB/MW) is .16.  The confusion of the inverse is to believe P(CIB/MW) is .95.  It is not to say that you can't have corrupt or incompetent boards. It is to say instead that it is wrong to assume board members are turnips just because you observed material wrongdoing.

There are even more malignant examples of the confusion of the inverse.  When a police officer pulls over a car, what is the probability that there are drugs in the car, given that the driver is African-American?  When TSA does a search, what is the probability that the individual is a terrorist, given that he/she appears to be Middle Eastern?  When you are tested for a rare disease, what is the probability you have it, given that the test is positive?

Confusion of the inverse and contract fine print issues

As I said, I express no view on the study in the Stanford Law Review article.  I just don't see any evidence about the prevalence of out-and-out fraud. My intuition is there is probably less of it than the article seems to suggest.

That isn't to say there aren't real fairness issues with fine print. I have engaged with Rob Kar on his Harvard Law Review article with Margaret Radin, the thesis of which is to ground an attack on over-reaching boilerplate on a demarcation of the "true" agreement between the contract drafter and the consumer by way of Grice's "conversational maxims" and an actual shared meaning.  (Theirs is Pseudo-Contract and Shared Meaning Analysis; my response, just published in the Australasian Journal of Legal Philosophy (Vol. 43, pp. 90-105) is Conversation, Cooperation, or Convention? A Response to Kar and Radin.)

What I take from the Stanford Law Review study is that consumers aren't completely led down the primrose path by the fact of "fine print" - they expect there to be terms and conditions even if they don't read them.  The study seems to bear that out, even in the extreme where the consumer really does believe he/she/they got screwed. The real question is to what extent should the fine print be binding.  I agree with Omri that disclosure is not likely to be helpful - oy, more fine print disclaiming the fine print. Nor do I think trying to find the actual agreement or shared meaning is going to be fruitful.  Rather, there is a convention about what is and is not fair, and that probably ought to be reflected in regulation.

Submission Angsting Fall 2019

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.)

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron and Levit's extremely helpful guide to submitting to law reviews is available here (this is the January 2019 version). The article now also includes hyperlinks to law review websites.

For those wondering "when should I start submitting?", Scholastica has information through 2016. Here is a graph of submission dates as reported to PrawfsBlawg over three recent fall submission cycles. Remember that this information is drawn only from people who participate in PrawfsBlawg, who are not a random sample at all.

And here is a graph of submission dates of articles that were reported as accepted.

A histogram-ish graph comparing when all reported articles were submitted and when accepted articles were submitted shows that these two groups match up almost exactly. Accepted articles were less than 10% of the total reported articles, so it's not that accepted articles are swamping the data:

You can see the data I used for this here.

[Updated 7/26/19 to remove graph with messed up labels; updated 7/27/19 to add graphs with hopefully not-messed-up labels, but please let me know if you see something that looks wonky.]

 

Revising the Web of Science JCR ranking of law reviews

I want to conclude my discussion of the Web of Science JCR ranking of law reviews by offering several proposals for revising this ranking, which  draw on my co-authored paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber). I want to emphasize that our proposals are tentative because I don’t think there is a single right answer as to how to devise such a ranking. They also do not cover the whole range of problems associated with such rankings. One of the main lessons of our analysis is that the choices underlying any ranking should be made explicit and that anyone using them should make sure that these methodological choices fit his needs. A further important note concerns the purpose of our project. We do not call for the use of metrics in evaluating research. As I noted in my first post, our project is based on the observation that there is currently an increasing global pressure to use metrics in order to evaluate research (both at the individual and the institutional levels). This trend makes it worthwhile to critically examine the methodology and structure of such metrics.

Our proposal draws on our finding that that PR and SE journals form two separated communities (see the citation graph here); however, this inward tendency is more pronounced in SE journals, especially generalist ones. We found that SE generalist journals, direct and receive most of their citations to and from SE journals. This finding reflects, we argued, a tacit cartelistic behavior, which is a product of deeply entrenched institutional practices (for a defense of this argument see my previous post). Because the mean number of references in SE journals is about 2.5 times greater than the mean number of references in PR journals lumping the two categories can generate a distorted image of the ranking of law reviews (see my post for a demonstration of this effect).   

We believe that there are two main paths for revising the WOS ranking. The first path is to create two separate rankings, one for student-edited (SE) (non-peer-reviewed) journals, and another for peer-reviewed (PR) journals. This approach reflects the different writing and citation styles of the two categories and their strikingly different article selection practices. Creating two different rankings would also cancel out the advantage that U.S. SE journals have in a combined ranking structure. While this approach does have some logic, it is also problematic because the two journal categories, despite their differences, still belong to the same scientific domain, explore similar questions and have over-lapping audiences. It is also inconsistent with the current practice of all the existing global law reviews rankings.  A second strategy would continue the current practice of lumping the two journal categories in a single ranking, but would offer a way to counter some of the distortive effects of the current structure of the WOS ranking. A basic component of this strategy would be to adjust the value of citations received from SE journals. As I demonstrated in a previous post, adjusting the citations of SE journals by a factor of 0.4 significantly changes the relative ranking of PR journals. Using an adjusted impact factor would not amount to a satisfactory solution by itself. We think that a better strategy would be to combine an adjusted impact factor with an algorithm that takes into account the prestige of the citing journal drawing on some variant of the page-rank algorithm. The idea is to calculate the prestige of a journal through an iterative process that computes the “prestige” gained by the journal through the transfer of prestige from all the other journals included in the network through citations. JCR already offer a ranking based on such algorithm although it is not widely used. 

Another problem concerns the composition of the ranking sample. The WOS includes a relatively small sample of law reviews (147 out of more than 1600 law reviews based on our recent counting of the Scopus, WOS and Washington and Lee datasets). This reflects the WOS philosophy that only well established and high quality journals should be included in the list. While this approach has some merit the current list leaves out many good journals which should have been included (both SE and PR). Another problem concerns the inclusion of interdisciplinary journals (especially PR) such as the Journal of Law & Economics, Law and Human Behaviour and International Environmental Agreements-Politics Law and Economics. These are high-quality publications, which publish articles that are very related to law, but are dominated by economists, psychologists and political scientists that study law-related questions (although law profs do publish in these venues occasionally). Should these publications be included in the same list as more classical law journals? I believe that they should because they provide a high-quality venue for interdisciplinary work that discusses legal problems, but I can see good arguments for both sides.    

 

Reconstructed Ranking for Law Journals Using Adjusted Impact Factor

I would like to thank everyone for their comments and especially USForeignProf who added an important perspective. The main  motivation of our study was to expose the risks of blindly relying on rankings as a method for evaluating research. While we do not have data about the impact of metrics on the evaluation of research in law, we suspect that law schools will not be insulated from what has become a significant global trend. Our study highlights two unique features of the law review universe, which suggest that global rankings such as the Web of Science JCR may produce an inaccurate image of the law journals web: (1) the fact that the average number of references in SE articles is much higher than in articles published in PR journals; and (2) the fact that citations are not equally distributed across categories. In our study we tried to quantitatively capture the effect of these two features (what USForeignProf has characterized as the dilution of foreign journals metrics) on the ranking structure.

To demonstrate the dilution effect on the Web of Science ranking, we examined what happens to the impact factor of the journals in our sample, if we reduce the “value” of a citation received from SE articles from 1 to 0.4. We used the value of 0.4 because the mean number of references in SE journals is about 2.5 times greater than the mean number of references in PR journals (in our sample). For the sake of the experiment, we defined an adjusted impact factor, in which a citation from the SE journals in our sample counts as 0.4, and a citation from all other journals as 1. I want to emphasize that we do not argue that this adjusted ranking constitutes in itself a satisfactory solution to the ranking dilemma. We think that a better solution would also need to take into account other dimensions such as journal prestige (measured by some variant of the page-rank algorithm) and possibly also a revision of the composition of the journals sample on which the WOS ranking is based (which is currently determined - for all disciplines - by WOS stuff). However, this exercise is useful in demonstrating numerically the dilution effect. The change in the ranking is striking: PR journals are now positioned consistently higher. The mean reduction in impact factor for PR journals is 8.3%, compared with 46.1% for SE journals.  The table below reports the results of our analysis for the top 50 journals in our 90 journals sample (data for 2015) (the complete adjusted ranking can be found here). The order reflects the adjusted impact factor (the number in parenthesis reflects the un-adjusted ranking). In my next post I will offer some reflections on potential policy responses.

1. Regulation and Governance (10)
2. Law and Human Behavior (13)
3. Stanford Law Review (1)
4. Harvard Law Review (2)
5. Psychology, Public Policy, and Law (18)
6. Yale Law Journal (3)
7. Texas Law Review (4)
8. Common Market Law Review (22)
9. Columbia Law Review (5)
10.  The Journal of Law, Medicine & Ethics (29)
11. University of Pennsylvania Law Review (8)
12. Journal of Legal Studies (15)
13. Harvard Environmental Law Review (14)
14. California Law Review (6)
15. American Journal of International Law (19)
16. Cornell Law Review (7)
17. Michigan Law Review (9)
18. UCLA Law Review (12)
19. American Journal of Law & Medicine (36)
20. Georgetown Law Journal (11)
21. International Environmental Agreements-Politics Law and Economics (41)
22. American Journal of Comparative Law (25)
23. Journal of Law, Economics, & Organization (37)
24. Journal of Law and Economics (35)
25. International Journal of Transitional Justice (42)
26. Law & Policy (44)
27. Harvard International Law Journal (26)
28. Chinese Journal of International Law (47)
29. Journal of International Economic Law (48)
30. Law and Society Review (46)
31. Antitrust Law Journal (27)
32. Indiana Law Journal (24)
33. Behavioral Sciences & the Law (51)
34. Virginia Law Review (16)
35. New York University Law Review (17)
36. Journal of Empirical Legal Studies (39)
37. Leiden Journal of International Law (54)
38. University of Chicago Law Review (20)
39. Social & Legal Studies (58)
40. World Trade Review (61)
41. Vanderbilt Law Review (23)
42. Harvard Civil Rights-Civil Liberties Law Review (32)
43. Modern Law Review (63)
44. Annual Review of Law and Social Science (49)
45. European Constitutional Law Review (64)
46. Oxford Journal of Legal Studies (59)
47. Journal of Environmental Law (65)
48. European Journal of International Law (57)
49. Law & Social Inquiry (62)
50. George Washington Law Review (31)

Tacit Citation Cartel Between U.S. Law Reviews: Considering the Evidence

In my previous posts, which draw on my co-authored paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber)  I described how the metrics tide is penetrating the legal domain and also described the findings of our analysis of the Web of Science Journal Citation Reports of law reviews. We studied a sample of 90 journals, 45 U.S. student-edited (SE) and 45 peer-reviewed (PR) journals and found that SE generalist journals, direct and receive most of their citations to and from SE journals. We argued that this citation pattern is a product of tacit citation cartel between U.S. SE law reviews. Most of the comments focused on the following valid point: how can we distinguish between a tacit citation cartel and epistemically-driven scientific community (generated by common scientific interests). We argue, generally, that in tacit citation cartels, the clustering observed should extend beyond what can be explained by epistemic considerations, reflecting some deep-seated cultural and institutional biases.

