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September 25, 2014


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Paul Horwitz

That's my impression too, Al. I'm less concerned about its effect on P&T issues; I do think, however, that a single-season approach will a) leave editors with no space to pick up the occasional terrific piece that arrives out of season and b) prevent them from taking advantage of occasional opportunities to publish something especially timely. (Of course there is still the online publication option, which is even faster. But I am still a print loyalist, and it is possible these days to publish in print with less lead time than used to be the case.) I also wonder whether there isn't room for some arbitrage here. Surely there are journals out there whose rational response to this phenomenon should be to advertise themselves as accepting fall-season submissions.


I have to agree that Fall Submission is going away, and its a huge problem. If there is a single-window season, I fear anyone but established scholars have no chance of catching the eye of the all-important AEs & EICs, and will be wallowing in purgatory all Spring. The volume is too high if there's just one submission season.

My solution: value peer-reviewed and non-student-edited journals more highly, so 2Ls (without doubt using proxies to value pieces) do not become the all-important centerpiece of our academic discipline. Unless you are a big name, the current system is patently unfair.

Haskell Murray

I think you are right. As to arbitrage, I wonder if schools like Pepperdine and Florida State have had success with their exclusive submission slots that they have advertised from time to time. I also think some law reviews should consider going the blind/peer-reviewed route. I doubt it would be difficult to find professor reviewers, and it would set those law reviews apart from the pack. If a handful of law reviews went that route, I imagine they would move to year-round and exclusive submissions.

Former Editor

If a journal wanted to go the blind/peer review route, it would really be more on the faculty advisor than the editorial board to make that happen. Institutionally, it would be difficult to have a student-centered faculty-peer review process because there's 100% turnover of the editorial board every year. Maintaining the kinds of relationships with a pool of scholars necessary for a worthwhile peer review process would be very difficult without a permanent face of the journal coordinating everything.

Haskell Murray

I think the blind/peer review route would work very well with a specialty law review. All it would take is one faculty member at the sponsoring school who gets out and knows a fair number of people in his/her field. It wouldn't be that difficult to get a fairly large group of professors to agree to review 1-2 articles a year. Most of us agree to do much more than that for our colleagues already. Such a journal would probably have to move to exclusive submissions to avoid overloading reviewers, but over time it could become quite well-respected.

Michelle Meyer

I was asked recently to "peer review" an article for a student-run law journal that touts its status as a "peer reviewed journal" on its website. For various reasons, however, I suspected that the journal had already accepted the article for publication (presumably via the usual route in legal academia, i.e., some combination of student interest, letterhead bias, and perhaps some input somewhere along the way from faculty advisors). My suspicions were confirmed when I discovered that the author(s) had already posted it on SSRN as forthcoming in this journal. Needless to say, this is not peer review. The student editors did not want me to review the article and advise them on its suitability for publication in this venue. Rather, they wanted me to (anonymously) help make the article better. (My first tip off that this was not actually a peer review request was when the student editor who contacted me implied that I was a suitable candidate to "review" the paper not, primarily, because of my subject matter expertise but because (s)he had come across some blogging I had done on the subject and felt that I was a good writer.)

I'm somewhat torn about the practice of asking other scholars to serve as anonymous readers to improve the quality of an article's argument and writing. Getting other scholars to read one's work is especially critical in law, since the star note plays a similar role to one's cv/letterhead. Yet getting busy colleagues to do this is not easy, and it's probably easier for requesters who are at fancy schools, have more or fancier friends, and/or feel more comfortable asking strangers and acquaintances for favors. So there may be some attraction in the idea of evening out that playing field a bit by having student editors match articles and readers. I am not torn torn, however, in concluding that this does not constitute peer review and that it is extremely misleading to indicate otherwise, whether on the journal's website or an author's cv. So, law journals, as you continue to innovate, please don't do this.

As for establishing a real peer review process in legal academia (or, for that matter, the anonymous reader process I described above), I disagree with Former Editor that student editor turnover is a significant obstacle and that the burden would necessarily rest on faculty advisors. FE assumes that the institution of peer review depends on ongoing relationships between journal editors and scholars. It doesn't. I have three articles for review on my plate now, from three different journals, and in each case, I was cold emailed by someone on staff with whom I had no prior relationship whatsoever. It's really not that hard: you set up a database of potential peer reviewers in various fields (admittedly a smaller task for niche journals than flagship law reviews) and populate it over time, perhaps tracking those who accepted the request to review and submitted helpful reviews on time, etc. The next generation simply uses the ever-growing database to make requests. Where your database comes up empty for a specific subject matter area, Google -- or Google scholar -- is your friend.

The real obstacle to bringing peer review to the legal academy is the absence of a culture of scholars who see it as part of their reciprocal duty to review one another's work for possible publication (the rule of thumb is that you should review three manuscripts for every one you publish). I don't know how to change that culture except to say that if you are bothered by the various biases built into the current system, you should accept a request to peer review an article (yes, for free). Are there free riders in the peer review system? I'm sure there are. But the vast majority of scholars outside of law participate in this process. And yes, peer review also has its own biases, and it can be done better and worse (by both editors and reviewers). But, like democracy, it's probably the worst method of article selection except for all the others.

Scott Gerber

I have found that this fall has been particularly difficult to get law reviews to even _read_ submissions, especially if the author doesn't teach at a first-tier school. In short, if Al Brophy is having trouble placing his terrific work from UNC, think about what the rest of us are up against. I once wrote an op-ed about this with a friend of mine. Here it is:


It just seems implausible, and about the worst system one can imagine, that we now have a three-week submission cycle in which newly minted 2L editors, many of whom have never read a law review article before, will select a full-volume's worth of work in an amazingly short period of time. And people wonder why legal scholarship is not taken seriously other than by those who succeed in this very odd system, that no one would ever create if they were trying to do serious review of work.

