August 15, 2006
Kim Roosevelt will make an apprearance here tomorrow for the inauguration of the Conglomerate Book Club. In the meantime, he is guest blogging at Prawfs and poses the important question: To Sympose or Not to Sympose? (I notice that Ann is also dealing in coined verbs today.)
The comments are already going over there, but most of them are approaching the topic from the standpoint of a reader. Dan Solove offers some advice from the standpoint of the symposer (?):
As for whether to do a symposium, I typically decide based on whether the topic is something I really want to write about and whether the participants are people I'd enjoy being at a conference with. I've participated in a few symposia early on in my career, and I met a number of people in my field I had been wanting to meet. I'm generally pleased with my symposia pieces -- not my best work, but not bad either. I'm glad I participated in the symposia I did.
Today I am attempting to complete a draft of a symposium article -- my third of the summer -- so I feel inspired to add some reflections on this topic. Dan identifies two important considerations:
- Would you "really want to write about" this topic anyway? It took me a few tries to learn that I cannot just whip out an article for a symposium. Perhaps others are capable of doing that, but my symposium pieces usually end up requiring a fairly substantial investment of time, no matter how modest my initial aspiration. As a result, on more than one occasion, I have been stuck cursing my symposium piece for preventing me from working on the piece that I really wanted to write. But if the symposium piece is what you really want to write, have a ball!
- Will you meet some important or interesting people at the symposium? I agree that this is an important consideration, especially for young faculty and especially for young faculty who want to become upwardly mobile. Face-to-face meetings create a connection that is impossible to emulate in the virtual world. Also, having your name on the same issue with Professor Famous can be good for your personal brand.
Dan makes another point that is worth noting. He calls his symposium pieces, "not my best work, but not bad either." I think this is a common attitude among law professors, and it inevitably affects the way scholars approach the reading of symposium pieces. Nevertheless, being somewhat familiar with both Dan and his work, I suspect that the description of his symposium pieces is slightly misleading. In my experience, symposium pieces can represent very high-quality work, but they tend to tackle a narrower range of issues. For example, I have written three symposium pieces on venture capital, each of which was fairly targeted, but my non-symposium piece published last year was quite expansive.
So, how did I end up writing three symposium pieces this summer? I need to give some background to answer that.
Several years ago, I sat down and wrote a personal statement entitled "Research Agenda." I had done this less formally early in my career, but I wanted this document to serve as a guide for future projects. The final product was about five single-spaced pages, and it contained fairly detailed notes on future projects. I still revise the statement regularly to make minor adjustments, but the core projects will last at least a decade, perhaps the rest of my career.
Whenever I receive a conference invitation, I consult my research agenda. If the project will advance one of the items on my agenda, then I start thinking about other considerations, such as the timing or prestige of the conference or whether I would see friends or meet interesting new people. Two of my symposium pieces from this summer are directly connected to items on my research agenda, and the third was the Bloggership Conference, which just sounded like fun.
For me, then, the bottom line is that symposia are valuable in moderation.
July 26, 2006
Remember that "Call for Debate" issued by the Yale Law Journal? Well, the deadline is next Tuesday, which means that I know what I will be doing for the next week.
When I first started writing as an academic, I drafted an article entitled "God, Mammon, and Corporate Law." Though that article never made it to press -- instead, it morphed into my most-cited article, The Shareholder Primacy Norm -- I blogged about the central idea almost three years ago: "attempts to promote corporate social responsibility through corporate law are misguided."
As our faithful readers know, I remain interested in the ideological divide between "progressive" corporate law scholars and the rest of us. Last year I was asked to review a book manuscript by my friend, Kent Greenfield, who has written insightfully about his views on corporate law for many years. Those writings form the basis for The Failure of Corporate Law: Fundamental Flaws and Progressive Possibilities, which is forthcoming from the University of Chicago Press. While writing the review, I thought that Kent and I should have a debate about the premise of the book: that corporate law can change the world. YLJ's call for debate crystalized my resolve, and Kent agreed.
