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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"Last week, Gordon Smith posted thoughts about the expedite process that generated many comments. The ..." [more] (Tracked on April 11, 2005 @ 14:47)
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