Former Editor

Michelle, we may not disagree all that much in the end. I've participated in peer review outside of the law field and agree that, as a general matter, it's not a network of profs who all know each other and that reviewers are for the most part self-motivated or culturally motivated to do reviews well and in a timely manner. The reason that I believe that for peer review in legal scholarship to work there needs to be a faculty advisor in the middle is really cultural. The yearly student turn over is, in my view, a huge factor in the cultural problem.

Simply put, enough law faculty don't take "freshly minted 2L editors, many of whom have never read a law review article in their life" seriously enough for a peer review system filtered through the students to work on publication timelines expected of law reviews. It can be extremely difficult for students to get authors to meet deadlines when it's the author's own work being published. I have real trouble seeing how enough reviewers will feel sufficiently obligated to turn their reviews around on a student created/enforced schedule for a system without faculty peer pressure to work in the law field.

Obviously, it's not that every faculty member disrespects student-imposed deadlines, but enough of them do and the disrespect is patent enough (as I think the quote I used evidences) that student editors make decisions with it in mind. In my view, responsible student editors would be really hesitant to experiment with a peer-review system without a faculty advisor who can vouch for, and pressure if necessary, the pool of reviewers.

Michael Kang

Al, I totally agree that the fall cycle is going away and would argue that it's been a gradual process that dates back for years. I guest blogged about this worry a few years ago here:

Alfred L. Brophy

Thanks for the kind words, Scott. I think legal history has become very difficult to place in law reviews -- I understand that 3L editors want to work on articles related to their careers/interests, so constitutional law, criminal law, environmental law, corps, health care, etc. are all going to be taken before legal history. However, I think we may be at the point where a lot of really high quality legal history pieces are not finding homes and (borrowing Paul and Haskell's point about arbitrage) I wonder if journals might pick up some really high quality pieces that will return citations for an extended period of time. The difficulties of law review placement in some subject areas and also the uncertainty of editors' decisions is probably helping peer review journals.


YMMV, have seen odd things this summer. My student placed well while colleagues did not fair as well.

Based on what I see in students' legal research in general, I suspect the younger editors are more Google-reliant (perhaps Google Scholar?) in their screening reviews, so the visibility of your topic and of your ID to Google searches might be a contributory concern.

Ronen Perry

Al, I hear ya. You must admit it has become totally ridiculous: hiring, promotion, and tenure decisions are based on 2Ls' (in)ability to select 12-15 papers out of 2000-3000 within 4 weeks in the spring. What a system.


I would think that arbitrage would be impossible in a system where there isn't enough institutional memory by the students to understand the submission cycle in which they are competing. If, as we believe, the selection is done by 2Ls who have not read law review articles before, what makes us think that they would understand the submission system well enough for them to realize that they are receiving less quality articles than they could have otherwise? And if one group of editors does decide to change, can they ensure that the change actually sticks around for more than one year?


The peer review process is not such a tonic. Having been published and rejected by peer reviews AND having been asked to oversee the process as a special editor, I can tell you the following: (1) there is definite bias from the reviewers in favor of their own positions (and they refer authors in their reviews to their personal publications so they are cited). so basically authors are "coached" into citing peer reviewers' work its leverage to get the reviewers to say "accept"; (2) 2 peer reviewers can have diametrically opposed views on the same piece showing this is not a great marker of "quality" and (3) CV and letterhead bias is a big factor as it is used by the initial gatekeeper editors to screen out before sending to peer reviewers. In other words, new authors with novel work will have just a hard a time making it through the initial gatekeepers than publishing in a top tier student edited law journal.


Getting back to the original topic- is the fall submissions cycle becoming extinct just for the first tier journals, or all the way down to the fourth tier, or somewhere in between?

Alfred L. Brophy

ML--thanks for asking that very important question. I don't know, but I hope some others will suggest their experience. Related to this, Orin Kerr has a ton of useful advice on placing articles over at prawfs this morning, which I'm planning on putting into use in the spring:

Former Editor

I suspect that most lower-tier journals, of which mine was one, are looking at fall submissions (or whenever submissions) and will do their best to make room if something really good (including the editing, as Prof. Kerr pointed out on prawfs) or really timely comes in. The quality of submissions to lower tier journals is very, very uneven. Good EiC's and selection editors at those journals try to keep some spots open for late submissions rather than publish trash. For the record, I'm mainly talking about the flagship journals of lower ranked schools here.

One thing to keep in mind in this discussion, though, is that journals may be (and I know of a few that affirmatively are) shrinking their pages published per year across the board. As was discussed on the thread that got me posting under this moniker, shrinking law school budgets and class sizes places dual pressures on journals at lower ranked schools.

Funding for journals (read: printing and symposium budgets) are pretty easy targets for dramatic cuts at schools without strong faculty or administrative advocates for those journals. Smaller printing budgets means fewer pages published and consequently fewer and/or shorter articles unless the journal is willing and able to publish online-only, which many aren't (for good reasons not relevant here).

Shrinking class sizes also has an effect in that a smaller class size limits the human resources of a journal. Many schools have a GPA or class rank requirement for journal membership and an overall smaller class means a smaller pool of eligible students to join a journal and edit accepted articles. At schools that have dropped admission standards to keep class sizes at a functional level, the problem is compounded in that there is a smaller proportion of students capable of doing the work in each, already-shrunken class year. One rational response to this problem by EiC's and selection editors is to lower the number of articles published to match the ability of their staff to edit what they do take on an acceptable publication schedule.

Paul Horwitz

Thanks for those points. Sounds right to me.

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