Of course, we both recognize that corporate law matters, but we disagree sharply in our estimation of the scope of corporate law's influence. Perhaps I will say more about the substance of our disagreement in a later post, but for now I will limit my comments to a simple observation about the state of play. Both Kent and I are conscious of the need to say something fresh, and over the past few days, I have been reviewing the classic debate between Adolf Berle and Merrick Dodd, which was launched by Berle's famous article, Corporate Powers As Powers in Trust, 44 Harv. L. Rev. 1049 (1931). I have been struck by the fact that both authors place such faith in the ability of the shareholder primacy norm to influence corporate decision making. Too bad they didn't have Brayden's recent post on that subject.
June 14, 2006
In The Know-It-All, A.J. Jacobs tells this story about his father, Arnold S. Jacobs, a corporate and securities lawyer with Proskauer Rose in New York:
My father is proud of his footnotes. A few years ago, he broke the world's record for most footnotes in a legal article, coming in at an impressive 1,247. Soon after that, a California law professor topped my dad's record with 1,611 footnotes. My dad didn't stand for that. He wrote another legal article and just crushed his opponent. Squashed him with 4,824 footnotes, ensuring his status as the Wayne Gretzky of footnotes. My dad tried to get the Guinness Book of World Records interested, but legal footnotes apparently don't get the same respect as fingernails the size of adult rattlesnakes. So he had to settle for a mention in Harper's Index.
Has anyone (other than Arnold Jacobs) ever thought to investigate the "world record" for law review footnotes? Does anyone (besides Arnold Jacobs) think this is a worthy competition?
When I was publishing my first article, I pulled the plug on the editors at the North Carolina Law Review, who were adding ids and supras and infras in volume. My draft of the article had about 350 footnotes, and when I saw the number of footnotes proposed for addition in the initial edit, I laid down the law: NO MORE THAN 500 FOOTNOTES! It ended up with 487.
By the way, if you are interested in seeing Mr. Jacobs' article, it is An Analysis of Section 16 of the Securities Exchange Act of 1934, 32 N. Y. L. Sch. L. Rev. 206 (1987). It is 511 pages long.
June 05, 2006
I'm sure every author of a law review article has at least one good law review horror story. (I'm sure all law review editors do as well!) Anyway, I thought I had my nightmare story until two weeks ago. I received reprints of a recent article, and eagerly tore into them. However, my excitement vanished when I opened the reprint aon top nd looked at my "author footnote." The footnote was not mine. Instead of being a visiting professor at Illinois and assistant prof at Marquette, I was an assistant prof at a completely different school. I thanked people I do not even know. I listed an email address that is not mine, either. I had just received 150 reprints of an article written by someone named Christine Hurt who was not me at all.
Thankfully, the editors are being great about it and are working diligently to cure the problem, which was probably an error at the printer. As my articles editor was apologizing, I had to come clean with him. Yes, the error caused me some initial disappointment. But, on the up side, I now have a really funny law review story to tell, and this story takes less time and is more punchy than my "bad editing" story, which is really quite tedious. So, I think on the whole, the event has positive utility for me!
May 18, 2006
This morning I received an email from a former student asking about law review rankings. This evening, Ronen Perry sent me a link to his new paper, The Relative Value of American Law Reviews: Refinement and Implementation. Ronen has thought a lot about law review rankings (this paper is a followup to his other paper, The Relative Value of American Law Reviews: A Critical Appraisal of Ranking Methods). He describes the purpose of his law review rankings as the "advancement and improvement of legal writing through competition among law reviews." A noble endeavor.
His rankings rely on a combination of citation frequency and standardized citation rate (an attempt to measure impact by counting citations per article). Ronen makes this choice because he is interested in getting the incentives of law review editors right:
A continuous ranking according to citation frequency may encourage editors to publish more articles (or more extensive articles) of lesser value, and this in turn may reduce the average academic quality of each item. True, citation frequency is partly responsive to this possibility. Presumably, a legal periodical that publishes numerous articles of low quality will not be cited at all, whereas a legal periodical that publishes a few excellent articles will be cited quite often. So an uncontrolled increase of publication volume cannot be expected to result in a significant increase in citation frequency. Still, enlarging the publication volume increases a journal's likelihood of being cited as long as the additional text is not wholly inferior. Mediocre journals with high paginations may rank higher than excellent journals with low paginations. Editors will be led to publish more, and the average academic quality of law reviews might eventually drop.
