In a recent post, blogger Dustin Cho (a former HLR editor), argues that law faculty should share information about the offer practices of the various law reviews. If professors knew both how quickly a journal reviews articles, and whether it uses exploding offers, they could submit articles to journals strategically.
Cho's post is reasonable, but unfortunately fails to account for the full scope of the whacked-out law review submission process. Among other things, it appears that many journals engage in a review practice that consists principally of sorting high value authors out of the mix, reviewing their work first, and waiting for expedite requests regarding all other submissions.
You can't blame journals. When a mid-level law review receives 1500 submissions, knowing full well that hundreds of these authors would ultimately decline an offer if one was made, it becomes hard to figure out how to use the journal's limited reading resources – and how to do so in a way that does not totally undermine morale. My sense is that the journals that read the highest percentage of submissions are at the edges of the rankings. The super-elites, like HLR, seem to at least scan everything (and can do so because they have large boards made up of editors willing to kill themselves for the journal. These journals also seem to devolve reading responsibilities far more widely than most law reviews.) Journals with the least developed reputations receive small numbers of submissions and are therefore able to read them all. But the journals in between are crushed by volume and cannot call upon the labor resources available to the super-elites.
One possibility might be for a group of journals to create the equivalent of a cert pool. If 75 law reviews got together and pitched in two editors to read and review articles, they could burn through 500 articles quickly. The journals could take a week or two break and then hold a draft. Just as in football, for example, journals would choose both on absolute quality and topical need. Assuming that the 75 journals agreed not to poach each other, this would radically reduce the size of the pool of journals engaging in expedites. And while some individual journals in individual years might be slightly weakened, I suspect that the overall boat would rise – while making everyone's life happier.
I'm sure one could come up with a number of complaints.
What about variable quality of student memos? What about strategic production of bad memos – when a journal wants to protect a piece for itself by burying it under a negative cert memo? One way to address these issues – at limited cost – would be to assign every piece to two readers.
How would you order the draft? One could use lots – but one could also rely on W&L or USN rankings – on the theory that the better ranked journals will typically have their pick anyway. The lower ranked journals still win, because they will get their first choice before the other journals select a a second (or perhaps third – see below) piece.
What about law school reputation – everyone wants their school to claw ahead, and this might flatten journal quality? Perhaps, but I suspect that journals that work harder investigating and reading pieces will still do better.
What about journals that publish more issues and need more articles – won't they be hurt in the process? One possibility would be to weight the draft and give schools taking more pieces more picks each round.
Interesting idea, Professor Filler. I think many journals would find such a system quite useful, although my initial intuition is that cooperation would work best in a consortium substantially smaller than 75 (perhaps a dozen, or even fewer?) to promote trust and quality in the memos.
A variant on your proposal (or perhaps a friendly amendment) might be for journals to agree to share faculty reviews of submissions. Such an agreement might help attract faculty readers (and encourage them to invest more time in their reviews) because their thoughts would have a wider impact than than at only one journal. And sharing faculty reads wouldn't implicate some of the potential downsides to your proposal, because all journals in the arrangement would have access to the identical faculty memos, and faculty readers wouldn't have incentives to favor one journal over another.
I think this proposal might appeal to some of the middle- and lower-ranked journals, but higher-ranked journals will have little incentive to buy in. And if the top journals don't buy in the whole program will suffer: It would probably take a significant amount of time to coordinate the pool and drafting would have to occur during a set time frame. The journals who don't buy in could move more quickly and poach articles before the pool gets a chance to act. Even if they wouldn't have time to go through all of their submissions before the pool does, these journals would still get first pick of the "big names." Though perhaps this is inevitable, in which case it's not a drawback of your proposal in particular.
This is similar to the problems facing the recent announcement that several of the top journals won't issue exploding offers. Of course the top journals agreed; it was in their interests to do so. But as Orin Kerr at Volokh points out: "Notably missing from the list is the set of journals in the Top 25 or so that are known for particularly short windows." If those journals don't buy in (and why would they?), it's not clear the new policy will make much of a difference.
I'm just not sure how to bridge the self-interest gap that seems to impose a barrier to both your reform proposal and the agreement against exploding offers.
I don't see this panning out, thought it seems like a good idea. Just a response to your thought that journals might strategically give a piece a bad review – perhaps journals can be barred from publishing the pieces they rate?
I disagree that we can't blame editors for taking shortcuts after authors spend months on articles. We have no way of knowing how much of any article any particular journal reads and how much the publication decisions are based on prestige. I remember conversing with an articles editor from a very highly placed journal. She expressed annoyance that the article needed a great deal of work in the concluding half (she repeated this twice for emphasis), and that the board hadn't noticed this upon acceptance because it had only gone through half of it. I've also spoken former articles editors, from very highly ranked journals, who said they dealt with volume by simply dumping a third or half of the submissions into the garbage without reading them. Another articles editor, at a very highly ranked journal, told me the method that year's board used for identifying articles was asking each other whether they had heard of the authors name, if they did they read it if not the piece had no chance. And I have many more stories.
Dustin Cho's idea is great. The more information we have about how journals operate the better prepared authors will be in knowing how to approach their editors.
The idea of a cert pool will never work because it isn't in the interest of journals to divulge information to each other. The cert process works for the S/C because the justices are working toward a common purpose, the journals are not.
The main problem lies in us, who leave the process of articles selection to students who have only recently learned that cases as elementary as Marbury and Int'l Shoe exist.
I like the cert pool idea, but unfortunately you'd have some serious potential antitrust issues to work through.
The cert pool works because the Justices are not in competition with each other at the cert stage: They all have a shared interest in finding the cases that are cert-worthy. But journals are in competition with each other, so any proposal for shared process would likely be joined by those who expect to benefit and not joined by those who expect to lose out. As Amanda Rice suggests, not everybody would benefit from this.
If journals are overwhelmed by the number of submissions, one answer is to have the entire journal take on screening functions during the submission windows. Instead of five editors trying to do everything, you could have 30 editors chip in for a brief window of time.
I would be very interested in how you know the following:
1. "The super-elites, like HLR, seem to at least scan everything . . ."
2. "Journals with the least developed reputations receive small numbers of submissions and are therefore able to read them all."
Those interested in this topic should check out the following link to an organization that is attempting to introduce a peer review alternative to the submission process: http://www.legalpeerreview.org/index.php
publication decisions are based on prestige. I remember conversing with an articles editor from a very highly placed journal. She expressed annoyance that the article needed a great deal of work in the concluding half (she repeated this twice for emphasis), and that the board hadn't noticed this upon acceptance because it had only gone through half of it. I've also spoken former articles editors, from very highly ranked journals, who said they dealt with volume by simply dumping a third or half of the submissions into the garbage without reading them. Another articles editor, at a very highly ranked journal, told me the method that year's board used for identifying articles was asking each other whether they had heard of the authors name, if they did they read it if not the piece had no chance. And I have many more stories.
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