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March 24, 2010


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Suzanna Sherry

This proposal is nice in theory but it unfortunately ignores two real-world facts: (1) Willingness to publish in 'x' law review is not the same as indifference between publishing in 'x' law review and publishing in 'y' law review. An author may be willing to publish in 'x' but strongly prefer to publish in 'y'. (2)Many of us who submit articles believe -- based on experience -- that there are a lot of law reviews that do not even consider most submitted article unless and until they have been accepted by another law review and become the subject of an expedite request. Submitting to 'x' law review is therefore the only way to get the article considered by 'y' law review -- although I agree that the author should not submit to 'x' unless she is willing to publish with 'x' should 'y' reject the article.


I don't think I can support any proposal that will make me relive the experience of interviewing for clerkships (twice, every year, to boot). More seriously, I think every journal editor has probably thought about the type of policy you propose. But everything that is wrong with the clerkship market gets transferred to the journal market. Here are some easy author responses:

1. Various gaming strategies that we probably all used to some extent in the clerkship game. For example, authors will stop answering phones to avoid exploding offers.

2. Even more reliance on letterhead and CV at top journals. If you are going to take articles on a 24 hour expedite, you are going to make the decision based almost purely on CV and letterhead. And don't think that the top journals won't try. When I was at Chicago, several lower-ranked journals had exactly the 24 hour (or shorter) policy you describe, clearly designed to frustrate expedites. What resulted was me watching my article editor colleagues scrambling to read and vote on pieces in 1 hour, and being really glad I was not an AE.

3. Even more reliance on personal connections. Largely the same point as (2). But if you are an editor at Harvard, and you have 20 pieces on 24 hour expedite, which are you going to read? Probably the one that the nice professor handed you after class, from that professor or his friend.

4. Even more advantages for those at the top. Is a journal really going to try and give an exploding offer to Richard Posner? Larry Tribe? Does anyone think they will actually enforce it against those people? No use making a threat that both sides know is empty--it hurts your credibility. What this really means is that people at top-ranked schools get 2 weeks, and everyone else gets 24 hours.

5. Nash equilibrium. Thankfully, the self-interested answer is that no journal can move on this without hurting its own market position. For a middle-ranked journal, a reputation for exploding offers will just mean that authors submit to it dead last. The article editors might get less work, but the journal quality and reputation will decline also. The really high-ranked journals that have the market power to pull this off (i.e. Columbia), already have the exploding offer policy you describe.


I don't get it. Why is the current system wrong? It is simply incorrect to say that two weeks is "nonsense" if we want to give other journals a chance to read and decide about publishing an article. Rather, you are saying the time delays are nonsense because you think expedites and shopping articles up is something to avoid or abolish. Why? Why is the current system bad? What's immoral about "what authors do" during the waiting period? I think it provides intelligent (albeit imperfect) sorting of the quality of the articles. I just don't get your underlying assumption that something is wrong or undesirable about our current system.

Also, the top journals already do what you suggest - several of them expect authors to accept or reject publication offers within 24 hours. That's because nobody really needs to publish higher than Columbia in terms of prestige, and because it takes less time to get answers from the two or three journals that might be ranked higher. And a lot of authors I know don't even bother submitting to those top journals any more.

If a third-tier journal gave me 24 hours to make a decision, I would simply decline it. You are mistaken in suggesting that I wouldn't be happy to publish with them if I received no other offers during the following two weeks. In fact, if the same journal gave me two weeks and I received no other offers, I would publish with them and be content. But I wouldn't accept an ultimatum that forced me to forego other (realistic) opportunities for no good reason.

I know other academic disciplines use the exclusive-submission system, but I really think the law review system is better. I read a lot of journal articles from the economics and behavioral sciences journals - and I do not think they are of superior quality to the law review articles published by the top 50 journals. On the contrary, many of them are repetitive, circular in reasoning, underdeveloped in terms of ramifications, etc. The exclusive-submission peer-review system is subject to just as much manipulation, gaming, and information errors as the law review system, just in a different form.

I like your analogy to the judicial clerkship system, but I cannot understand why anyone would want to replicate or mirror that - I think that system is awful, maybe even exploitative. Law students regularly feel compelled to accept an offer from a judge that requires relocating and/or disrupting their family, working for a judge with whom they feel a little uncomfortable, etc. - basically, their last resort for getting a clerkship - and foregoing potential opportunities for positions that would have been a much better fit for both the clerk AND the judge. The clerk accepts it because they want a clerkship enough to tolerate the inconveniences, but they AND the judges might have been much happier if the system allowed for better matching of interests and needs. I think THAT system is broken. It forces tragic choices unnecessarily, and highlights the power gap between the judge and the potential clerk. It prevents an optimal sorting or allocation of labor. The judge apparently doesn't care enough about who is sitting in the clerk's office to bother making offers to lots of candidates, and the candidate has to take whatever comes first, regardless of how much more valuable another clerkship might have been to that candidate (in terms of location, interpersonal comfort level, subsequent opportunities, etc). All clerkships are not equal for the applicant; the first offer might be better than no clerkship at all, but might be far less desirable than the opportunities that must be foregone.