A continuous ranking by standardized citation rates eliminates the incentive to publish more articles of lesser value, and thereby averts a decline in the average quality of legal periodicals. However, it might give editors an excessively strong incentive in the opposite direction. They may be encouraged to be more selective and publish less to ensure that their standardized citation rate is maximal. In the long run this might constrain and inhibit legal discourse.
He has a much more extensive discussion of the methodology in the paper, but I know that what you really want to see is the results. Here are the Top 25 general law reviews. See the paper if you want to see all 187, top to bottom.
One last point. Ronen examines the correlation between law review ranking and U.S. News and World Report ranking and finds a very high correlation: "The linear correlation coefficient between the school's ranking and its flagship law review's ranking is 0.8334." Not surprising, but again, the paper has a more extended discussion if you are interested.
May 09, 2006
The world is awash in law reviews (pdf), and specialty business law journals are substantial subset of that. In my humble opinion, most of these law reviews could be euthanized without substantial adverse effects on the law or legal education.
Having already started one law journal early in my career (see here and here), I have some appreciation for the costs, both financial and psychic, associated with such enterprises. Nevertheless, I have found myself wondering recently whether the world might obtain a net benefit from a peer-reviewed journal for corporate and securities law scholarship.
It's not like corporate and securities law scholars have no options beyond student-edited law reviews. The Journal of Law & Economics, the Journal of Law, Economics & Organization, The Business Lawyer, the Journal of Empirical Legal Studies, and other non-student edited journals publish corporate and securities law pieces. But none of these focuses on corporate and securities law, and the leading articles in the field still are published in general law reviews.
While I can see some advantages to connecting with the broader legal academic community, I can also see some advantages to having a peer-reviewed journal that all of us in the field regard as our "A" journal. Thoughts?
May 07, 2006
If you have a hot topic and a willing sparring partner, The Yale Law Journal might be interested in hearing from you. Click on the image below to read all of the details.
May 02, 2006
Courtesy of Brian Leiter, Bob Thompson has announced the results of the Top 10 Corporate & Securities Law Articles for 2005:
Bebchuk, Lucian Arye (Harvard). The case for increasing shareholder power. 118 Harv. L. Rev. 833-914 (2005).
Bratton, William W (Georgetown). The new dividend puzzle. 93 Geo. L.J. 845-895 (2005).
Elhauge, Einer (Harvard). Sacrificing corporate profits in the public interest. 80 N.Y.U. L. Rev. 733-869 (2005).
Johnson, Lyman P.Q (Washington & Lee). Corporate officers and the business judgment rule. 60 Bus. Law. 439-469 (2005).
Milhaupt, Curtis J (Columbia). In the shadow of Delaware? The rise of hostile takeovers in Japan. 105 Colum. L. Rev. 2171-2216 (2005).
Ribstein, Larry E (Illinois). Are partners fiduciaries? 2005 U. Ill. L. Rev. 209-251.
Roe, Mark J (Harvard). Delaware’s politics. 118 Harv. L. Rev. 2491-2543 (2005).
Romano, Roberta (Yale). The Sarbanes-Oxley Act and the making of quack corporate governance. 114 Yale L.J. 1521-1611 (2005).
Subramanian, Guhan (Harvard). Fixing freezeouts. 115 Yale L.J. 2-70 (2005).
Thompson, Robert B. and Randall S. Thomas (both Vanderbilt). The public and private faces of derivative lawsuits. 57 Vand. L. Rev. 1747-1793 (2004).
Weiss, Elliott J. (Arizona) and Lawrence J. White (NYU Business School). File early, then free ride: How Delaware law (mis)shapes shareholder class actions. 57 Vand. L. Rev. 1797-1881 (2004).
