April 05, 2005
The Ethics of Expediting
Posted by Gordon Smith

An artifact of the multiple submissions that characterize the law review publication process is the practice of expedited review. Here's how it works: the author submits her paper to tens of journals (say, 40-100) and awaits offers. When the first offer arrives, often from a journal ranked in the lowest quartile, the author contacts all or some of the journals ranked above the offering journal to request expedited review. The author explains that she has an offer outstanding from the ________ Law Review, but would be pleased to ditch them in favor of higher-ranked journal. The only catch is that the higher-ranked journal needs to respond before the offer explodes. In some instances, this might be a couple of weeks, but in other instances it may be as short as 24 hours.

As you can imagine even if you have not participated in this sport, the expedited review process is full of ethical minefields. For example, many authors work the process in stages, requesting expedited review from journals in the next higher quartile, getting an offer, then repeating the process for the next group above that. The staging of expedited reviews is a response to the impression that editors at top law reviews will not pay attention to an expedited review request if the offering journal is published by a second- or third-tier law school. In other words, to get an editor's attention, you need an offer from a journal that seems to be close to the same ranking as the editor's journal. The necessary consequence of this process is that a journal in the middle may do an expedited review, make an offer, and then lose the article to a higher-ranked journal.

Law reviews have developed various mechanisms for managing the expedited review process. Some promise quick decisions for exclusive submissions. Some issue "exploding offers" (usually 24 hours or less). In most instances, however, the student editors have decided that they need to play the traditional game to get the best articles possible for their journal. What are the ethical obligations of the authors?

Earlier today, I received this email from a reader of this blog:

I am an articles editor of a top 25 law review.... We have had 2 times (maybe 3 after today) where an author has expedited something to us (on less than 24 working hrs time) and then went with the journal they expedited from after we made the offer. This seems problematic to me....

Me, too. Setting aside for a moment the ethics of expedited review generally, if authors are going to play this game, they should play with at least a modicum of decency. For me that means this: if an author asks for an expedited review based on an offer outstanding from the ________ Law Review, the author should have already decided that a new offer from the expediting journal would trump the existing offer. Otherwise, in my view, the author should not request an expedited review at all.

This seems obvious to me. The more troubling question is whether the request for an expedited review implies that the author will not use an offer based on expedited review as the basis for further requests for expedited review. In short, is staging ethical? I have done it, and I have advised others to do it, but it must seem a hardship to the editors who go to the trouble of expediting and offering, only to be used as a rung on the ladder to higher-ranked journals. Can expediting journals effectively self-protect by placing conditions on offers based on expedited review? I would be interested to hear thoughts about current practices and problems. 

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Comments (28)

1. Posted by Christine Hurt on April 5, 2005 @ 8:35 | Permalink

Ok, I admit that the first time that I sent out an article I requested an expedited review, I ultimately turned down for the original offer. I will admit that I did that not out of a sense of gaming, but out of naivete. I received my first offer (Iowa), and was told to "call all the law reviews above Iowa based on the 'peer review' column in USNWR and ask for expedited review." I did that, and the only offer that resulted in was the school right next to Iowa. So, in effect, the offers were identical. The publication schedule was identical, I wasn't going to be lead author on either one, etc. I went with the original offer out of some sense of loyalty to the review that chose me first. Now, I realize that if I am going to play the expediting game, I should not call reviews that are virtually identical to the original offer (or even marginally more prestigious).
However, I think there is a contrarian view here -- if you are viewing offers as mere bargaining chips. Say you have an offer from #25 school. You ask for an expedited review from #1 to #24 and receive an offer from #24. What have you gained? Plenty. You now have an excuse to call schools #1 to #23 again ("I just wanted to give you an update on where I am. I now have offers from #25 and #24.) Also, you may get a new deadline. If the #25 offer is running out, but you know that the expediting schools don't have time to meet the deadline, the #24 offer will start the clock again.
What insanity!

2. Posted by current editor on April 5, 2005 @ 8:45 | Permalink

I think expediting is an interesting thing. I certainly think it is ethical to use lower offers to get higher offers--if the lower journal wanted to disallow expediting they could give you 1 minute to decide.
But, in the situation where an author expedites to a slightly higher (or substantially equal) journal, I think the author is under an obligation to say: I have a offer with X and will only go with your journal if you do Y (e.g., publish my article as your lead article, etc).
That said, I think many authors have not thought of this (so I understand Prof. Hunt's situation), so I am glad y'all are talking about it!