In the paper we provide several arguments (both quantitative and qualitative) in support of our tacit cartel thesis. While none of them is conclusive in itself we think that jointly they provide a robust support for our thesis. First, we considered whether the clustering of U.S. SE journals could be explained by geographic proximity. Our sample included 57 U.S. journals consisting of all 45 SE journals and 12 PR ones. Statistical analysis reveals however that US PR journals do not receive more citations than non U.S. ones. Second, we also analyzed separately the sub-sample of generalist (PR & SE) journals but the citation pattern remained the same. Third, we considered the hypothesis that U.S. SE journals constitute a separate epistemic field – maybe due to their emphasis on U.S. law. We rejected this explanation on qualitative grounds, primarily because U.S. SE journals have become increasingly more theoretical and interdisciplinary over the past few years (Harry T. Edwards, ‘Another Look at Professor Rodell's "Goodbye to Law Reviews’; George L. Priest, ‘The Growth of Interdisciplinary Research and the Industrial Structure of the Production of Legal Ideas). This trend should make PR journals very relevant to U.S. legal scholarship. Fourth, one may try to explain the citation pattern by assuming a deep difference in the quality of the papers published in the two journal groups. We do not think this argument stands up to scrutiny.  First, the selection practices of SE journals were subject to strong critique (e.g., Richard A Posner, ‘The Future of the Student-Edited Law Review’ (1995)). This critique casts doubts on the thesis that there is a strong and systemic difference in quality of papers published in the two categories. We also examined this claim empirically by looking into the citations received by the 10 top-cited articles published in PR journals in our dataset. We found that even these highly cited papers received only a small percentage of their citations from SE journals.

Finally, we also considered the accessibility of PR journals in Lexis, Westlaw and Hein. We found indeed that these databases only offer access to approximately half of the PR journals (See Table F, technical appendix.) However, we do not think that this fact provides a convincing explanation to the phenomenon we observed. We believe that most U.S. law schools have access to digital depositories that allow access to the PR journals in our sample. A quick search in 3 US libraries demonstrates that (https://www.law.pitt.edu/research-scholarly-journals; https://library.columbia.edu/find/eresources.html ; http://moritzlaw.osu.libguides.com/legalresearchdatabases ). Rather than providing an explanation to the citation pattern we found, this claim constitutes a manifestation of the institutional culture that facilitates the citation bias we identify. The comment we received from an AnonymousLawLibrarian (suggesting that U.S. legal academics, unlike equivalent scholars in the social science disciplines, only use Westlaw/Lexis/Hein or in-discipline journal research) seems to support our interpretation.

We think that this citation pattern is epistemically problematic because it hinders the flow of ideas. Further (and independently of the question of whether or not we are right in describing it as a tacit cartel) it can also influence the journals’ ranking. I will discuss this latter question in my next post.  

A Personal Law Review Article Submission Narrative

Before 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.

How to make a better law review

Law reviews are doing more than ever these days. They don't simply solicit articles for publication and host an annual symposium. They have social media accounts, podcasts, online supplements, exclusive submission windows, and more.

But with more than ever, I wonder if somethings journals aren't simply doing something because they feel they ought to be doing something. So, what does a good law review do these days? Following up on some good thoughts at The Faculty Lounge a couple of years ago, I offer my own here. A good law review should think about a few things--and perhaps even do some of them. (I should add that I'm not an advisor to any journal but have served in that role in the past.)

But full disclosure to set expectations: I'll avoid the biggies, like "revamp the submission cycle"....

1. A good law review starts with a good website. It means it has regularly updated content and decent navigation. It means it has a good RSS feed that pipes out content. If a law review website is poor, social media cannot cure it. If your website is primarily stock photos, or a sub-page of your law school's site... it's probably not interesting anyone.

And the failure to update content? Even worse. You've exerted such terrific time, effort, and resources to select, edit, and publish this content. Why, then, in the last mile--really, the last few yards--fail to put it out there for everyone to read it?

I'm sure some readers scoff, "I thought RSS was dead?" Not for power users--that is, the people who are the most likely to find and share your content. Which group of users do you anticipate is most likely to share your work: the casual observer who stumbles on your page one day, or the person who sees the resent articles pop up in her Feedly feed in almost real time? (James Grimmelmann's comments at The Faculty Lounge capture this quite well.) I've worked to aggregate some RSS feeds of journals, but you can see some don't have one, and I've only just begun.

2. Promote articles, not journal issues. I know that law review staffers are obsessed with the issues in their volume. When an issue comes out in print, it's a really big deal. It's understandable to get excited about it! But think about how promotion in social media compares when promoting issues, not articles.

To pick one account's tweets consider the information communicated with a tweet like this:

The Board of Editors is pleased to present Issue 1 of the 2016 Volume of the Illinois Law Review: https://t.co/3ulNw54Bjc

— Illinois Law Review (@UIllLRev) February 3, 2016

This tweet is just fine. But... what's in the issue? That's what people care about! It might be that some people will engage with this tweet. But on its face, it's not immediately clear who published what, or why someone would care--except if you were really intent on viewing a new (generic) issue of the law review. Consider instead:

Should daily fantasy sports be considered gambling or games of skill? @MarcEdelman explores this divisive question: https://t.co/atQkVwBL8n

— Illinois Law Review (@UIllLRev) February 11, 2016

Notice what's included and not included. First, it includes a description of the piece, not the title. Titles of articles can be fine, but sometimes they are insufficiently descriptive, or too bulky for the medium. Second, the author is tagged! That's important, because, let's face it, my vanity on social media is the driving force for creating and promoting content (alas). But it also alerts your authors that you're out their promoting their work--and that it's available on their good, up-to-date website. If you can tag the author's institution (particularly if that author lacks a social media account), all the better.

3. Timing matters. I'm fairly consistently surprised to see my RSS feed update at 12:30 am ET on a Sunday, or tweets pushed out at 10 pm on a Friday. There are optimal times to release and promote content--usually peak business hours during weekdays. Pausing a few hours or days to update the website, or using a timed Twitter platform, can help maximize the opportunity to share content.

4. Consider whether and why other content exists. I've listened to many podcasts put out by journals. I've seen online supplements born, renamed, languish, reborn, reformatted, and languish again. There are law review blogs, or Twitter symposia, or live streaming symposia. In short, journals are doing lots of things we might loosely tag as "innovation."

But, why? To what end? Often, this other content feels like innovating for innovation's sake. It's sometimes tacked on, as if it isn't integrated with the rest of the stuff the journal is doing. Before launching into one of these labor-intensive endeavors, it might be worth considering what these other items of content are supposed to be doing. That I can't answer--it's an existential question that may vary from journal to journal. But, it can probably also help with the next piece....

5. A faculty advisor must help continuity and vision. Law reviews are student-run, and I think that's a good thing. (I won't wade into the debates here and elsewhere months ago about peer-reviewed v. student-edited; I'll leave my comments at this!) But often, new projects like podcasts, more novel content like online supplements, or even more longstanding elements like using the Twitter account and updating the website--often, these things can get lost in the transition from one editorial board to another. The vision might be lost, because the vision didn't reside in the journal but with one 3L who's moved on. The content might suffer because information simply isn't transferred from one board to another.

I'm sure faculty advisors have wildly different relationships with their journals. But from an institutional perspective of the law school, the law review can be one of the most valuable and visible assets of the school. It's also one of the greatest ways the school contributes to the scholarly enterprise and looks to create new knowledge. While I strongly endorse student-run journals, faculty guidance and leadership can help make sure that these journals are doing their very best work.

Many journals do many of these things quite well. But maybe there are a few things here that could help some journals improve.

Submission Angsting Spring 2018

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron & Levit's extremely helpful guide to submitting to law reviews is available here (this is the January 2018 version). Rostron and Levit have also posted a list of links to law review websites.

I cannot link to the last page of comments, due to a Typepad change.

Northwestern Law Review Exclusive Submissions - Spring 2018

Northwestern Law Review's exclusive submission window for Spring 2018 law review submissions will be open from January 1, 2018, to January 14, 2018. Publication decisions will be guaranteed by February 5, 2018. All the information about this exclusive submission window is available on the Northwestern Law Review website.

Law Review Submission Angsting Thread: Fall 2017

It looks to be about that time of year again.  Post here for comments about your law review submission experiences.  I'm wondering if the Northwestern exclusive review, with its decisions made by July 28, has moved up the process a bit.

UPDATE: You can get to the last page of the comments here.

Submission Angsting Spring 2017

We are going old school with the angsting thread -- back to its beginnings, when Redyip, the great bird of the gods of Zarcon, first alighted into the sky to signal the beginning of the law review submission season.  I'm not sure if Redyip has provided the signal to Orin yet; we await further enlightenment. But ye may gather here, on this angsting thread, to provide such news: have journals awakened from their winter slumber to renew their manifold judgments?  Hark, traveler! -- do I see the winged colossus?  

Click here to go to the most recent comments.

Northwestern Law Review exclusive submissions

Northwestern University Law Review has instituted a system of exclusive submissions for the upcoming cycle. Authors can submit exclusively until January 28 and will receive a response by February 17. It is a good way to get a jump on the submissions cycle. Full details on submissions here.

Submitting to online journals

Courtesy of University of Illinois Law Review, her is a new ranking of online journals, along with links to the submission pages for each. Here is the list, including hyperlinks, from SSRN.

