As a former editor-in-chief of a law review and a faculty advisor to several publication boards, I wanted to raise some ethical issues in law review submission.
Should authors submit an article to journals that they would not publish in?
I have had many debates with faculty colleagues around the country about this question. I think the correct answer is no, but we know that it happens. During my last article placement, several journals called me or e-mailed me to ask, "would you accept publication if we were to offer it to you?" I asked, is this a request for an immediate acceptance of an offer of publication if one is forthcoming? They said no; it was just a call to see if after the agreed upon bid up period no other acceptance is forthcoming, whether I would commit to publication. Of course, my answer was yes. There can be reasons why an author may not wish to commit to a publication relating to the conditions of the acceptance. Student demands as to length, placement in later issues, or request for comment on the article could all be reasons for rejecting the offer of publication. But using a lower ranked journal just to bid up an article without the author's good faith consideration of the offer of publication from the lower ranked journal is plain wrong in my opinion.
The Bidding Up Game
We could debate the merits of the bidding up process, but at a minimum, it should be played fairly. First, law reviews should demand a full name of the journal that has accepted the article and a contact at that journal. If the review decides to accept the article, the prior accepting journal should be contacted to verify the acceptance. I have heard a few stories where an author has called other journals saying, I have an acceptance at "School." The acceptance is not at School Law Review, but a second, third, or fourth specialty journal at School. Of course, I am not intending to disparage those journals, but I am criticizing an author who intentionally creates confusion regarding the journal acceptance in order to increase his/her chances of successfully bidding up the article acceptance. I have also heard of authors asking for expedited review without any acceptance whatsover by using other law review inquiries about the status of the article to create a misleading impression that those inquiries were offers of publication. A law review notice -- that bid up requests will require verification if the article is accepted -- should end misleading and false claims of acceptances.
NOTE: If journal editors discover fraudulent behavior, they should consult with their faculty advisor and dean to determine the proper course of conduct. I know of several cases in which the review notified the dean of the author's law school regarding the unprofessional conduct.
Second, I am a fan of negotiated one to two week firm bid up periods. Often, the entire time is not needed. I think that law review editors would alleviate much stress and delay if they communicate rejections in a timely fashion. With e-mail, it is so easy to send, on a timely basis, a note that the journal has decided not to accept the author's piece. Similarly, authors who receive a more desirable acceptance should notify other journals prior to the end of the bid up period to permit journals to review and make publication offers to other articles.
In my experience, most of the unethical behavior by journals has taken place on by the journal itself. They retract offers, they place their friends' articles. Likewise, since most journals are a bunch of clashing egos, there is lots of room for unethical behavior within them.
Posted by: S.cotus | March 14, 2005 at 10:27 PM
I never understood this whole "trading up" phenomenon. It sounded awful the first time I heard it, and I still don't get it.
Posted by: baffled | March 14, 2005 at 11:11 PM
The bidding up phenomenon has been around for a while. (We lost Judith Resnick's piece -- Managerial Judges -- to the Harvard Law Review.) But in the last decade, it has taken on a new meaning. Some authors bid their piece up three or four levels. Some authors stagger mailings to start in lower tiers and progress to the higher tiers. In the 1980s, many top law reviews received 700-800 articles a year. This has risen to several thousand. A March and an August season for selecting articles has moved to mostly a March season with filling the holes in August. I have heard that some top law reviews stop reading articles submitted in the order received (unless they are authored by well known persons or a person from a well known school) because they receive so many requests for expedited review. I agree that the bidding up behavior of authors and the reviews need for external confirmation that the article is worthy does not make sense. Articles editors should process articles in a systematic way and only devote limited time to expedites rather than devote all the time to authors who request expedited review. Some might say this is the free market at work. But why would students let other students determine the pool of articles that should be seriously considered?
Posted by: John Dzienkowski | March 14, 2005 at 11:26 PM
You people miss even the larger point: why does the name and school of the person matter? Are editors incapable of making substantive judgments about the quality of law submissions without looking at the name. From personal experience as an editor and as an author, the answer is “about three quarters are.”
So, why is it ethical to print whatever tripe a famous person writes and dismiss out of hand something that someone with a less-impressive CV writes ?