Congratulations! I have to admit that voted in my survey for many of these, and the ones that I did not vote for were the ones that I had not read. (I did not vote for my 2005 paper out of principle. Bob, if I missed the list by one vote, don't tell me.)
November 04, 2005
For all five of you following the fascinating dicsussion in the comments to this post, here's my list of the "top 30" general law reviews. The list represents some combination (I can't remember the precise weighting) of the W&L Citation Study, Leiter's ranking, and the US News ranking, with Indiana and W&L thrown in by fiat (bringing the total to 32):
- Harvard
- Yale
- Columbia
- Stanford
- Michigan
- NYU
- Chicago
- Georgetown
- California
- Virginia
- Penn
- Texas
- Cornell
- Northwestern
- UCLA
- Duke
- Vanderbilt
- Minnesota
- Notre Dame
- Fordham
- Southern Cal.
- North Carolina
- Wm & Mary
- Emory
- Iowa
- Wash U.
- Boston U.
- Illinois
- Wisconsin
- George Wash.
- Indiana
- Washington & Lee
I don't necessarily vouch for the ordinal numbers -- I think Chicago is manifestly a higher status law review than NYU or Columbia, for example -- but this seems like a good stab at the totality of the top 30, and a pretty decent ordinal list, as well. Doubtless one of the three of you still following this will disagree. For kicks, here's the unadulterated W&L Citation Study list:
- Harvard
- Yale
- Columbia
- Stanford
- Michigan
- Fordham
- NYU
- Georgetown
- California
- Virginia
- Texas
- Cornell
- Chicago
- UCLA
- Vanderbilt
- Penn
- Minnesota
- Northwestern
- Wm & Mary
- Notre Dame
- North Carolina
- Duke
- Southern Cal.
- Indiana
- Cardozo
- Ohio State
- Arizona
- Colorado
- Tulane
- Emory
- Connecticut
- Wisconsin
I think this list really botches it at the bottom end. And, as Gordon points out, its ordinal numbering is also screwier (Chicago is 13? On what planet?).
So -- have at it.
November 03, 2005
It's not that I can't come up with my own topics, it's just that David keeps anticipating me. So, once again, to pursue tangentially a point David raised --
I think at least a few of our (lawprofs') perceptions of what goes on in the law review black box may be under-informed. Here's an example: I often notice on resumes or other self-promoting materials that an author will point out that his or her article is the "lead article" in a law review issue, which is to say (I believe) that it comes first among the articles in the issue. I assume this is pointed out because it is believed that "first" is a place of honor, supposedly indicating a perception by the editors of the article's superiority. But is there any basis for this? Does anyone really know how editors choose to order an issue's articles and whether there is any consistency here? My most recent article is the "lead article" in its issue. It also happens that -- I'm sure only coincidentally -- the articles are placed in alphabetical order by author's last name.
And what basis, really, is there for supposing that "first" is best? That's one paradigm, sure. But a Straussian editor might think the real place of honor is smack in the middle. And a savvy behavioral theorist might place it at the end.
I realize that this matter is likely becoming moot as SSRN and Westlaw grow in importance. But other perceptions (like the one noted by David in his most recent post) of law review editor behavior are surely similarly under-informed.
Any law review editors out there want to comment on the "lead article" phenomenon or other misunderperceptions by lawprofs?
UPDATE: Arizona informs me that it ordered the articles in my issue alphabet-- . . . I mean, by quality.
Student-run law reviews generally don’t operate through
blind review. But should they take
recommendations from their faculty? How
much of an effect does the so-called “gray market” have on decisions by law
reviews on whether to accept articles?
Gray market, you ask? Say what? The gray market is
utilized by those scholars who pitch their papers to the faculty of schools
with desirable law reviews, in addition to just mailing in the pieces through the normal process. The goal is
to have faculty members recommend the papers to the articles editors who – just
possibly - happen to be in their classes.