Commitment to furthering social change

A friend at another law school shared the following (the story is made anonymous, and non-gender-specific, for the benefit of all parties):

My friend wrote an empirical article, concluding that the data did not support removing military commanders from the courts-martial system in sexual assault cases. She/he submitted it to a law-and-social-policy/social-change journal at a t20 school. The journal rejected it, writing the following: "Our editors felt that your piece provided interesting data analysis; however, we do not feel that your framing of the issue and your ultimate conclusion align with our journal's commitment to furthering social change."

This is a staggering thing for an academic journal to say out loud, even if many people believe such biases exist in publication decisions, in law and other disciplines. It is more staggering for an empirical article. If editors disagree with an author's conclusions in a normative or theoretical piece and reject it on that basis, that is troubling, although separating evaluations of quality from agreement with the conclusion is a difficult intellectual exercise. To reject an article because the conclusions from the empirical data do not "align" with a commitment to "furthering social change"--while not questioning or challenging either the data or the data analysis--is nakedly anti-intellectual. Not to mention counter-productive: If you are committed to furthering social change in the area of military sexual assault, wouldn't you want to rely on data that helps identify the best solution to the problem and directs you away from solutions (pulling commanders from the process) that will not resolve the problem? (This problem is not limited to law, but extends to the hard sciences).

Google Scholar Law Review Rankings - 2016

Google has published its 2016 Google Scholar Metrics, just in time for the fall law review submissions angsting season to begin (I see that in response to folks already calling for a new Angsting Thread, Sarah has just posted the Fall 2016 Angsting Thread slightly ahead of schedule). I've placed a table with the 2016 Google Scholar Rankings for flagship/general law reviews below the break (with comparisons to the 2015 ranking). I started tracking these Google Rankings as part of the Meta-Ranking of Flagship Law Reviews that I first proposed here at Prawfs in April (combining USN, W&L, and Google scores into a single ranking). And, as both Google and W&L have updated their rankings/metrics since that time, I'm also working on an updated meta-ranking in time for the opening of the fall submissions period (just for fun).

I realize most people probably don't make any submissions decisions based on the Google Rankings (and the methodology does have its limitations; and one startling change in the 2016 data is that the North Carolina Law Review, ranked #21 in 2015, doesn't even show up in Google's metrics this year for some reason - perhaps their article repository no longer meets Google's inclusion criteria), but I do think it provides an interesting metric for measuring law journal impact, alongside the W&L rankings, particularly for someone like me who publishes in both law reviews and peer-reviewed journals in other disciplines. I like that Google Metrics can provide some idea of how a particular range of law reviews measure up to a social science journal - and vice-versa - in terms of scholarly impact. The W&L ranking doesn't provide much of that information, as it is generally limited to law reviews; US News college rankings don't apply; and the Journal Citation Reports rankings by Thompson Reuters doesn't have very good coverage of legal journals.

However, with Google's metrics I can see e.g., how the social science journals I've published in (or am thinking about submitting to) stack up against law reviews. For example, I can see that Government Information Quarterly has a slightly higher average Google Metrics score (63; h5-index of 51, h5-median of 75) than the Harvard Law Review (61; 40/82), that The Information Society (26.5; 21/32) ties with the UC Davis Law Review (26.5; 20/33) and the Ohio State Law Journal (26.5; 18/35), and that Surveillance & Society (21; 18/24) ties the Houston Law Review (21; 16/26). I think this can be helpful for gauging where to submit research that crosses disciplinary boundaries, but I see how it might not be so useful for someone who only wants (or needs) to publish in law journals. I'm curious if any readers find the Google metrics useful for comparing law/non-law journals or for thinking about (law) journal submissions generally.

2016 Google Scholar Law Review Rankings

Includes only flagship/general law reviews at ABA accredited schools (I think I've captured (almost) all of these, but let me know if I've missed any). Rankings are calculated based on the average of Google's two scores (h5-index and h5-median), as proposed here by Robert Anderson. The final column shows how much a journal's rank has changed in 2016 versus last year's ranking (0 indicates no change, a positive number indicates the ranking has gone up in 2016, while a negative number indicates a drop in ranking in 2016).

Journal	Rank (2016)	h5-index	h5-median	Average Score	Rank (2015)	Rank Change
Harvard Law Review	1	40	82	61	1	0
The Yale Law Journal	2	41	61	51	2	0
Columbia Law Review	3	36	61	48.5	3	0
U. Pennsylvania Law Review	4	35	61	48	5	1
Stanford Law Review	5	33	54	43.5	4	-1
The Georgetown Law Journal	6	33	52	42.5	6	0
Texas Law Review	6	35	50	42.5	8	2
New York U. Law Review	8	28	53	40.5	11	3
Cornell Law Review	8	31	50	40.5	13	5
California Law Review	10	31	46	38.5	9	-1
Virginia Law Review	10	32	45	38.5	10	0
Michigan Law Review	12	30	44	37	6	-6
Minnesota Law Review	13	29	44	36.5	12	-1
U. Chicago Law Review	14	29	43	36	16	2
UCLA Law Review	14	29	43	36	15	1
Vanderbilt Law Review	16	30	36	33	16	0
Fordham Law Review	16	28	38	33	22	6
Notre Dame Law Review	18	26	39	32.5	18	0
Indiana Law Journal	18	26	39	32.5	26	8
Duke Law Journal	20	26	38	32	13	-7
Northwestern U. Law Review	20	26	38	32	22	2
Boston U. Law Review	20	28	36	32	26	6
William and Mary Law Review	20	26	38	32	19	-1
Iowa Law Review	24	27	36	31.5	20	-4
Boston College Law Review	25	25	35	30	26	1
Florida Law Review	25	22	38	30	22	-3
The George Washington L. Rev.	27	25	34	29.5	31	4
Emory Law Journal	28	19	39	29	30	2
U. Illinois Law Review	29	22	34	28	29	0
Hastings Law Journal	29	20	36	28	32	3
U.C. Davis Law Review	31	20	33	26.5	43	12
Ohio State Law Journal	31	18	35	26.5	43	12
Arizona Law Review	33	19	33	26	35	2
Maryland Law Review	33	22	30	26	45	12
Southern California Law Review	35	22	29	25.5	37	2
Washington and Lee Law Review	35	21	30	25.5	47	12
Seattle U. Law Review	37	18	32	25	38	1
Cardozo Law Review	38	21	28	24.5	33	-5
Washington U. Law Review	39	20	28	24	35	-4
Wake Forest Law Review	39	18	30	24	38	-1
Wisconsin Law Review	41	20	27	23.5	22	-19
Washington Law Review	41	19	28	23.5	49	8
American U. Law Review	43	19	27	23	40	-3
Connecticut Law Review	44	19	25	22	40	-4
George Mason Law Review	45	18	25	21.5	49	4
Houston Law Review	46	16	26	21	58	12
Alabama Law Review	47	17	24	20.5	49	2
Seton Hall Law Review	47	14	27	20.5	52	5
South Carolina Law Review	47	16	25	20.5	68	21
Brigham Young U. Law Review	50	17	23	20	52	2
Penn State Law Review	50	17	23	20	58	8
Colorado Law Rev.	52	15	24	19.5	47	-5
Pepperdine Law Review	52	15	24	19.5	52	0
Oregon Law Review	52	14	25	19.5	72	20
UC Irvine L. Rev.	55	16	22	19	84	29
Lewis & Clark Law Review	55	16	22	19	33	-22
Santa Clara Law Review	55	17	21	19	64	9
Howard Law Journal	55	14	24	19	55	0
New York Law School Law Review	55	15	23	19	58	3
Georgia Law Review	60	14	23	18.5	55	-5
Tulane Law Review	60	14	23	18.5	64	4
Arizona State L. Journal	62	16	20	18	93	31
U. Miami Law Review	62	14	22	18	77	15
Case Western Reserve Law Review	62	15	21	18	81	19
Georgia State U. Law Review	62	15	21	18	72	10
U. Kansas Law Review	66	13	22	17.5	68	2
U. Richmond Law Review	66	14	21	17.5	77	11
Utah Law Review	68	14	20	17	72	4
Temple Law Review	68	14	20	17	95	27
San Diego Law Review	68	14	20	17	86	18
Loyola U. Chicago Law Journal	68	16	18	17	81	13
Marquette Law Review	68	14	20	17	95	27
Buffalo Law Review	73	13	20	16.5	58	-15
Nevada Law Journal	73	13	20	16.5	86	13
Louisiana Law Review	73	13	20	16.5	64	-9
Mitchell Hamline Law Review	73	14	19	16.5	95	22
Florida State U. Law Review	77	14	18	16	68	-9
Loyola of Los Angeles Law Review	77	11	21	16	46	-31
Missouri Law Review	77	12	20	16	55	-22
DePaul Law Review	77	14	18	16	81	4
Brooklyn Law Review	81	14	17	15.5	77	-4
U. Cincinnati Law Review	81	14	17	15.5	68	-13
Chicago-Kent Law Review	81	13	18	15.5	58	-23
Michigan State Law Review	81	14	17	15.5	118	37
Mississippi Law Journal	81	11	20	15.5	95	14
New England Law Review	81	13	18	15.5	95	14
Pace Law Review	87	11	19	15	86	-1
Washburn Law Journal	87	11	19	15	84	-3
Duquesne Law Review	87	11	19	15	95	8
SMU Law Review	90	10	19	14.5	95	5
Saint Louis U. Law Journal	90	12	17	14.5	95	5
Vermont Law Review	90	12	17	14.5	40	-50
Capital U. Law Review	90	13	16	14.5	113	23
Denver U. Law Review	94	12	16	14	64	-30
Indiana Law Review	94	12	16	14	72	-22
Nebraska Law Review	94	12	16	14	113	19
Hofstra Law Review	94	12	16	14	104	10
West Virginia Law Review	94	12	16	14	123	29
Albany Law Review	94	12	16	14	58	-36
Creighton Law Review	94	11	17	14	86	-8
U. St. Thomas Law Journal	94	12	16	14	113	19
Tennessee Law Review	102	11	16	13.5	93	-9
Texas Tech Law Review	102	12	15	13.5	104	2
Suffolk U. Law Review	102	12	15	13.5	109	7
Valparaiso U. Law Review	102	12	15	13.5	122	20
Catholic U. Law Review	106	10	16	13	113	7
U. Pacific Law Review	106	10	16	13	118	12
Southwestern Law Review	106	10	16	13	109	3
Villanova Law Review	109	11	14	12.5	86	-23
UMKC Law Review	109	10	15	12.5	86	-23
Mercer Law Review	109	10	15	12.5	126	17
Cleveland State Law Review	109	11	14	12.5	123	14
John Marshall Law Review	109	9	16	12.5	118	9
Touro Law Review	109	10	15	12.5	128	19
Rutgers U. Law Review	115	10	14	12	86	-29
Akron Law Review	115	11	13	12	72	-43
Drake Law Review	115	10	14	12	95	-20
Kentucky Law Journal	118	9	14	11.5	118	0
Syracuse Law Review	118	9	14	11.5	104	-14
Maine Law Review	118	10	13	11.5	104	-14
Quinnipiac Law Review	118	9	14	11.5		No 2015 Rank
Idaho Law Review	118	8	15	11.5	104	-14
Wyoming Law Review	118	9	14	11.5	128	10
Chapman Law Review	118	9	14	11.5	109	-9
Ohio Northern U. Law Review	118	8	15	11.5	113	-5
Southern Illinois U. Law Journal	126	8	14	11	131	5
Northern Kentucky Law Review	126	9	13	11	131	5
Oklahoma Law Review	128	10	11	10.5	137	9
U. Toledo Law Review	128	10	11	10.5	123	-5
Arkansas Law Review	130	9	11	10	77	-53
Loyola Law Review	130	9	11	10	131	1
U. Arkansas Little Rock Law Review	130	9	11	10	142	12
St. John’s Law Review	133	8	11	9.5	137	4
The Wayne Law Review	133	8	11	9.5	142	9
South Dakota Law Review	133	7	12	9.5	135	2
U. Memphis Law Review	136	8	10	9	126	-10
Campbell Law Review	136	7	11	9	131	-5
St. Mary's Law Journal	136	8	10	9		No 2015 Rank
Roger Williams U. Law Review	136	8	10	9	142	6
Baylor Law Review	140	7	10	8.5	147	7
Willamette Law Review	140	8	9	8.5		No 2015 Rank
Widener Law Journal	140	8	9	8.5	137	-3
Arizona Summit [Phoenix] Law Review	140	7	10	8.5	147	7
FIU Law Review	144	7	8	7.5	147	3
Tulsa Law Review	145	6	8	7	142	-3
Montana Law Review	145	6	8	7	150	5
North Dakota Law Review	145	5	9	7	153	8
Stetson Law Review	148	5	8	6.5	137	-11
Texas A&M Law Review	148	6	7	6.5	137	-11
South Texas Law Review	148	6	7	6.5	150	2
Thurgood Marshall Law Review	148	6	7	6.5	150	2
Oklahoma City U. Law Review	152	5	7	6	109	-43
U. Hawaii Law Review	153	5	6	5.5	153	0
North Carolina Law Review					21	No 2016 Rank
Mississippi College Law Review					128	No 2016 Rank
U. Louisville Law Review					135	No 2016 Rank
Nova Law Review					142	No 2016 Rank
U. Detroit Mercy Law Review					153	No 2016 Rank
U. Pittsburgh Law Review						Not Ranked
U. San Francisco Law Review						Not Ranked
New Mexico Law Review						Not Ranked
Gonzaga Law Review						Not Ranked
Drexel Law Review						Not Ranked
U. Baltimore Law Review						Not Ranked
Northeastern U. Law Journal						Not Ranked
U. New Hampshire Law Review						Not Ranked
Charleston Law Review						Not Ranked
CUNY Law Review						Not Ranked
Cumberland Law Review						Not Ranked
U. Dayton Law Review						Not Ranked
California Western Law Review						Not Ranked
St. Thomas Law Review						Not Ranked
Widener Law Review						Not Ranked
Northern Illinois U. Law Review						Not Ranked
Regent U. Law Review						Not Ranked
Western New England Law Review						Not Ranked
Golden Gate U. Law Review						Not Ranked
Florida Coastal Law Review						Not Ranked
Barry Law Review						Not Ranked
Whittier Law Review						Not Ranked
Thomas Jefferson Law Review						Not Ranked
John Marshall Law Journal						Not Ranked
Southern U. Law Review						Not Ranked
Elon Law Review						Not Ranked
North Carolina Central Law Review						Not Ranked
Appalachian Journal of Law						Not Ranked
U. District of Columbia Law Review						Not Ranked
Western State U. Law Review						Not Ranked
Ave Maria Law Review						Not Ranked
Thomas M. Cooley Law Review						Not Ranked
Liberty U. Law Review						Not Ranked
Florida A & M U. Law Review						Not Ranked
Faulkner Law Review						Not Ranked
Charlotte Law Review						Not Ranked