The law reviews started this. They continue it. Perhaps if they put real effort into analyzing the content of what they review, and the authors knew this, then these problems would not exist. Until they do, any of this “abuse” of the system by authors is necessary and warranted.
Posted by: Scotus | March 15, 2005 at 11:06 AM
Scotus:
I believe I read an article by a professor who had dual affiliatations and who submitted two versions of an article to various law reviews -- with the only difference being that he listed one of his affiliations in one article and the other affiliation in the other. As I recall, the school made a large difference in how the articles were treated.
Posted by: John Steele | March 15, 2005 at 11:30 PM
And this, I think, creates an ethical problem. Some schools admit that they do this. Some schools do not. Right now, I have an article out (no bites yet) which I am sure my lack of a tenure-track position is keeping from getting published.
So, why is it ethical to decide which arguments get accepted based on who is making them? If editorial boards are supposed to behave like unbiased judges of arguments (which so pretended to) why do they often just look at the CVs of the person writing the article. Imagine if judges did this? (Oh wait, as a former law clerk, I can tell you that some law clerks would look up the lawyers on Martindale to see what kind of school they went to – though I don’t know if this made a difference in the decision.)
Now, if we are going to be honest and say that editorial selection is a popularity contest, then why don’t we just pretend it is like high school and not impose this supposedly high-minded system of legal ethics upon it?
Posted by: s.cotus | March 16, 2005 at 07:18 AM
It's a flawed system, to be sure, in part created by the fact that law review editors get more submissions than they possibly could read. Because we authors overwhelm them, they feel the need to take "shortcuts" like skimming, sorting articles by the author's CV, or assuming that articles with a "competing offer" are more likely worth a close look. These aren't "fair," and when I submitted an article in 2003 (while in practice and about to go on the teaching market), I received a bunch of rejections that came so fast they couldn't possibly have read my article (e.g., I mailed it Monday and received rejection postcards from schools across the country later that week).
But until we have a more streamlined system for article submission, we're stuck with law review editors sifting therough their stack of submissions by using "shortcuts" of varying degrees of efficacy and fairness. But I don't know what a better system would be (no more than 10 submissions of an article in a month?) or how it would be enforced. There's no easy answer, which is why the sub-optimal status quo remains in place.
Posted by: Scott Moss | March 16, 2005 at 11:25 AM
Just a thought experiment that will never go anywhere, but ....
AALS builds a very simple website. Authors submit their papers and select, say, ten law reviews. If any of those ten reviews claims the paper then the author is contractually forbidden to "trade up" except as to the selected ten. If none of the ten claim the paper in a month, the author is a free agent and can submit anywhere. This gives the author an incentive to pick one or two "reaches," lots of "targets," and one or two "safeties." If the author picks only the top ten law reviews, she may not get any bites and will have to enter the free agent market.
This would greatly reduce the number of papers to each law review, give authors incentives to be selective and realistic, and bring some sanity to this. (I readily concede that I have no experience with this issue and that my suggestion may well be insane.)
Posted by: John Steele | March 16, 2005 at 11:39 AM
It would be a good system, especially if authors are prohibited from 1) thanking anyone; 2) using “codewords” or 3) contacting law reviews directly.
But everyone would cheat.
Posted by: Scotus | March 16, 2005 at 01:26 PM
That's a good system, John, and it'd be hard to cheat if it were universal. Now all you need is the sort of brute force to impose it on all the law reviews.
Posted by: Scott Moss | March 16, 2005 at 07:17 PM
It would be quite easy to cheat. Well-connected or famous law professors would simply inform their favorite law reviews months in advance that they plan to submit. Law students, lacking a spine, and any real incentive to even read ten papers, would simply choose their papers.
But, this raises another issue. Why should there be law journal ethics ? Correct me if I am wrong here (because, like most, my professional responsibility class was just a mix of platitudes and war stories), but the purpose of “legal ethics” is to provide a structure wherein lawyers will operate in a such a way that there is no need for outside regulation. If lawyers can be trusted to, for example, demonstrate “candor” to the tribunal, then there is no need for non-lawyers to second-guess them on these things. Likewise, all of the duties that lawyers owe clients exist to ensure that non-lawyers have confidence in lawyers, either directly, or because this sort of confidence will generate a specific result.