Alternatively, there ought to be a real time study. If 20 law reviews can get together and, in
the space of a year shrink the length of articles by half (huzzah, by the way),
then 20 law reviews ought to be able to get together over the course of a
calendar year, and assign some articles editors to a control group – gray
market recommendations accepted – and a test group – gray market
recommendations not permitted. And lest
this post seem critical, it could be, of course, that recommended papers make
for a much better law review. I assume
that plenty of law professors would leap to consider the results of such a
study – quality of articles, say (tricky to measure that, of course), distribution
of graduate degree alma maters, or ordinal rank of the law schools from which
authors came – and publish their analyses on ratings-friendly SSRN.
October 19, 2005
The Yale Law Journal's launch of a bloglike "online companion" for the Journal, called The Pocket Part, has generated a well-deserved bit of blogobuzz. It quickly generated reportage posts by Stephen Bainbridge, Ben Barros, Heidi Bond, Orin Kerr, Dan Markel, and Larry Solum. Like others, I'm delighted to see this development. And, just at it did for Paul Horwitz, Pocket Part prompts me to think about how internet-based technologies that lower the costs of collaboration could spark new socially-produced scholarship or scholarship tools ... in short, how the scholarship's social layer may grow. Paul muses on the Wiki-Treatise. Matthew Bodie has a paper at SSRN about an open-source approach to the casebook. My own hope? Social tagging for scholarly papers. More below the fold ...
Existing social tagging technology and practice, on sites such as Flickr (for photos) and del.icio.us (for web bookmarks), show the power of letting users grow a social layer to comment on the content layer in a way that organizes the content.
Now that others (besides Westlaw and Lexis) present electronic versions of scholarly articles, I start to wonder: Can we bring social tagging to legal scholarship? I've been looking around for this phenomenon in other scholarly fields and have not yet seen it. But I'm going to keep searching.
Why? What's the point? Well, my own motivation is that I think keyword searching within the text of an article is far too crude a search tool, but it is all that Westlaw and Lexis offer. Social tagging strikes me as a much more nuanced and powerful search tool. And I know that I would add tags, sharing with my colleagues in the hope they would share with me, to make my research time far more productive as the social layer grows.
Perhaps Westlaw or Lexis will roll out a user-based social tagging system at some point. Perhaps repositories like SSRN and Berkeley Electronic Press will beat them to it. In the interim, I hope that individual law reviews themselves will think about doing so. Many of them already host electronic copies of the articles they publish. Wouldn't it be simple to, e.g., generate a tag cloud from the text of each article for a baseline tag set, then use social tagging tech to let users generate a second tag set thereafter? The law reviews that make their articles more usable with a rich social tag set will doubtless attract more readers, which may boost citations to those articles in other articles.
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September 30, 2005
As readers may recall, I sent out an article in early August. That article, on similarities between gambling speculation and financial speculation and illogical differences in the regulation of the two, is on ssrn here, as of today. The blogosphere has been alive with tales of authors sending out on ExpressO and hearing from law reviews in thirty minutes or less, like Domino's pizza delivery. My experience was more like Ethan Allen furniture delivery. Seven weeks after sending out (half on ExpressO, half hard copy, just for the experimental value), I received an offer from Boston University Law School, and I accepted it on the phone. (In case you were wondering, BU was in the hard copy pile.)
I told the editor on the phone that I was going to accept because I found expediting demoralizing, and when I had the opportunity to get a great placement without expediting, I would prefer to be part of the solution than part of the problem. I could tell that he thought I was a little wacky, and he may be in good company there. However, I think that less expediting could be good for the whole system. Apparently, submissions are out of control high. Whether because of ExpressO or higher tenure expectations or increased number of schools focusing on scholarship, I do not know, but the BU editor told me that the August submissions there were double those of last year. However, if authors decided not to expedite, then authors would send out to fewer law reviews, decreasing the number of submissions at law reviews. Because editors knew that they couldn't wait for expedite requests, they would need to jump on the stack to get to good papers before they were unavailable. Because submission piles would be smaller, editors would be able to do this.
