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August 08, 2012


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I agree with the need for a better filter, but I worry about the effects of pricing scholars at less wealthy institutions (to say nothing of those paying for submissions out of their own pocket) out of the law review and/or expedite game. The two problems you identify seem spot on to me, but the first -- the problem of students not being familiar with the literature -- drives students to use letterhead as a selection criteria as much as the oversubmission problem does. Correcting oversubmission through pricing increases may make sense from an individual ed board's point of view, but its effect (I would think) would be to doubly-advantage those at top schools for whom the pricing constraint doesn't matter.

Ultimately, this would I think further disenchant scholars with the student law-review process, and not just those at schools priced out (or forced to make choices that make them less competitive in the journal placement world). The value of publishing in the Yale Law Journal is related to how prestigious the pool from which the article is selected is perceived to be. When I see an article published in YLJ from a professor at Yale, I discount almost entirely the signal sent by the placement because I assume the pool is at most the pool of articles submitted by Yale profs, if not some narrower pool based on a friendship with the articles editors. Radically limiting the ability of scholars at lower schools to submit to law reviews, if it does reduce the pool to those scholars at top schools, would have the same effect, which is not in the law review's long-run interest. This is not to say that a modest price increase might not be helpful as a filter. But I am dubious about the consequences of the kind of price increase that might really effect submission levels.

Jeffrey Harrison

If the institution covers all costs of submission, a moral hazard exists. People, like me, will send manuscripts to journals knowing the probability of acceptance is near zero. I think for the most part law professors can assess the level of likely placement for many of their works. For example a narrowly focused IP or Crim law piece is probably not going to place very high. Con Law, always has a better chance. To reduce the moral hazard the submission fee could be shared by the faculty member through his or her enrichment account or personal funds.

Charles Paul Hoffman

I had a good chuckle at this post, as my thought during the second paragraph was "hmm, not a bad idea, but there would be some serious antitrust issues...", only to come across your disclaimer at the end.

That said, the real issue would arise because of your single decision proposal. Whether or not it's the intent, it is easily seen (and portrayed) as an agreement by the journals not to compete for articles, to divy them up amongst themselves internally. But, putting the single/joint decision issue aside for the moment, there are lots of other things journals could do to share resources, divide up some of the duplicative work, etc. For instance, the journals could create a review pool of some sort that makes journal-blind recommendations on publication, and from those the journals make individual decisions. If enough schools get involved, it could even bring in serious peer review, since it would be three peer reviewers for each article, regardless of the number of journals to which it was submitted. So long as the final publication decision was left up to each journal (which would of necessity rely on their own criteria/needs), the antitrust risk could be minimal.

Alfred Brophy

Dan, I like the idea of charging for expedites -- probably more than the charge for submission in the first place. Expedites take a lot of editors' time. This would give the students something for their time. It would treat the law review editors, I think, with a little more dignity.


Yes - exactly. I sympathize with the concern, but this is only going to hurt those of us who work at schools with less resources. It's also going to drive up costs for students. I don't know what the answer is - maybe a finite set of submissions or something. But it's not this.

Larry Rosenthal

As important as it no doubt is to relieve the burdens on hard-pressed articles editors, we should worry about the second-order effects of pricing schemes. Since it is impracticable to forbid law schools from reimbursing faculty for the costs of submission, the result of any of these proposals will be to increase the subsidy that tuition-paying students provide for faculty scholarship. Isn't that the last thing we need in legal education right now? Does anyone really want to explain to our students that their tuition must increase yet again in order to spare articles editors some work?

There are many far more effective solutions to the problem with law reviews today. Here at Chapman, for example, we have switched to a model to a faculty-driven model of article selection. The primary objection to this approach, it seems, is that faculty generally don't want to take on the work of selecting articles. Sooner or later, arguments of this character -- the prevalence of which explain so much of what is wrong with legal education today -- will stop cutting the mustard.

Larry Rosenthal
Chapman University School of Law

Alfred Brophy

Larry, those are all apt points. For precisely the reason you suggest (that schools don't want to pay more for faculty scholarship), I think there will be some serious resistance to paying for unlimited expedites. I actually think that if schools started charging for them, that faculty would likely use more discretion in asking for them. (This is not just an issue of reducing work for student editors, it's an issue of respecting their time and not asking for an expedite unless you really want it.) Also, because the subsidy goes to reviews -- and thus probably would reduce the subsidy schools have to provide to reviews, I'm not sure this would end up being so costly to schools.

On a separate point, I'm happy to hear about the faculty involvement in article selections at Chapman. I think that's an outstanding development -- and one that's afoot at many schools. This is worth some discussion.