None of these concerns exist with law reviews. The general public does not read them. Of course, the general public also doesn’t read judicial opinions, but one can sort of argue that they are effected by them. The general public is not directly effected by law journals. The general public is not seriously submitting to these journals. If there is a mistake in a law journal (and there are many) people won’t die! So, why should we pretend that the same principles apply to law journals as to normal law review work.
I applaud you for thinking that legal ethics should apply to just about everything that law students and lawyers do. However, there seems to be little role for such restrictions on behavior when the only things that could be hurt would be the egos of other lawyers.
Anyway, for some comparison to law journals, I legal ethics should apply in these areas:
1) on campus interview: could a firm partner be disciplined for interviewing on a campus that he doesn’t intend to hire from, or hiring someone based on looks or family connections?
2) Promotions in firms or government?
3) Political appointments by politicians who happen to be lawyers ?
4) Jury service by lawyers . (If a lawyer acquits or convicts in a way that a disciplinary board finds unethical, should they be disciplined?)
5) Blogging by lawyers aimed at other lawyers. (Some lawyers have told me that they use their blogs as a way to influence courts in which they appear.)
6) Commentary aimed at non-lawyers. (E.g. should Toobin and others be subject to professional discipline for not researching what he talks about.)
Posted by: s.cotus | March 17, 2005 at 06:51 AM
A couple of former colleagues and I once did a thought experiment using something like John S's system for law review submissions. It wouldn't be hard to prevent one kind of cheating. You would simply program the website to print out 10 coupons, each with a unique serial number. The author then submits the manuscript along with the coupon (or serial number, if the submission is electronic), and the editors at the law review enter the serial number into the website. The website then verifies the numbers. The system also makes it possible to do blind submissions, although S.cotus is right that it would be possible to circumvent the anonymity using code words, self-citations, thank-yous, etc.
The key to the system working is for the journals to offer authors something in exchange for submitting under the coupon system, unless of course the journals could agree among themselves to accept only coupon submissions. One possibility is to read coupon submissions first or to accept expedited reviews only on coupon submissions. Duke does something like this, with its undertaking to give a response within 14 days to authors who submit to only 4 other journals. If this practice were generalized, it may be in the self-interest of authors to opt into the limited submission pool. Authors could still contact reviews directly, famous people could opt out of this system, etc., but if enough journals provided an attractive enough inducement, the number of manuscript submissions might decline.
If it works well enough, authors may even be willing to pay a modest fee per submission. This could be your ticket to fame and fortune, John.
Posted by: Brad Wendel | March 17, 2005 at 01:37 PM
There is an antitrust issue lurking here, but I think journals could say that it's a non-exclusive policy, that is, they will still consider opt-outs.
As for fame and fortune, perhaps I'll file a submarine patent, sit back, let the market coalecse around my solution, then pounce. I can count the millions -- nay, billions! -- now.
Posted by: John Steele | March 17, 2005 at 02:03 PM
I've only been teaching for a couple years, and this practice offends me. I've been told, though, that you have to bid up.
I've got to agree with Dzienkowski, though: To me the cause of this is the perception that placement indicates content value. My most recent experience shows how professors view placement: I have a great piece that Suffolk accepted, and people around here were happy about that. But when Georgetown expressed an interest, suddenly it became a brilliant piece. (Sadly, they ultimately decided not to publish it.)
Why does the decision of some third year students affect the value of the paper, particularly where we now access most journals on-line, and not by subscription? The root cause is, I think, professors, not the journals. On this issue, we have met the enemy, and she is us.
Posted by: David Hricik | March 17, 2005 at 04:31 PM
I agree with you there. I have gotten the most pretentious letters 3d-year students telling me that my article didn’t measure up. Some of them try to make it look like they have secretaries.
On the good side, a few called me “Professor” which inflated my ego, because I am not one. I thinking of writing them back and informing them that I am NOT a professor, but I figured, that since they rejected me, they still would not care.
Posted by: Scotus | March 18, 2005 at 11:31 AM