Well, it's a thought, anyway.
September 14, 2005
Last week I frantically incorporated the first round of comments on my branding paper into a revised draft, which I uploaded to SSRN and then submitted in a rifleshot fashion, as if it were a limited edition work. (It's a paper about branding, after all.) And I am so happy that I did -- the Michigan Law Review accepted the piece yesterday.
I'm not sure it's wise to start a trend of blogging the star-footnote, but I can't resist saying a public thank you in particular to Josh Wright, Todd Zywicki, Peter Oh and Larry Ribstein, whose timely comments over the last two weeks helped me turn a lump of coal into, well, it's hardly a diamond, but it's at least cubic zirconia.
Blogging helped the process in more ways than one. More on this below the fold.
First of all, posting half-baked ideas on the blog made the first draft a bit easier to write. (Tho it is never easy, is it.) Second, feedback on those ideas helped me anticipate some objections. Third, other blogs became a primary source material as I considered how deal structure affects the public perception of Google and Apple in particular. Lastly -- and rather unexpectedly -- blogs have made me more aware of how opinions about consumer products form, and have even become a small part of my argument in the paper.
I pin a fair amount of weight on the notion that deal structure
affects the atmospherics of the brand. The Google IPO makes Google
seem more fun, innovative and egalitarian. Steve Jobs's salary of a
dollar makes Apple seem contrarian, more devoted to its users -- an
anti-Microsoft. But how do these messages get communicated? What
exactly is the process that forms the atmospherics of the brand? How
does buzz get created? Can deal structure really create buzz?
The business press is part of the story, but blogs might be too. Of all the consumers who use Google or Apple, who is most likely to know about deal structure? Nerds. (Or, as Malcolm Gladwell calls them in Tipping Point, Mavens.) And some of these Mavens/nerds/early adopters blog. Just for the sheer delight of it. Sometimes at two in the morning. And they read each others' blogs.
And when normal people try to decide which product to use, who do they ask? Nerds. Think about why you started using Google Search, or Google Maps, or why you bought a Mac. (Or, outside of the technology context, why you bought a Big Bertha driver or started shopping at Whole Foods.) Chances are good that it was word-of-mouth, not traditional advertising, that made the difference. If deal structure changes the opinions of Mavens, then it's much more likely to have a branding effect. It's not that the Mavens tell others about the deal structure, but rather that the Mavens themselves may think differently about the company. Unusual deal structures may allow companies to post a reputational bond with Mavens, or simply draw attention to the company.
The nice thing about focusing on the process of buzz creation is it helps me understand why deal structure would not be an effective branding mechanism in other circumstances, i.e. with companies that sell products where people don't rely on Mavens for advice.
In the end, this is really more of a story about specialized opinion-makers than it is about blogs. Blogs didn't have anything to do with Ben & Jerry's or Stanley Works or the other pre-blog-era deals. The expert opinions there were shaped by the likes of Calvin Trillin, writing in the New Yorker (Ben & Jerry's) and political activists (Stanley Works). But I'm not sure I would have found this promising piece of the puzzle without blogs.
August 19, 2005
Orin Kerr writes of a young lawyer who is sending mass emails to friends to download his new article so that his ssrn count will impress law review editors this month. (Orin gallantly redacts the author's name, but commenters, including Kate Litvak, call for shining a little sunlight on this gamer.)
First of all, I'm too backward to be a gamer. I'm still living by advice from Eugene Volokh that's 18 months old not to post on ssrn until I have an offer from a law review. Never did it occur to me to post first, send out later.
Second, I'm now also worried about the ssrn slippery slope. As the commenters point out, the most unethical thing to do would be to create a software program to download your article. The second most unethical thing to do seems to be to spam your friends and beg/offer prizes for downloading. What about posting your own link on your blog, mentioning nothing about submission season, but hoping, hoping, hoping? What about sending your link to all your blogger friends/blogger acquaintances/blogger heros, asking for a link (again, not mentioning ulterior motive)? Obviously, there's a gap between Orin's acquaintance who openly begs for downloads (not reads, just downloads) to game the system and the other mixed-motive strategies, but where do we draw the line?