I wonder if the Peer Reviewed Scholarship Marketplace (PRSM, details here: ) is functioning well? That always seemed the a good idea to me--using peer review, but still ultimately letting the student editors select the pieces they want. They also have some excellent journals participating.

Larry Rosenthal


As far as I can tell, Scholastica pockets the fees. From its website's pricing page: "There are two [pricing] options: 1. the journal can pay per submission 2. journals can choose to have their authors pay the submission fee. Journals are charged monthly for all the submissions they've received during that period. If you receive no submissions during a given month, you will be charged nothing." So, it seems that someone must ante up the fees, and that money is likely to come out of the hide of tuition-paying students. What do you regard as the likelihood that a dean, likely concerned about faculty goodwill and wanting to encourage publication in highly-ranked journals, will refuse to reimburse authors for submission fees?

At Chapman, faculty is now playing the primary role in deciding what will be published. The bulk of our articles will be devoted to a theme selected by an individual faculty member who will be responsible for identifying and/or soliciting appropriate articles relating to that theme -- something approaching a symposium format. Even for unsolicited articles not related to a topic featured in an issue, students will perform an initial screen, with all final decisions made by faculty. All substantive editing (to the extent any is needed) will also be done by faculty. Without reviewing all the arguments about students selecting articles, suffice it to say that, at least in my view, if we are going to devote scarce institutional resources to publishing a law review, we should publish what our faculty regards as important scholarship, not what our students regard as important scholarship.


Doug Richmond

Involving faculty in the article selection process won't accomplish anything; they will simply select the articles that meet their narrow interests and perpetuate the problem that already exists, i.e., the publication of millions of con law articles and other articles that have limited value to courts and practitioners. And scholars in fields like insurance law and professional responsibility will fare no better because their articles will be no more attractive to most faculty members than they are to law review editors.

Alfred Brophy

Hi Larry,

Thanks for your response. You and I were talking about somewhat different issues, I think. I'm no fan of Scholastica's fee, at all, in any way. I thought you were responding to my seconding of Dan's suggestion that reviews charge for expedites (see my 10:42 comment). In that case it would be the reviews who were pocketing the fees.

As to the question whether the administration will police faculty expenditures: it has happened at the three schools where I've been a tenured member of the faculty, on all sorts of issues. And the belief is that expresso's system, which allows submission to dozens or hundreds of journals essentially costlessly, has accounted for the current deluge of submissions. That's the premise of Dan's post. I think telling faculty that they have to pay for an expedite has the potential to really discipline unwanted expedites.

Good to hear about the faculty involvement in your law review. That's a very exciting move!

Michelle Meyer

@Doug -- If faculty peer review is done right -- i.e., the way it's done in the rest of academia -- editors send submissions to referees with expertise in the submission's area. So a PR piece (to use your example) would go not to con law scholars but to PR scholars, who presumably wouldn't reject the piece out of hand due to a bias against their own subject matter (unless your premise is that PR and insurance folks are self-loathing scholars, or that there are no scholarly specialties that are of use to practitioners, and so no pool of specialist referees from which to draw).

It's true that, so long as student editors remain in charge of article selection (as distinct from article review), they may well continue to exert whatever biases they might currently exhibit in selecting articles. But even at this stage, I think it can only help, not hurt, your cause. It should, if anything, be slightly harder for student editors who have faculty telling them, of a PR piece, "This is really important, and well executed, and here's why," to reject that piece than it was for them to reject the same piece before, without that additional information. Some peer review systems even allow authors to suggest names to serve as one or more of the article's referees. Again, if you think there is virtually no one in legal academia who appreciates the kind of articles you have in mind, then that's a different story.

Doug Richmond

Good luck making true peer review work. The Connecticut Insurance Law Journal uses expert reviewers in the manner you suggest and it is not uncommon to wait four months or longer to hear anything. Perhaps that is consistent with the process in the rest of academia, but I am not sure it is helpful. Long story short, the current student-run process is imperfect, but at least it functions on a fairly timely basis.

Michelle Meyer

Four months is actually short in many disciplines/for many journals, so yes, there are clearly trade-offs. My non-law academic friends are jealous of our simultaneous submission and quick turn-around times but aghast when they learn that students select articles with submissions in one hand and the author's cv in the other. There are pros and cons to each system -- and quite possibly there are ways to marry the best of each. But legal academia has to decide what it wants to be and what its priorities are. As they say in construction, You want your project done well, on budget, and on time? Pick two of those three. I'd tend to prioritize quality myself, and then work on mitigating the costs of longer review times (e.g., SSRN).

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