Submission Angsting Fall 2016

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron & Levit's extremely helpful guide to submitting to law reviews is available here (this is the July 2016 version). Rostron and Levit have also posted a list of links to law review websites.

Here is the final page of comments.

What Do People Submitting to Law Reviews Want?

From time to time, PrawfsBlawg threads have included thoughts about what those submitting to law reviews want from law reviews. (For example, to receive rejections, rather than just no response at all.) Now that we're getting into the thick of law review submission season, I'm curious whether people have thoughts about what they'd like from Scholastica, Expresso, and other future tools used to submit to law reviews. ("Free submissions" is definitely one thing -- and a valid thing -- other thoughts also very much welcomed....)

The Best Time To Submit Is Precisely 10:40 on Feb. 23

The Yale Law Journal just released some interesting statistics about the submission season for the past 3 years.  Some highlights:

• In the aggregate, the heaviest week of submissions is Feb. 15-21.  The second heaviest is Feb. 22-28
• The number of submissions in early- to mid-March is still significant
• A majority of offers are made in "March or later"
• Submitting too early can hurt your chances, at least if you are not giving them an exclusive window of a couple of weeks and another journal makes an offer first

So if you don't plan to submit for a few weeks, cease your angsting, at least for now.  (If you really feel the need to angst, head over to the Angsting Thread About Angsting Threads).  

Also relish in the fact that, with 16-20 pieces per Volume, you have about a 0.08%-0.10% chance of landing a spot!  That's better than the Powerball!

And now back to writing about election law.  I'll see you soon.  

[Update: Precisely one minute before I submitted this post, Richard posted a much more thorough and thoughtful analysis of the Yale Law Journal's data. So go to his post if you want some real substance on these issues.] 

Submission Angsting Spring 2016

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that the "days to rejection" and "days to acceptance" columns are locked because they auto-calculate. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.

Rostron & Levit's extremely helpful guide to submitting to law reviews is available here.

Here is the final page of comments.

Update: I have added a column to the spreadsheet entitled "Username" (current column H, after "Days to Acceptance"). This is of course totally optional, but a way to make keeping track easier. For example, if you pick a username (for some reason the sample username "Floop" keeps coming to my mind), you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

 

On a lonely island with my two spaces

My perception, based on anecdotal but wide-ranging instances over the last few years, is that most folks use one space after a sentence.  Moreover, those who speak on the subject dismiss the two-space crowd as fuddy-duddies with little or no aesthetic sense.  I must confess--or, I guess it's obvious from this post--that I am a two-spacer, and I really do not want to change.  I *like* the two spaces -- it signals a break, a pause in the action appropriate to the end of the sentence.  Do sentences not matter?  Why should they just get one space like every other word?

Anyway, my questions are these: are there any other two-spacers out there?  If so, why are you still a two-spacer?  And if you are a one-spacer, do you view us two-spacers as relics of some ancient world?  More pragmatically, do law review editors hold two-spacing in poor regard?  Or is it just something they sigh about when they have to do a "find and replace?"

Playing With Al Brophy's Alternative Law School Rankings - Student Centered vs. Student/Scholarship Centered Results

I have all sorts of analytic issues with law school rankings - e.g., reputation means a lot, but it really is based on feedback loops and is really, really sticky; linear rankings by number hide the fact that it's a bell curve on things like reputation, and linear differences in the middle of the pack don't mean much). But it's still interesting navel gazing, and makes a big difference (I think) in professional and academic careers.

Yesterday, Al Brophy (UNC) posted an update to his alternative to USNWR, Ranking Law Schools, 2015: Student Aptitude, Employment Outcome, Law Review Citations.  He uses three variables, entering median LSAT score, employment outcomes (JD required; no school-funded jobs; no solo practitioners), and citations to the school's main law review.  That latter one is interesting because it doesn't measure the scholarly influence of the school's faculty, but instead the school's brand for purposes of law professors placing their articles.  

Al did two analyses, one using only the student variables (LSAT and employment - the "2 var" rank) and one using all three (the "3 var rank").  His Table 2 shows the relative 2 var and 3 var rank for each school, but his comparison are all as against USNWR.  I was interested in "law review lift" versus "law review drag."   So I made a list from Al's Table 2, arbitrarily taking a difference of ten or more as the cutoff.

After the jump, you can see a list of schools whose ranking with their law reviews improves by ten spots or more (law review lift) or whose ranking drops by ten spots or more when the law review gets included (law review drag).  I'll leave it to you to theorize about meaning, if any.

Law review stats enhance student stats ten spots or more

Illinois

Indiana

Florida State

Houston

Utah

George Mason

Cardozo

Cincinnati

Lewis & Clark

Pepperdine

Hastings

Connecticut

San Diego

Brooklyn

Chicago-Kent

Albany

Indiana - Indianapolis

Hofstra

Oregon

DePaul

William Mitchell

American

Catholic

Howard

Akron

Michigan State

Marquette

Seattle

Cleveland State

Vermont

Santa Clara

New York Law School

Ohio Northern

Widener (Delaware Journal of Corporate Law)

McGeorge

Toledo

San Francisco

Suffolk

 

Law review stats drag student stats ten spots or more

 

Georgia

Arizona State

UC-Irvine

Kentucky

Baylor

Georgia State

New Mexico

Oklahoma

Montana

Tulsa 

New Hampshire

Florida International

Rutgers-Camden

Drexel

Syracuse

Hawaii

Idaho

Stetson

South Dakota

Campbell

Duquesne

Chapman

Northern Illinois

North Dakota

Samford (Cumberland)

CUNY

Wyoming

Nova Southeastern

Texas A&M

Oklahoma City

Arkansas-Little Rock

Dayton

Liberty

Elon

Faulkner

Florida A&M

Some Results from the Law Review Submission Practices Survey

Several drafts of my final exam ago, at the beginning of the month, I sent around a survey of law review submission practices.  Our response rate was lousy, and we have no way of knowing how representative the responses thus far are.  (Editors: still want to fill out the survey?  You can go here, and I'll post updates at the Law & Economics Prof Blog).   But, for they're worth, here's what we learned.  