While I was on leave from the blogosphere, many people were chatting it up about two topics: (1) length of law review articles and (2) SSRN downloads as proxy for scholarly quality. (I would cite to all posts on the subject, but that would make my post too long and bloaty to be useful. For starters, here is PrawfsBlawg on length, Leiter on SSRN and length, Profs Black and Caron's paper on SSRN, and Andrew Moriss at VC on SSRN). On the off-chance that these topics have not been milked dry, I wanted to add an observation of a convention that adds to both article length and the unnecessary citation of well-known scholarly articles. In legal scholarship, there is no such thing as "common knowledge."
Both as a student editor and as a writer receiving editorial comments from student editors, I have faced the concept that in the law, there is no common knowledge. In high school and college, I was told by educators that I did not have to cite to facts that were common knowledge. However, as a student editor I asked for cites for many facts that an outsider might think were common knowledge, and Ihave answered the call of editors for similar "find cite" requests. So, in writing a paper on securities law, a sentence that reads "In the U.S., the securities laws reflect a policy of information disclosure" will almost certainly require a cite unless followed by a more detailed but identical sentence with a cite. But, if my paper isn't really on the policy of information disclosure, then I have to think of where to find a cite for this. So, I pull out of my brain a well-known securities law author or paper, knowing that if I search Westlaw using these terms that I will pull up a well-cited paper that I can use for this one cite. The resulting citation and parenthetical will not merely provide back-up for this noncontroversial statement but will start a different story (Author, Title, Vol. L.Rev. Pg (Date) (criticizing the regime of information disclosure as being short-sighted and easy to manipulate). Some readers may enjoy the digression, but it does add unnecessary length to an article that is not about that issue. And, it results in many papers being cited over and over because of their encyclopedia-like accessibility.
So, I would propose as an additional tool for shrinking the average size of a law review article for authors and editors alike to recognize a body of common knowledge, at least within a legal field, and not require 50-100 words to prove up what is essentially a statement of verifiable fact.
July 31, 2005
Heidi Bond (Mich. L. Rev.) blogs about whether author's promises to accept an offer, if made, helps the author in the law review placement process. Apparently, in the case of a top review like Michigan, with an acceptance rate of 100%, the unstated conversation is something like this:
"If made an offer by your review for this piece, I will accept that offer immediately."
"Yes, we know you will. Thanks, we'll be in touch."
I would be interested to know if reviews outside of the Top whatever feel the same way. Last year, when I was angling for an expedite, a Top 30-ish review told me that they would only agree to expedite if I promised to accept an offer when given. I took the bet, and then never heard from them again. I felt like some 7th-grade boy asked me, "If I asked you to go with me, would you?" then just walked away.
Tip to Orin Kerr.
July 21, 2005
At UCLA junior faculty carries the title "Acting Professor of Law" rather than Associate or Assistant Professor (the traditional titles that signal tenure-track positions). Usually when friends notice the title they needle me a bit, asking, "So, you're not a professor but you play one on TV?" or "Acting Professor ... is that an LA thing?" or "So you have the same title as James Lipton?" (I did take some acting classes when I was living in New York, but that is a story for another day.)
The reason for the title, as I understand it, is that the State of California sets limits on the salaries that Associate and Assistant Professors can make. But law profs make more than, say, history profs. So to get around this, UCLA puts us on the Professor of Law salary scale, but us untenured folks have to tack on the title "Acting" in indicate the conditional nature of the appointment. Or something like that. So the juniors at UCLA, Boalt, Hastings, Davis are all saddled with this odd title.
Sometimes, tho, I wonder if the title is more than just an amusing annoyance. Last weekend someone who had recently served as an articles editor on a top-20 journal asked me, "What's up with the Acting Professor title? Does that mean tenure-track or not?" I wonder if law review editors out there know that Acting Professor is tenure-track, or do they confuse it with Acting Assistant Professor, which is typically NOT a tenure-track position? Do they care if authors are tenure-track or not? How does it affect the editors' review process?
