March 16, 2005
Ethics and Law Review Submissions
Posted by Christine Hurt

Professor Dzienkowski at Legal Ethics Forum has posed timely questions regarding ethical duties in the law review submissions process.  Among the issues he flags, he reminds us that in the bidding-up game, we should be candid about the nature of the offers that we are attempting to use as leverage.  I agree, even though I have been tempted to mumble or fade off the last part of an offer to make it sound better. 

I teach a seminar in Business Ethics, and we have recently discussed this phenomenon:  in situations that we believe to be amoral situations or unfair situations, we don't feel obligated to follow ethical duties anymore.  (For example, in sales, everybody lies and everybody expects to be lied to, so I don't have a duty not to lie if I'm a salesman.)  I think I have almost fallen prey to that misguided analysis in the bidding up game.  I rationalize to myself that the game is stupid or unfair and that everyone else playing the game is lying or engaging in unethical behavior.  Therefore, if a law review editor is going to judge my paper based on my law school affiliation or dagger footnote, then I am justified in saying that my offer is from "University of State" and not "University of State -- Western Branch."  I have never succombed to the temptation, I am happy to say.

Another ethical dilemma assistant professors hypothesize about involves retracting an acceptance given to a law review when a better-ranked law review calls a week or two later.  I have known several people in this position, and none of them retracted their earlier acceptance.  The most frustrating case I know of involved a colleague who was in the middle of the AALS hiring process and accepted a placement at a specialty journal at Harvard.  Then, the main law review at Stanford called.  He did not retract his earlier acceptance, although I'm sure the temptation was high given his job search.  All's well that ends well -- he is in a situation that is great for both him and his wife -- and I hope that he's glad he took the ethical high road.

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Comments (8)

1. Posted by Erik Newton on March 16, 2005 @ 15:27 | Permalink

I have a solution: exclusive submission. Peer reviewed journals don't have to deal with the bidding up problem since authors only submit to one journal at a time. I just founded a journal at GMU Law last year, and couldn't bear the thought of being just another journal in the bidding chain, so we went exclusive submission. It's been a challenge to educate all the authors, since they tend not to get the concept, but it's starting to catch on. Now all we have to do is convince all the law reviews to follow suit!


2. Posted by Gordon Smith on March 16, 2005 @ 16:40 | Permalink

Erik, That's interesting. Thanks for alerting us to your new journal.

From a law professor's perspective, one of the virtues of the current system (and surely one of the reasons it endures) is that we can publish things quickly. The downside is twofold: we lose the value of peer review and we are required submit to student editing (which can be quite useful or nightmarish, but it is quite variable from journal to journal, and even from editorial board to editorial board). It is possible that your new journal is combining the worst of both worlds, and that would be disastrous.

Whether that is true depends on where you position/take the journal. If it becomes a place where people find good content and authors have a good experience, then you may be able to get away with exclusive submission. As you surely realize, however, this game is all about options, and to impose an exclusive submission requirement, you had better offer something that your competitors don't. So here is an invitation to advertise: what are you offering that I can't get from other student-edited law journals?

3. Posted by Erik Newton on March 16, 2005 @ 22:59 | Permalink

I like to think we’re combining the best of both worlds, but that goes without saying. Our model is basically peer review with student administration. The beauty of our model is that authors don’t have to deal with students editing or evaluating their work, yet the students still get to be involved with the material. And even better for authors, we don’t do any stylistic editing at all, keeping our above-the-line suggestions to the essentials. We also encourage authors to submit shorter articles and to limit footnotes… we think footnotes are cumbersome and usually superfluous.

What happens in reality is that when you submit an article, the articles editors make an initial cut, passing pretty much everything that’s legible on to the referees. The refs then make a recommendation for publication or rejection, which we follow. Yes, the refs can be slow, but we’re coming up with ways to speed them up (money). Also, for now we’re publishing twice a year, and we don’t have a massive backlog, so a good article can get published pretty quickly.

So to sum that all up, we want to make profs happy, we want to cut flab from the process, and we want to keep students in the game. It’s not perfect yet, we’re still learning. But we’re getting faster, we’re attracting more refs all the time, and the submissions are pretty steady.

Our first issue is about to come out. We’ve got articles from Richard Epstein, Neal Katyal, Henry Smith, Doug Lichtman, and a few others. Let me know if you want a copy.

Anyway, I could go on forever, I love talking about JLEP! Here’s our URL again in case it didn’t show up before:



4. Posted by S.cotus on March 17, 2005 @ 7:38 | Permalink

I just heard 2d-hand that your students feel like they exercise a lot more power than you say they do. I wonder if your system is really double-blind, and people make an effort to actually keep the reviewers and the authors identities a secret?

5. Posted by Erik Newton on March 17, 2005 @ 10:14 | Permalink

Hmm, that’s interesting. The reviewing process is definitely double blind in the sense that the authors don’t know who their refs are, and vice-versa. But I’m not sure how that relates to the power that student editors exercise. They do have power in choosing refs, making the initial cut, and determining whether to follow the refs advice. But we haven’t yet disregarded a refs suggestion.

6. Posted by Kate Litvak on March 17, 2005 @ 16:49 | Permalink

Erik: who are the referees? Students, inside faculty, outside faculty?

7. Posted by Erik Newton on March 22, 2005 @ 14:49 | Permalink

Generally inside and outside faculty.

8. Posted by Erik Newton on March 22, 2005 @ 14:52 | Permalink

We would like all the refs to be outside faculty, but we don't have the pull yet to entice them to do the work. We'll get there, though.

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