First, there will be a fall season.

 

6. When do you expect to begin reading submissions for the fall cycle?

a. Before Aug. 1	6	42.9%
b. Aug. 1 - Aug. 15	7	50%
c. Aug 16 - Aug. 30	1	7.1%
d. Sept. 1 - Sept. 15	0	0%
e. After Sept. 15	0	0%

7. What portion of your available slots remain open for summer and fall placements?

a. None	0	0%
b. 1 or 2 slots	3	20%
c. Less than a third	3	20%
d. Between one-third and two-thirds	6	40%
e. More than two-thirds	3	20%

Next, the spring season at reporting journals starts & ends earlier than I thought.

1. When did you begin reading submissions for this spring cycle?

a. before Feb. 15	10	66.7%
b. Feb 15 - Feb. 28	2	13.3%
c. Mar. 1-Mar. 15	2	13.3%
d. Mar. 16- Mar. 31	0	0%
e. After Mar. 31	1	6.7%

2. When did you / will you finish reading submissions for this spring cycle?

a. Mar. 1-Mar. 15	0	0%
b. Mar. 16- Mar. 31	4	26.7%
c. Mar. 31- Apr. 15	7	46.7%
d. After Apr. 15	4	26.7%

Journal communications with authors are under stress, and not really what we would choose as our first-best:

4. How, if at all, do you indicate to authors that your journal is open for submissions?

a.  Post to our home page	1	6.7%
b. E-mail to our mailing list	0	0%
c. Change status to “accepting submissions” on bepress or scholastic	9	60%
d. Another way	0	0%
e. No particular way	5	33.3%

9. When your journal makes no response to an expedite request, is it usually because:

a. You considered and rejected the piece	3	20%
b. You were aware of the piece but did not have time to consider it	8	53.3%
c. another reason.	4	26.7%

Except for All the Others

Except for Fenway Park, there is no green grass in New England right now.   Still, I'm sympathetic to those who skim the law review submissions angsting thread, close their browser window in embarassment when a colleague happens by, and then think to themselves, "There's got to be another way."  

In that spirit, I thought it might useful to our reform conversation to report my experiences with peer-reviewed econ and l&e journals.  I've had half a dozen or so, of which one was constructive, pretty fast, and what I expected of a process run by fellow professionals.  The others...well, some are still ongoing.  Suffice it to say that it's a lot like sitting in a busy dentist's office, only for 8 to 12 months and without any good magazines.  

I don't think it's unreformable.  Indeed, I think a good starting place for a conversation about where to go with legal scholarship would be to talk more about which system's flaws are easier to mitigate.  

So, for example, it's possible that the peer-review market could function a lot better with better information.  There's almost no reliable information about how long each journal takes, on average, to complete reviews.  (In fact, it's a little bizarre that a profession whose central premise is the efficiency of well-informed markets would tolerate such an opaque system.)  Mandatory compilation and disclosure of that information would probably create at least some competitive pressure to bring those times down, which might eliminate at least the worst instances of needless delay.  There is a site for griping about long waits, but it is surely not a representative sample.  A laudable exception is AER, which reports a cumulative distribution table (see p.623) of wait times.

At a minimum, journals published by professional associations, such as ALER and JELS, should lead by example on this front.  Board members, are you reading?   

A Law Review Survey

We did a survey on prawfs a few years ago about the availability of law review slots for the fall season, and the results were pretty useful...at a minimum, they disproved the naysayers (me) who had been claiming there was no fall submission season.  I'd like to field another survey instrument, aimed a bit more broadly at law review submission timing and related factors.  Let's crowdsource it.  Below the jump, I list some questions I'd like to include in the survey.  Please feel free to suggest additional questions, kibitz the wording of the existing questions, etc.  This will probably be an on-line, mostly multiple-choice, format.  

I want to keep the survey around 10 questions or fewer so editors can answer without much hassle, so also let me know which of the questions and suggestions you think are most/least interesting.  

I'm aiming to send around the survey at the beginning of next week, and post results at the end of the month.  Law review editors, feel free to e-mail me to request a copy of the survey (see the link to the right for an address).  

1.  When did you begin reading submissions for this spring cycle?

2.  When did you finish reading submissions for this spring cycle?

2a.  Were these dates typical for your journal?

3.  How, if at all, do you indicate to authors that your journal is open for submissions?

3a.  Will you be reading submissions over the summer?

4.  When do you expect to begin reading submissions for the fall cycle?

5.  What portion of your available slots remain open for summer and fall placements?

6.  Are these fall practices typical for your journal?

7.  When your journal makes no response to an expedite request, is it usually because:

a. You considered and rejected the piece; b. You were aware of the piece but did not have time to consider it; c. another reason.

8.  If there was one thing you could change about the submission process, what would it be?

 

Why isn't PRSM more popular?

Following the angsting thread this season and reading Dave's thread about professors breaching law review contracts has made me start thinking again about the law review submission process. Everyone, it seems, agrees that the process creates perverse incentives: professors submit to dozens of journals, so that student editors must make decisions on thousands of articles; student editors are forced to make quick decisions in competition with other journals, and so rely on proxies of dubious merit to decide what to read; students at higher-ranked journals rely on the work of students at lower-ranked journals to screen articles. What strikes me, though, is that the Peer Reviewed Scholarship Marketplace seemed to solve all of these problems when it was created in 2009. It incorporates peer-review from subject matter experts (and provides this feedback for authors to strengthen the piece, whether or not they accept a given offer). It takes away the time pressure of the compressed submission season. It protects the freedom of choice for both professors and for student journals; students still decide which pieces to make offers for (after seeing the peer review evaluations), and professors can feel free to decline offers--they are not obligated to take an offer from a journal they don't wish to publish with. When PRSM was created in 2009, I thought it would quickly become the predominant way that law journals select articles.  Why hasn't it? Do more journals need to start using it so that authors will submit to it? It seems like they have a pretty good cross-section already, as there are 20 journals listed as members, about half of which are ranked in the top 50 law journals, and some in the top 30. Do more authors need to use it, so that journals will sign on? Or is there something I'm missing--some benefit of the current practice that PRSM fails to replicate?

Breaching a Law Review Contract?

I'm one of Temple Law Review's advisors.  Given my views on student-run journals, this is a  bit ironic. But the experience so far has taught me  how much student editors care about getting it right, and how invested they can be in their journal's success.  Or to put it differently, though in theory a goofy academic could generate a hundred more useful ways to spend students hours than law review, it's not at all obvious that any of those alternatives would generate equivalent passion and commitment from students. 

The advising process has also recently given me a new perspective on an old problem. Very often, in the insane & dispiriting process that we call the submissions cycle, you hear of professors getting a great (read: higher prestige journal) offer just after they've accepted at a less great (read: lower prestige journal) placement.  Counterfactual reasoning sets in -- "if only I'd pushed back against those meddling kids!" - and everyone who hears the story feels a punch in the gut, excepting those who refuse to play the game. Inevitably the question is entertained: what, exactly, is stopping the professor from backing out of the deal with mediocre law review A to accept the offer of awesome law review B? After all, the process is crooked, everyone is just reading expedites, and reliance arguments are weak.  Law reviews aren't going to sue for breach of contract -- even if one exists, which might be doubtful.  If they did , this is the clearest case of efficient breach possible. 

But then norms of professional courtesy typically set in. And, though I've been teaching for over a decade, and heard literally dozens of stories like this, I'd never actually heard of anyone backing out of a law review acceptance until this cycle.  Temple just had someone back out.  Because that person is junior - and no doubt listening to a more senior mentor's advice - I'm not going to provide more details.  I will say that the acceptance/rejection cycle was very dispiriting to the students involved, and it rightly might make them quite cynical. And it did make me wonder whether  publication decommitments are  more widespread than I'd thought, and whether journals could (or should) do anything to stop them. 

Have I just been naive? Is law review conscious decoupling common? Is that behavior, in fact, righteous?

Open Thread: How do we Stop the Madness?

By "the madness," I mean this.  Opaque "submission seasons" and letterhead biases and footnote fetishes and massively multiple submissions (I kinda want to start an MMORPG called "World of Lawcraft," all about getting law review articles published) and all the other crazy pathologies of law review publishing.  

As Your GameTheoryBlogger, this seems to me like a classic strategic problem: nobody likes the system, it means huge amounts of work for the students, work that (time for Real Talk(TM)) probably impairs their educations, and most of the real benefit to them is just victory in an insane status arms race in which law review membership is a signal of smartness that law firms respond to; it also undermines the scholarly enterprise to have (Real Talk(TM)) scholarly reputations and their associated benefits depend (yeah yeah only in part post-publication review sure ok) on the judgment of 2Ls with like three minutes to read a paper.  Yet we are unlikely to be able to just replace the system whole-hog with peer review, because the individual costs of doing so are so high. (I confess I kinda miss the early days of Prawfs, where Kate Litvak was around and leading the mighty charge for peer review in the comments. Yes, I remember those days, back in like 2005---I think I even remember the first e-mail Dan sent around announcing this blog's existence!)

More broadly, we seem to have lots of collective action problems like this in legal education. Think of the pitiful death of the law clerk hiring plan. And of the way that we all bow and scrape to the almighty, but universally loathed, gods of U.S. News. Can we get better at it? How do we improve our institutional capacity for collective action? All ideas, no matter how crazy, welcomed in the comments.

Submission angsting: Spring 2015

The submission window is just about to open and we await Redyip's semi-annual return-- some journals already have announced they are accepting submissions. So let the angsting commence.

If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.

Edit: To get to p.3 of comments, click here. To get to the end of comments, click here.

Why Study Athenian Law?

Let’s have a break from game theory.  As some of you may know, I have a research program in ancient Athenian law. I’ve published one big article on the subject, have a book chapter forthcoming, have another paper or two or three in the hopper, and draw on it to understand other things on an appallingly regular basis, even when I write about things like constitutional law and jurisprudence.

 

But that might seem like odd behavior. Although I do read Attic Greek*---which is the main qualification for being able to talk about anything Athens without classicists mocking you**---I am no historian. And anyway, legal historians tend to focus on systems of law that are either part of our (American) legal tradition and the common law tradition that led up to it, or that are at least part of the traditions of other countries that we care about, such as the civil law tradition from Rome or the Islamic law tradition. 