And that brings us back to article placement. I have an offer right now from a third-tier journal. I will certainly publish with them if no first or second tier journals make me offers. I'd rather publish with them than not publish at all. I withdrew my submission from the other third-tier journals immediately, because there is no reason to switch to them from the one that made my offer. But if Fordham or Vanderbilt made me an offer, that would be much better for my future placement of articles, and the number of people who will read and cite my article. Those are all important to me. Is there any sense in which that is wrong? I can't think of one. If the same third-tier journal had given me 24 hours to decide, I would have declined. I think I have reasonable odds of getting another offer that is at least equal to it eventually. I think your proposal would hurt the journals as much as the authors.

I think the real problem with your suggestion is that you are ignoring opportunity costs completely. The journal incurs no opportunity costs in making offers to people who ultimately decline because they traded up - they can just make more offers to other authors. Your suggestions does not benefit the journals in the end, except to save them some very minor transaction costs. But the opportunity costs of your proposal for the authors are very significant, just as they are high for clerkship applicants right now. I can't see any offsetting justification for introducing those costs into the system.

Jeff Yates

Here's an alternative proposal (please read in the light-hearted spirit intended; it's a fun vent)

1) Author submits to *one* journal and waits 4-5 months for "journal judges" to determine if it might be worth publishing.
2) 4-5 months later journal editor informs author that s/he might be willing to accept manuscript for publication if s/he makes some pretty difficult 'revisions' to the text and/or statistical analysis.
3) Author takes 2-3 months making said changes and sends it back to editor who then gives it to the original journal judges and a couple more judges just for good measure.
4) 4 to 5 months pass by and author gets letter from journal editor stating that although author made all the suggested changes, certain journal judges still have "concerns" and new judges dont like it as much as the old ones did. Respectfully, must decline the manuscript and certainly understands the author's disappoinment.
5) Repeat steps 1-4 for approximately 1-2 years with frequent updating until 'the planets line up correctly' and some modified version of the original manuscript (in some ways better, but in some ways worse) is accepted for publication in a journal.
6) Repeat entire process 7-10 times in 5-6 years = tenure :-)

Miriam A. Cherry

Tim, I'm also concerned that your proposal would create even worse incentives than the system it would replace (see above). Best, Miriam


I think the top 20 journals should do this for sure as a strategic matter. I don't think many people would turn down UCLA or Northwestern or Texas (maybe I'm wrong), so why shouldn't they give 4 hour deadlines? If I were an editor at a top 40 journal and was making an offer to a less established person, I'd do the same thing. When I was an editor at a top 14ish school, we started giving really short windows and got an article that later got an offer from a top 3 journal (I assume before the author had time to withdraw(?)).


anon no. 1, it is sad that you seem rather proud of the accomplishment. There is a definite race-to-the-bottom dynamic here, which is neither to the benefit of authors nor to the journals collectively. Nobody has really considered where all this ends. Authors hold an ultimate nuclear option: reneging. What is a journal going to do if an author decides to publish a piece with a substantially higher ranked journal? Sue for specific performance?

One answer is to blacklist the author. But it is a pretty big jump from a 14ish journal to Harvard for career prospects and future publication acceptance. Not necessarily against the author's self-interest to renege in such a case, which just shows what the pits will look like if everyone is going to play hardball.

Paul Edelman

cf. Law Clerks, Law Reviews & Some Modest Proposals 7 Green Bag 2d 335 (2004)


I see your point, anon no.2, although it does seem like an accomplishment from the perspective of the journal to get an article that was so good it could be in a better journal. I think that is the goal of every articles editor, right? It is a competition for articles. Or, I guess in your view is the goal for editors to pick articles that deserve to end up in their level journal? Should they avoid articles that really should place higher?

Reneging would be a breach of contract, but I guess you're right the chance of a suit is small. I don't know what we would have done if the author had just come to us and said they got a better offer and it would really help their career if they took it. I assume it would depend on the circumstances.

Give Us Break, Will Ya'

Not only do I disagree with Tim's proposal, I disagree with 24 hour deadlines. They are poorly thought out and editors who use them might get black balled on the academic hiring market.

I can tell you from personal experience with the academic publishing world, that the top university presses will give you an unlimited time to decide, and as long as you give them a heads up (all but California) won't mind your shopping the book project around.

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