3. Posted by new editor on April 5, 2005 @ 9:39 | Permalink

At a top law review, I won't bother to read an expedite unless the author explicitly agrees that they will not accept the original offer if we give them one. Otherwise, the author is usually trying to simply use the slightly higher-ranked journals to extend their time and "game up" to the top journals. This is basically unacceptable to everyone involved. Please remember, most of all, that we are simply law students. We have class, wives, husbands, children, extracurriculars, and generally lives outside of this. When you send something to us on a 24-48 hour expedite and we drop EVERYTHING to read it, you should be serious about what you are doing. It not only intrudes into our regular schedule of article reading (which is, of course, hundreds of pages a week). But it also interferes with everything else we have going on. If you are ever wondering why you some law review editors aren't showing up to class prepared or enthusiastic (see your previous posting on blind grading), a lot of it has to do with this process.

4. Posted by Jack Chin on April 5, 2005 @ 10:21 | Permalink

Responding to Professor Hurt's post, why does anyone care about being the "lead author," in the sense of being the first article in the issue? Articles are not formally ordered by (student perceived) merit in any given issue or volume, and in any event unless you are Page 1 of Issue 1, no one will be able to tell later (Westlaw and Lexis don't disclose that the article beginning on page 552 was the first in that issue).

5. Posted by -Dave! on April 5, 2005 @ 10:27 | Permalink

And lawyers wonder why the general public questions their ethics? Look who we learn them from? :) No one should ever accuse academia of being less ruthless than the corporate world.

Seriously, I think lower journals should condition their offers on 18 hours acceptance. If that's not enough time to shop the submission around, well, too bad. There are other things lower ranked journals could do to attract better caliber articles. Like the crazy notion of allowing authors to retain copyright.

Lower ranked journals have a choice: play this silly game and continue to lose articles to higher ranked journals, or buck the system and offer true innovation.

Of course, I could be full of it...

6. Posted by Kaimi on April 5, 2005 @ 10:31 | Permalink

To follow up on Christine's post, I think that the normal practice (at least, my practice) isn't to expedite from #55 to #54.

On the other hand -- and this was my experience -- every expedite can help, in that it (1) buys time, and (2) sends a signal that your article is "hot."

So, for a past article (changing the number slightly), I got an initial offer from #100. I expedited up the ladder. I got an offer from #55. I re-expedited.

Then I got an offer from #54 (based on the original expedite, from #100). At that point, I re-re-expedited -- i.e., I called Harvard, Yale, etc with news of my new #54 offer. I don't know that I would have accepted #54 (thankfully, the point was eventually mooted by a substantially better offer). But I was happy to take the extra day or two of deadline flexibility.

Similarly, a person asked me earlier this season about an offer. He received a quick-deadline offer (less than a week) from a lower-end journal. I suggested that he might try fishing for an offer from peer journals for the sole purpose of re-expediting -- i.e., try to get an offer with the more traditional (for lower end journals) 2-week deadline. I suggested that even if that meant turning down an offer from short-deadline #140 if he got a 2-week offer from #150, that would be a gain, because he would then have 2 weeks to try to work his way up the ladder (rather than the unworkable deadline that #140 gave him) and the difference between 140 and 150 is pretty minimal.

7. Posted by Clerk Writer on April 5, 2005 @ 10:41 | Permalink

To be fair to us newbies at the process, there is some ambiguity in rating specialty law reviews vs. general law reviews. My article has been accepted at a top 10 specialty law review and I have sought expedites from a lot of general law reviews. I'm not 100% sure I would accept offers from all of them, because I don't know whether they are better than my original offer. In an ideal world, I wouldn't do this, but as far as I know there is no "right" answer here. I've asked a mentor for advice, but haven't heard back. So, for now, I erred on the side of over-expediting.

I apologize to the poor editors I may have burdened.

8. Posted by on April 5, 2005 @ 10:44 | Permalink

Doesn't it seem wrong, though, that you would make #54 read the article only to tell them no? Why take #55 over #54 anyway?

9. Posted by Kaimi on April 5, 2005 @ 10:50 | Permalink

The #54 was already reading it (as was everyone else) because we had earlier expedited from #100.

I guess there's a possibility that one should withdraw from immediate peer journals on receiving a first expedite. I haven't seen that position argued. However, I don't know that that would be the best result. #54 had a serious shot at acceptance -- had I been forced to decide between the two, it would have been close. I didn't have to decide, because as it was, I eventually got a higher offer that made all the earlier offers moot.

10. Posted by on April 5, 2005 @ 10:50 | Permalink

Re: clerk's situation. While an apology is nice, I wonder if law reviews will create some institutional/cross-institutional knowledge base. If an author is known to have expedited to a school and taken the original offer, I think schools should refuse to read expedites unless that author tells the expediting school they will take the expediting school's offer over the original.

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