 

But Athens?  Athens doesn’t really linger in a legal sense: almost nothing we do can be traced back to them (although I’d be tempted to make a claim for the jury trial and for the adversary process, and Hayek insisted that the Athenian concept of isonomia—legal equality—is the wellspring of the English ideal). Unsurprisingly, there aren’t many American legal academics who work in the area.  I think this is a mistake: we, qua discipline, are leaving knowledge on the table. 

 

So what is this Athenian law nonsense?  Is it just more Kant in Bulgaria? Have all those trees died in vain? (That cliff-hanger gets resolved after the fold.)

 

Here’s my defense of Athenian law.  Even though Athens isn’t really at the heart of our legal tradition, it is at the heart of our political tradition. The democratic self-understanding of the (male, native-born, not-enslaved) Athenians is remarkably similar to ours, not least because ours is in part directly traceable to theirs through the tosses and turns of intellectual history. And a lot of the other things they were concerned about were also concerns of ours. They, for example, were also concerned about keeping those with socioeconomic advantages from turning them into political advantages (although the worry ran less to campaign finance and more to coups).  They, too, were worried about balancing popular sovereignty with good decision-making---a fun exercise is to read Plato together with, say, my friend Jason Brennan.

 

For the legal academic enterprise, there’s a huge advantage to the conjunction of similar ideals and ends with very different institutions. For they give us an idea of the institutional space available with which our ends may be pursued.  Here’s my favorite example (so much so that I published it): in the U.S. and U.K., we go on about “the countermajoritarian problem,” and sometimes suppose that it reveals a tension between full-fledged democracy and the rule of law: we can either have the majority getting what it wants whenever it wants, or we can have a body of constitutional law interpreted by elite judges holding it within bounds. But then we get to Athens, where there was no elite judiciary—the “judge" was a jury of hundreds of totally ordinary citizens, chosen at random, with full and final authority over questions of both law and fact.  Yet the countermajoritarian problem still came up!  What are we to make of that? What was really going on, when the masses in Athens objected to being asked to consider the legality of their own actions, and can we learn from it in understanding our own countermajoritarian worries?

 

Sometimes, the solutions that the Athenians found to our problems may even be better than the ones we contemporaries use. For example, these days, when we try to “promote the rule of law” abroad, typically this means, among other things, finding a developing country that has just finished having a war and shedding a dictator, and loosing armies of lawyers on that country to professionalize their legal system. Yet Athens had a very amateur legal system, and we might think that amateur legal system was particularly functional when it came time to handle their own effort to rebuild the rule of law after a period of chaos and tyranny—in the beginning of the fourth century, after the Thirty Tyrants. I’ve argued as much in a forthcoming book chapter: the mass jury allowed Athens to reconstruct its legal system in substantial part because it gave ordinary citizens a good way to signal their commitment to legal methods of dispute resolution as well as to the particular commitments their democracy had undertaken.  Do we lose this value when we rush to instill professional legal systems in unstable states abroad?  Perhaps we do, perhaps we don’t, but studying Athens allows us to think about the possibility.

 

 

---

 

* Badly.

 

** Legitimately.  Greek is a really wonky language, and there’s lots of indeterminacy in translating from it. But that’s poison for actually using original sources to understand something about the society the source material came from: some translator can produce a perfectly legitimate and sense-making translation of a passage that has multiple admissible meanings, and so it’s easy to get led down primrose paths by taking someone else’s translation too seriously if you can’t consult the original, or if you don’t know enough about how the language and culture works to know when a translation is suspicious enough to make the original worth consulting/when your argument might hinge on a particular word or two. Having said that, don’t let it that deter you from working in the area!  There’s lots of interesting stuff that can be said in a comparative fashion by drawing on the huge secondary literature produced by classicists and such to shed light on modern legal systems.  

Washington & Lee Law Review: Exclusive Submissions

The Washington and Lee Law Review is opening an exclusive review program for articles until November 24, 2014, at 7:00 PM EST.  The Law Review will extend offers for publication by December 8, 2014.  All authors who submit articles to this program agree to accept a publication offer, should one be extended.  For more information and submission instructions, visit this description.

Clearly established?

Back in June, we learned that at least the Eighth Circuit believes the right to burn a flag is clearly established. I wonder what the Seventh Circuit will think of the right not to have a police officer proselytize and hand-out information about a church in the course of a traffic stop.

Online-only law reviews

It’s well into May, y’all, and well beyond the time that I should bring my April Prawfs guesting stint to a conclusion. For my final post, I thought I’d share my experience doing something new with respect to publication: publishing in an online-only law journal (I'm using the term online-only because many, even most, print journals also publish their articles online--I'm referring to law reviews that don't have a print analog). (The piece, to further conclude my guest stint in the spirit of shameless self-promotion, is “Market Harm, Market Help, and Fair Use,” 17 Stan. Tech. L. Rev. 359 (2014)).

I didn’t have any strong sense that publishing in print journals was the only way to go, it’s just that until recently the alternative had never occurred to me. But the experience was almost exactly the same as it was with print journals in terms of editing schedules and process. And there are a lot of upsides: the article got out there in its final form much sooner, since there was no need to wait for the analog printing process, and there are related green upsides if that’s something you’re into.

I am hard-pressed to think of much in the way of a downside, honestly. The student editing was outstanding, right in the same league as the print journals I’ve worked with. I suppose the most obvious drawback is that there’s no physical circulation for the journal, so your article won’t get into the hands of mail subscribers and libraries (but it is online and on Westlaw and Lexis, which I think is far more important).

One could imagine an argument that people won’t take a publication seriously unless it’s also in print form, but that one just seems implausible to me in this increasingly digital age. The vast majority of articles I read are from digital sources, so I suspect any skepticism about the online-only format will soon be a thing of the past. Having reprints is neat, of course, but that’s a luxury that’s not clearly justified given its costs.

And I guess online-only journals may direct more traffic to their site, and away from SSRN, decreasing the author's downloads, but again--that seems pretty marginal. The important thing is that the work is good and that people read it; SSRN downloads are only a proxy for those much more important considerations.

So having said all of this, and to polemically recast this post as a question to the Prawfs readership, is there any reason to prefer print law review articles? (Archives? Etc.?) Discuss! (And see you all sometime in the guest-blogging future.)

Redyip's return: Angsting Thread Spring 2014 edition

So I understand Redyip is still waking up from his dogmatic winter slumber but the commenters on the prior thread are clamoring for him to brush his teeth and be on his way, so if you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Redyip to bring you for Purim, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.

If you're interested in asking Redyip questions, BDG might come out of the woodwork too to conduct an interview. Here's the last installation of back and forth.

Update: link to final page of comments here.

Law Review Publication Agreements

 

It might be useful for folks to have access to law reviews' publication agreements, whether to help with negotiations, compare copyright provisions, or whatever. I've begun a spreadsheet with links to such agreements that are available on the web. If you are aware of other such links, please add them in the comments to this post or email me directly, slawsky *at* law *dot* uci *dot* edu, and I will add them to the spreadsheet.

If this is duplicative of another such effort, please let me know, and I will (gleefully) ditch my spreadsheet and add a link to the other resource.

I am interested in links to any law review publication agreements, whether main journal, secondary journal, peer-reviewed, or student reviewed. 

The spreadsheet so far is here:

 

 

Update: I included a link in the spreadsheet to the Miami law wiki page on Copyright Experiences. This is a very helpful resource that includes links to information about the copyright policies of a large number of law journals. 

Update 2: I have now gone through the Miami law wiki and added to the spreadsheet links to the full text of journal agreements presented on the Wiki (as opposed to descriptions of copyright policies). I have indicated which links these are by marking a column in the spreadsheet "Miami Wiki." I will now attempt to augment this list as well as replace, where possible, the Miami Wiki links with links to the publication's web page. Three cheers for the Miami Wiki!

Et Tu, Adam? The Lazy Critiques of Law Reviews Continue

When it comes to media stories on legal education, bashing on law reviews is evergreen content.  Why, it was just two years ago that David Segal was offering his own attack on legal scholarship, referring to law review articles as "headscratchers" and quoting Chief Justice Roberts on Kant & Bulgaria.  (And this was my response then, in case you missed it!)  So here comes Adam Liptak with his version of this tired old story, reciting the quotes & studies that have been trotted out before.  I find these critiques to be based on a blend of ignorance, arrogance, and incoherence.  Ignorance because they don't really seem to know what's going on in actual law reviews.  The CJ's quote is a good example -- it's a caricature of a cliche about law reviews, rather than an actual observation about them.  Arrogance because there is always outrage about these "amateurs" and "incompetents" getting to touch the golden prose of scholars.  Sure, some journals and some editors are worse than others, but on the whole students know the Bluebook and are respectful yet challenging of authors.  I have gotten terrific editing from law reviews, including a set of edits at a specialty journal that I just turned around this past month.  Would some peer review be nice?  Sure, but (1) there are peer review journals and (2) meaningful peer review comes in the literature to follow.  When a huge number of professors do their research on SSRN, which offers no review of any kind (other than download counts), the need for peer review to separate wheat from chaff is overblown.  Finally, incoherence -- because the critiques don't fit together.  Law review articles are incredibly esoteric and out of touch?  Then why are they being chosen by editors who almost all go on to be lawyers themselves?  Law blogs are better than law reviews?  I don't know where to begin with that one.  There are a lot of different tropes and agendas meandering around in these critiques, and they just don't hang together.  The critique of internally-placed articles based on Albert Yoon's research does raise real concerns.  But this is a much more subtle point than the rest of Liptak's post.

I have a lot more to say about this, some of which I said in "Law Students and Legal Scholarship" over at the Journal of Law.  But law reviews are a resource for which law professors should be grateful.  I hope more law profs come out of the woodwork to defend these institutions of research and learning, or they just might begin to disappear.

HLR has more women. Discuss.

The Crimson has a story reporting that since the Harvard Law Review adopted a gender consideration for its discretionary slots, the review has almost doubled the number of female admittees to its membership. See here (reporting that women went from 9 to 17 out of roughly 45 people admitted for this year).

