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August 23, 2010


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Orin Kerr

I don't think there has been a significant change.

Jessica Litman

I think that sending an article to a journal from which one wouldn't accept a publication offer is massively disrespectful to the students who will read the article, discuss the article, seek advice from faculty at their school on whether to publish the article, argue with their fellow editors about publishing this article rather than some other, and then send out an offer for the article. It is also not very considerate of other scholars who would like to be published in this journal but whose article is crowded out by reviewing and selecting an article whose author has no interest in accepting it. Yes, Expresso has increased the number of submissions, in much the same way that OSKAR has increased the number of clerkship applications. You wouldn't urge your students to apply for clerkships they were unwilling to accept. I have had a number of students who have published student work in law journals, and not one of them needed to submit their manuscript to more than 50 journals. If an author is unsure whether an article is likely to appeal to top law reviews, it makes sense to submit to a range of different journals, but it makes no sense to include journals whose offer one would reject simply to generate an opportunity to play the trading up game.


In the other thread, I railed against submitting to journals that the author knew she wouldn't publish with, attached a very low probability of publishing with, or didn't reflect upon whether she would publish with. To my thinking there was no defense of that practice -- after all, one can always offer the piece to lower ranking journals later if one really goes without other offers -- other than the fact that it inured to the author's advantage. Expresso makes it nearly costless.

What can be done?

1. Everyone should advise against it. There seems to be a difference of opinion as to whether it is genuinely unethical or bad form; I'm not persuaded one needs to hedge, but there you have it. It seems plain to me that it does a disservice to other authors and the student editors, whose education we are supposed to be facilitating. Given the incredibly low threshold for tenuring among law schools, it is hard even to claim that it's a necessary concession to one's junior scholars.

2. Expresso should be tweaked. One might cap the number of submissions of any piece; law schools might, for example, refuse to pay for more than N submissions. Alternatively, journals might be able to see, if not the precise identity of the other journals to which it was submitted, at least the raw number of submissions. There would be strategizing -- e.g., submitting multiple manuscripts, whether retitled or simply re-entered -- but that would at some level force authors to recognize that they were cheats.

3. Law journals should innovate. Authors could be asked to submit a pledge that they have not submitted to more than N journals. Authors could be given shorter deadlines by which to respond to offers. Journals could decide to give only one unaccepted offer every N years to any given author.

Solutions 2 and 3 are crude measures for non-genuine submissions, but they would have the collateral benefit of reducing what is probably unnecessary volume attributable to other reasons.

John Nelson

There is too much variety of experience to generalize.

Each article is different. Each author different. Each journal different. Each journal's board differs each year.

I do believe the tendency to submit to more journals has increased. After all, it is easier to submit.

Is it necessary to submit to a large number? That's a good question.

Right out of law school I had an article published by a specialty journal. I submitted it to 24 journals. I got one offer. It got published.

A year later I sought to have my LLM dissertation published. It was a better paper, I believe, and had received some good press.

I submitted it to around 80 journals at the end of August. No bites. I submitted to around another 70 in the beginning of September.

I began to get bites from this second batch. Eventually it was published in a primary law review at a west-coast school.

What I learned from these two processes is that targeting can be important. My first article was specifically targeted to law reviews that, I felt, would be willing to publish my first piece right of law school. This was based on overall reputation and the type of topics they tended to cover.

My second paper was a two-stage process that began with a pie-in-the-sky approach of well-regarded law reviews and topical journals in the first submission, with a followup of more targeted, more likely to consider my article group.

As a non-professor who aspires to one day become a professor, I was willing to let almost anyone publish my article. I did limit my submissions somewhat, however, and I looked into each journal before I selected it. For example, I really like hard copy so I didn't submit to electronic-only journals. (Which is ironic since I tend to write on technology and law issues.)

The two-stage approach worked well. I think there needs to be a balance between aiming high, trying to get that Yale or Harvard placement, along with more realistic submissions based on topic area and journal reputation.

Whether it's fair or not, journals pick authors as much on the author's credentials as they do on the worthiness of the paper. (I remember my journal days and how this was done.)

Similarly, you never know when you might break into a premiere placement, and colleagues regard a journal's reputation as much (or sometimes more so) as the quality of the paper itself.

Finally, I do feel it is unethical to send an article to a journal you don't plan on allowing to publish your article. With the number of journals out there, and the ease of submissions, I don't see what the benefit could be. There are already, in my view, a large number of worthy journals.

After all, there are at least 100 main law reviews from USNWR Top 100 law schools.

As a former member of a topic journal, I can tell you that there is a journal out there somewhere dying for an article. You'd be surprised at the struggle for many journals to reach capacity.

Fiendishly awaiting/ praying for good news (?)

It's a crying shame that this has become a game. But... Though higher-ranked journals bring prestige to your faculty profile, if you write a great piece, people will find it easily. It's not like it was 25 years ago. I have enjoyed working with (and even sparring with) the very bright editors at non top 40 schools. I just submitted broadly and in good faith.

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