Those six of you who have followed this issue with some interest over the years may remember that both Justice Kagan (in her former decanal role) and Professor Carol Steiker (a former President of HLR herself) opposed adding gender to the list of considerations that would figure into the "discretionary" slots. Their stated concern was that it would cast doubt on the accomplishments of those women (including themselves?) who  got onto HLR through the "blind" means (writing competition or grades-inflected scores of writing competition). Of course, this is the same rationale often thrown against affirmative action measures for visible minorities, so one wonders a) do they oppose the use of AA for race/ethnicity or other considerations? and b) if not, what are the distinguishing features are of race/ethnicity versus gender? Is it some kind of critical mass theory to the effect that women have without benefit of affirmative action policies still formed roughly 25% of the law review membership? I confess I'm puzzled by these reactions and not entirely sure what I would do if I were in a decision-making capacity on the HLR. Helping or inspiring people to Lean In during law school doesn't seem nearly so sufficient, though it does seem necessary. Am I wrong?

Anyway, here are some other relevant sources: a story on the HLR internal study a decade ago and some of the more recent coverage on Shatter the Ceiling, a project meant to facilitate female achievement at the Law School.

Ask Redyip

I do not know Redyip.  I did not work with Redyip.  Redyip is not a friend of mine.  But let's just say that I've entreated him (it?) often enough that I know how to get urgent communications to his aerie.  (And no, it's not by tweeting.)

Many of you have questions about the law review process.  Who knows?  Maybe I can get you answers.  Post them here, and let's see what happens.  (I also have some small acquaintance with Bla'a K'hole, the mechanical guardian of planet Peer Review.  Place your questions for him on a punchcard and I will feed them into the appropriate slot.  Warning: answers may be provided in binary.) 

Also feel free to pipe in with your own views. 

The Angsting Thread (Fall 2013 Submission Cycle Edition)

Friends, I have it on good authority that Redyip is not yet visible but he is making preparations for his journey this autumn.  You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.

Oh, one last thing: if you're bored while waiting for him to fly, Redyip whispered to me that y'all should feel free to read and send comments on this little paper.

The Poor are Still Losing: Gideon's Empty Promise

This past weekend I spent some time thinking about the future of indigent public defense and what role, if any, defense lawyers can play in a system beset by racism and classism.  First, I read a provocative essay by Paul Butler, "Poor People Lose: Gideon and the Critique of Rights," in the Yale Law Journal's most recent issue, which contains over twenty articles (all available for free download) by law professors and lawyers reflecting on the 50th anniversary of Gideon v. Wainwright.  

Professor Butler makes a strong case for the idea that the focus on rights discourse -- the right to counsel at trial, the right to counsel during plea negotiations, the right to Miranda, the right to a jury trial -- ultimately has little impact on a criminal justice [or juvenile justice] system in which poor people nearly always lose.  Why do they lose?  Because, as Butler explains, protecting defendants' rights is much different than protecting defendants:  "What poor people, and black people, need from criminal justice is to be stopped less, arrested less, prosecuted less, incarcerated less."  Providing a lawyer -- especially one who is underpaid, overworked, and under-resourced -- does little to change this calculus.  As Butler reminds us, the reason that being poor and African American substantially increases the risk of incarceration has more to do with class and race than with the quality -- or lack thereof -- of the indigent defense system.  

So, what do we do about it?  That, Butler acknowledges, is the hard part.  We certainly don't discourage law students from becoming public defenders, because on an individual level, they do help clients [more on this below].  But what is the alternative?  Michelle Alexander has urged defendants to take their cases to trial, putting a stop to the vicious plea mill that has subsumed the adversarial process, and to "crash the justice system."  Butler has called for "racially based" jury nullification for nonviolent, victimless crimes as well as decriminalizing or legalizing drugs.  I'm not convinced that these specific strategies in and of themselves will catalyze a social reform movement large enough to alter the system, but it's clear that nothing should be discounted, for the situation is dire.  

With all of this percolating in my mind, I happened to watch the new HBO documentary, "Gideon's Army," which follows three public defenders working in under-resourced counties in Georgia and Mississippi.  The film was engrossing and offered (what seemed to me, at least) a realistic portrayal of the challenging and gruelling nature of indigent defense.  The three young PDs -- two women and one man, all African-American -- were dedicated and driven, although one understandably walks away from the job when she can't pay her bills to support herself and her son.  The film concludes (perhaps for marketing purposes) with a happy ending -- an acquittal after a jury trial, which made me -- a total sap -- cry as the PD was hugged by her (young black male) client and his (low-income) single mother.  

But as the credits rolled, I didn't feel much like recruiting baby PDs for this "army" or donating to the organization that inspired the documentary -- the Southern Public Defender Training Center (SPDTC) (now called "Gideon's Promise"), led by the dynamic (white male) Jon Rapping.  Instead, I wanted to crash the system.  The film's explicit message is that there's a "battle" going on in which dedicated and hard-working PDs can win if only enough of them sign up, endure slave wages, and get down with representing one poor person of color (and the occasional white poor person) after another, as our prisons only continue to expand.

The director, Dawn Porter, draws clumsy parallels to the civil rights movement (and even offers a cameo by John Lewis who appears at a fund-raising event for SPDTC), but there's no acknowledgement that the lawyers who represented civil rights workers in the south had clear goals and objectives, while these PDs are fighting for...what exactly?  By acting as cogs in a broken machine, one that even Rapping admits is "hell,"  they are not bringing about systemic change.  Yes, they may make a difference to an individual defendant, but there is no talk of broader-based action -- such as a demand for a living wage, reasonable caseloads, or enough funding to perform basic investigative tasks and forensic testing.  Let's be real -- how could there be this sort of activism?  These lawyers are barely hanging on, working 15-16 hours/day and scrambling for change to buy enough gas to get them to the courthouse.    

Don't get me wrong -- I was a proud public defender for ten years, and as a clinical professor, I still represent the same client population; I am heartened whenever one of my students enters this field.  But I would never suggest that the work of the average PD, like the ones featured in the film and in most offices across the country, actually transforms the populations they serve or that the appointment of a lawyer -- the RIGHT to a lawyer -- helps dismantle the incarceral state.  

I would also be reluctant to recruit young lawyers for this work using the pitch championed in the film, because as romantic as it sounds, it will inevitably attract people for all the wrong reasons, such as one of the women who balks when a client feels no remorse for his heinous crime.  She thought she was on the "right" side of the war, only to find that the lines are not so easily drawn.  As Travis Williams, my favorite PD in the film said, "I don't see how you can do this job for any period of time and not love it.  Either this is your cause or this ain't."  He's the guy who has tattooed the names of his clients who have been convicted after trial on HIS OWN back.  He will be a career PD, and his clients will be truly blessed to have him on their side.  He also recognizes, however, that the work is thankless, that the conditions are unlikely ever to change, and that it's more of a marathon than a war.  A marathon with no end in sight.    

Your thoughts?  Please share in the comments.   

 

Baude on Spillenger on Extraterritoriality and the Constitution

More on today's decisions (and perhaps a few more comments on my prosecutorial comment post) when I'm not running to grab a plane (the story of my life).  For now, I just wanted to cross-promote a post I have today on JOTWELL, State Boundaries and Constitutional Limits.  From the post:

Territoriality is a basic premise of the federal system; everybody knows that the New York legislature can’t just sit down and rewrite all of the laws of New Jersey. This seems like a common-sense requirement of our constitutional structure.  But as Clyde Spillenger demonstrates in Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, the nature and source of this principle is misunderstood today. ...

And from the conclusion:

By the way, so far as I know, this piece has not yet been picked up by a law journal. Student editors who are reading this: grab it while you can!

Holes in the dueling submission systems

Redyip has again been sighted. But now, her (his? its?) semi-annual call sends us scurrying to a second main submission system (putting aside the direct-submits). And Corey Rayburn Yung (Kansas) emails Dan and me to suggest that this creates some problems; his email is reprinted in full below (with his permission):

I thought either of you might be interested in posting about a hole in the new submission system with Scholastica and Expresso. If an author receives an offer from a Scholastica journal (i.e., Cardozo, Iowa, USC, or California) and wants to use it as the basis for an expedite request to an Expresso journal, there is a problem. Most, if not all, of the Scholastica journals are no longer listed as sources of offers in Expresso. And an author no longer has the option to just type in the name of the journal that made an offer. As a result, the only option an author can choose is to that he or she did not wish to disclose the identity of the offering journal. Then the author can put the name of the journal in your subject line and body of the email.

That would be fine except for how the new Expresso system looks on the journal’s end. When viewing all expedite requests, the text and subject of the email is not visible. Instead, the journal editor will click on “Details” from the list of expedited articles which will then reveal only that the author chose not to disclose the source of the offering journal. And given that most (if not all) journals will not take expedite requests from unknown journals, the editor will simply reject the article. Until this issue is resolved, I would implore law review editors to look further at those expedite requests with no offering journal listed to see if there really is an offer from a Scholastica journal before disposing of the article based upon policy.

Has anyone else experienced this problem and/or figured out how to resolve it?

Scholarship and Indemnity Clauses by the Law Reviews

I'm on the AALS Scholarship Section exec board for some reason, and in that capacity, I recently rec'd a great email from Donald Tobin, the associate dean for faculty at Ohio State Law, who writes on an important but frequently neglected issue: indemnity clauses in law review agreements. Specifically, he wrote the following:

I think there is a growing and real problem with law reviews requiring authors to sign indemnity clauses.  These clauses require authors to indemnify the journal and university from any costs associated with lawsuits, including, in some cases, costs associated with frivolous cases.  The problem with these types of clauses is that they impact the most vulnerable of our faculty and also those writing in controversial areas including human rights, minority rights, equality, etc.  I have just finished trying to help one of my faculty members negotiate one of these releases.  We came across the following problems:

1)       While Universities will defend faculty members who are sued based on their scholarship, many Universities will not indemnify other institutions.  For example, the State of Ohio prohibits its institutions from indemnifying other institutions.

2)      Insurance protection does not work.  I looked at whether the faculty member could purchase insurance through AAUP.  The insurance company indicated that it would defend the faculty member, but would not make payments under an indemnity clause.

3)      The faculty member is thus stuck.  We are placing the burden on the people least able to bear it.  From the university to the faculty member and the faculty member has no means of protecting herself.

4)      Journals sometimes say, Don't worry; suits are unlikely. But if the suits were so unlikely...why shouldn't journals bear that risk? 

5)      Journals might also say:  the author has the most control to determine if they are committing a tort.  But there is no protection for frivolous suits or for suits generated for political reasons.

6)      These indemnity clauses, I am led to believe, were standard.  I did not think that was the case but I have a list of a number of top journals that had similar clauses.

7)      Finally, I was told that the AALS model agreement had an indemnity clause – and it does.  So we as an institution are contributing to this mess. 

To me, this is what institutions do.  They protect academic freedom and they should shoulder the burden of dealing with frivolous suits.  They should not then seek payment from an author.  It might be different if the author did something wrong – like plagiarized – but the idea that in general authors are on the hook seems very wrong to me.  As an institution we should either discourage these types of provisions or we should obtain some type of group insurance that either authors or institutions can buy for protection. When I spoke about this at AALS, most people were unaware of these provisions and there is some indication that even as lawyers we just sign these things, but they pose a real problem for some of our most vulnerable colleagues. Here is a link to a model agreement containing an indemnity clause:  http://www.aals.org/deansmemos/98-24.html

The AALS agreement is better than the one my faculty member was asked to sign because it at least doesn’t put the author on the hook for frivolous claims, but it still requires an author to pay the judgment and attorney’s fees.

--

Thanks for that Donald. So, what is to be done? A collective response by the associate deans for scholarship at the top law schools or even better, more generally, would be helpful. Of course, indemnity clauses are just one obnoxious aspect of law review agreements. Copyright assignments are typically the other! 

Wow, That Helps

The one piece of judicial language you don't want popping into your head when you check your email to see if anyone's accepted your article:

"But in America they are miserable merchants of unwanted ideas; their wares remain unsold."

Dennis v. United States, 341 U.S. 494, 589 (1951) (Douglas, J., dissenting).

Down the Runway It Goes

As anyone knows who's written an article or even a long paper, there's a discernible cycle in the author's attitude about his work.  You have what you think is a good idea, you write up the basics, you get discouraged, you put it away, you get another idea and come back to it.  So it goes, on and on, until you decide it's done and it's good and it's polished and it's ready.  I was at that stage last night.

Then I watched Project Runway.  It's a great, fun show to watch.  One of the most interesting parts is watching the designers as they see their work going down the runway.  I'm no fashion critic, but it's usually clear enough when someone has done a really bad job.  And what's striking is that, more times than not, the designer is absolutely delighted with his work.  His smile just yells out, "it's good and it's polished and it's ready."

So OK, so it's hard to be objective about your own work.  But what I'm really curious about is when people know that their work is ready for submission.  What are your last steps?  Another proofread?  Another substantive read to see if you just missed something?  Another footnote?  Another tweak of the cover letter?    I ask this both in terms of what you're insistent on as matter of your personal pride in your work -- what you're willing to have editors see -- as well as instrumentally -- what might make the difference between a good submission result and a bad one.  What are the last-minute fixable issues that matter?  Any thoughts?

The Angsting Thread (Law Review Edition, Spring 2013)

Friends, the time has come when Redyip is visible.  You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please. Maybe Redyip will even tweet a little this spring.

Update: here is a link to the last page of comments.

Twitter Census of Law Reviews

I tweet occasionally @derektmuller (feel free to follow) on election law, litigation, baseball, Malibu weather, and Notre Dame football (gulp). And the work by Bridget Crawford at The Faculty Lounge in aggregating a law professors’ Twitter census was an extraordinary and highly useful effort.

One good thing about Twitter is the ability to share and read links in a simple, shareable format. And what better place for law journals to promote their recent publications than on Twitter? Well, so I think. It’s difficult to keep track of what so many different journals are doing (with the notable exception of the excellent work at the Law Review Forum over at Concurring Opinions), so Twitter might be a good one-stop shop to see recent publications. (And both as advisor to the Pepperdine Law Review and one eagerly awaiting the arrival of Redyip, I’m particularly interested in what journals are doing.)

But, I haven’t found (or maybe I wasn’t looking hard enough) a good aggregation of law review Twitter feeds. I thought I’d give it a try.

Below are the Twitter feeds for a handful of law reviews. (And I suppose a “census” is a misnomer, because it’s by no means any attempt to be exhaustive.) I’ve aggregated them to a single list here, if you want to subscribe via Twitter. I couldn’t find a number of them (e.g., Columbia and Virginia), so perhaps they do not exist, or perhaps I simply didn’t look hard enough (notice a theme?). A few have ceased activity (e.g., Michigan). Others have no tweets (e.g., Duke). But, here they are, in a somewhat-random and idiosyncratic order.

Yale Law Journal: @YaleLJournal

Harvard Law Review: @HarvLRev

Stanford Law Review: @StanLRev

University of Chicago Law Review: @UChiLRev

NYU Law Review: @nyulawreview

Michigan Law Review: @michlawreview

California Law Review: @CalifLRev

Penn Law Review: @PennLawReview

Duke Law Journal: @DukeLawJournal

Georgetown Law Journal: @GtownLawJournal

Texas Law Review: @TexasLRev

Cornell Law Review: @Cornell_Law_Rev

UCLA Law Review: @UCLALawReview

Boston College Law Review: @BCLawReview

Boston University Law Review: @BULawReview

UC Davis Law Review: @UCDavisLawRev

Ohio State Law Journal: @OhioStateLJ

Fordham Law Review: @fordhamlrev

Alabama Law Review: @AlaLawReview

Iowa Law Review: @IowaLawReview

Illinois Law Review: @UIllLRev

Florida Law Review: @UFLawReview

Tulane Law Review: @TulaneLawReview

American University Law Review: @amulrev

Pepperdine Law Review: @PeppLawReview

Cardozo Law Review: @CardLRev

Connecticut Law Review: @ConnLRev

George Mason Law Review: @geomasonlrev

Oregon Law Review: @OregonLawReview

Temple Law Review: @TempleLawReview

Denver Law Review: @denverlawreview

Feel free to list additional law reviews in the comments!

The Competing Claims of Law and Religion: Who Should Influence Whom?

We attract some extraordinary scholars for symposia here at Pepperdine. In case you hadn’t heard, Malibu is a fantastic place for law professors to spend a weekend in January or February. (The forecast for today, January 22, is mostly sunny, 77 degrees. How’re you feeling?)

But it’s also distinct aspects of the law school that attract great symposia. The school’s religious affiliation, for instance, helped prompt an extraordinary conference last winter, “The Competing Claims of Law and Religions: Who Should Influence Whom?” The Pepperdine Law Review has just published the fruit of that conference. (And, as faculty advisor to the Law Review, I’m fond of reading the products of the students’ diligence.)

If you’re interested, check out the work from Abdullahi A. An-Na'im (Emory), Patrick McKinley Brennan (Villanova), Zachary R. Calo (Valparaiso), Sherman J. Clark (Michigan), Robert F. Cochran Jr. & Michael A. Helfand (Pepperdine), Mohammad H. Fadel (Toronto), Chad Flanders (St. Louis), Richard W. Garnett (Notre Dame), John Lawrence Hill (Indiana McKinley), James Davison Hunter (Virginia), Andrew Koppelman (Northwestern), Michael Stokes Paulsen (St. Thomas), Barak D. Richman (Duke), Susan J. Stabile (St. Thomas), Mark Strasser (Capital), and Eugene Volokh (UCLA). (Whew!) You can browse the entire special issue here.

Crystalline statutes and mazelike tours

This fall, I have been covering Kloeckner v. Solis for SCOTUSBlog (case preview here, argument review here). The Court decided the case on Monday, holding 9-0 (per Justice Kagan) that any federal employee who was terminated and also subject to discrimination (a so-called "mixed case") can seek review of a Merit Systems Protection Board decision by filing suit under the discrimination statute in federal district court, rather than having to appeal to the Federal Circuit (which hears MSPB appeals in non-discrimination cases). Lyle Denniston wrote the recap for SCOTUSBlog; I just want to add a few more points.

My prior pieces on this case highlighted the constant refrains about the complexity of the case and of the statutory scheme (oral argument was filled with "say that again?" and "slower, please"). Kagan's opinion does a great job of simlifying the statute and the question, laying out the relevant provisions, explaining how they work together, and insisting that the right answer is "crystalline" from the text itself. The Court is often criticized for clouding the waters; it is nice to see a case that clarifies and produces the simplest approach. In contrast, she rejects (and disparages) the government's "mazelike tour" through the statute; after laying out the government's statutory argument in detail, Kagan says "[i]f you need to take a deep breath after all that, you're not alone."

I have written previously that Justice Kagan is a terrific writer and her opinions are a pleasure to read. This case is no exception--sharp and snappy and, obviously, quite sardonic. She makes a great read out of a case that was always destined to go to the junior-most justice (do you think she's looking forward to President Obama's next appointment?).

Whither the Jewish vote?

Has anyone heard or seen much about polls indicating how the Jewish vote is expected to go this time? Jews have historically leaned strongly Democratic, even as they, as group, have gained in socio-economic power (the famous paraprase of Milton Himmelfarb is that "Jews earn like Episcopalians and vote like Puerto Ricans."). In 2008, Obama won around 74 % of the Jewish vote--this despite initial fears over older Jews, which prompted the Great Schlep in which younger Jews were encouraged to go visit their grandparents in Florida to encourage them to vote for Obama. And while the profile and influence of a Jewish conservative movement has risen in the past decade, the numbers have remained fairly stable since 1972. Georgetown's Program for Jewish Civilization sponsored a symposium on the subject last week (videos included); interesting stuff. One of the speakers at the symposium identified data howing Obama ahead of where he was in the polls four years ago.

So I was surprised to learn of one recent, admittedly non-scientific poll: The first-graders in my daughter's Reform Jewish day school (n=37) seem to be about equally divided between Obama and Ryan, with one class heavily for Romney. This presumably means their parents are similarly divided--or my daughter is in a preternaturally conservative and independent cohort. Needless to say, I was surprised; I expected something like a 75-25 split, maybe higher. Predictions that the Jewish vote would change have generally focused on the increasing populations of Orthodox Jews (who, like many religiously observant groups, tend to vote Republican) and of more-conservative immigrants from the former Soviet Union. But neither of those population points explains this result (which admittedly will not make it  into the 538 calculations).

The Angsting Thread (Law Review Edition, Autumn 2012)

Friends, the time has come when Redyip is visible.  You know what that means. Feel free to use the comments to share your information (and gripes or praise) about which law reviews have turned over, which ones haven't yet, and where you've heard from, and where you've not, and what you'd like Santa to bring you this coming Xmas, etc. It's the semi-annual angsting thread for the law review submission season. Have at it. And do it reasonably nicely, pretty please.

Update: Here is a link to the last page of comments.