My suspicion, of course, is that law review editors care a great deal about the status of the author; not just what school they are from, but also whether they are tenure-track or adjunct. We ask student editors to pass judgment on articles when they may know little about the subject matter or the background literature. It would be surprising if the editors didn't rely on status and publication history to reassure themselves that their judgment about an article is sound. I also suspect that most articles editors figure out the "Acting Professor" thing pretty quickly after they begin, and so my articles probably aren't tossed in the student/practitioner/adjunct pile very often.
Of course, in a better world, law reviews would be blind reviewing anyway.
July 20, 2005
I've been pondering my August law review submission cover letter today. (It keeps me from actually working on my paper. I worked on my title yesterday.) I think I may take a new angle. In the past, my cover letter has been pretty standard: this paper is amazing; it continues a vigorous dialogue on the topic, but simultaneously fills a huge void in the literature; this paper can only be written by me, a person with a long history in the topic. This time, as I see August creeping up on me, I'm pondering a new strategy. I call it the "Help Me, Obi-Wan Kenobi" strategy, as in "Help Me, [_____] Law Review, You Are My Only Hope."
The cover letter will go something like this. Oh, law review editor, thank goodness I've gotten your attention. I have this amazing idea -- very creative, very now, very happening. However, this idea is lost inside of a big pile of words and footnotes that say "NEED CITE." I have heard that your editors are the most brilliant, the most detail-oriented, and the most organized of any other law review. I have heard stories of your editors finding authority for even the most esoteric of assertions and reorganizing paragraphs and whole sections in a way that creates logic where there was none before. I therefore have a challenge for you. Please accept this paper, and let's take it to new heights together.
Sort of Princess Leia meets Nigerian royal expatriate.
July 19, 2005
Last year I lamented the passing of the Journal of Small and Emerging Business Law, which I had a hand in creating. This year, two new journals are springing up to take its place: The Journal of Business & Technology Law from the University of Maryland School of Law and the Entrepreneurial Business Law Journal (scroll down) at the Moritz College of Law, The Ohio State University. Both journals are launching with conferences, and I have been invited to participate in both. If I can work my schedule, I plan to be at both.
July 18, 2005
I have spent my morning reading Ferdon v. Wisconsin Patients Compensation Fund in anticipation of an NPR interview today. In this case, the Wisconsin Supreme Court held that the $350,000 cap on noneconomic damages in medical malpractice cases violated the Equal Protection clause of the Wisconsin State Constitution. I'll save my analysis for another post, but I wanted to highlight that law review articles are not mere cries in the wilderness. (See Tom Smith's post here, and guest-blogger Dave's response here.) In the majority opinion, Chief Justice Shirley Abrahamson cites no fewer than ten law review articles and seven student notes! In this case, many of these articles did hard empirical work or at least analysis of others' empirical work that informed the court.
Last spring I discussed the merits of ExpressO, the law review submission service from bepress (see here and here). Among other things, I wondered about the submission season, and I wrote: "Based on my own experience and lots of anecdotes, I have concluded that submission schedules are more flexible than I once thought...." My article was sent out on April 8, and I have now concluded that it was sent out too late. This is a brief story of my experience post-submission.
I sent the article to the top 30 law reviews, ranked according to my own instincts as informed by the usual sources. According to ExpressO, the average number of submissions on ExpressO is in the low 30s, so my distribution was only slightly smaller than normal. A handful of those 30 are "elite" law reviews, where placements are exceedingly competitive. Another 10 or so are very fine law reviews in which I would be thrilled to publish. The remainder (half or a bit less than half) are journals in which I would be willing to publish, unless I felt strongly that the particular article deserved a "Top 15" placement.
The majority of the law reviews in my spring distribution never responded or responded with only an acknowledgement. A couple of law reviews contacted me to say they were already full. (For the year or just for the spring? They didn't say.) And, of course, I had my share of straight rejections. Since my record keeping on this submission was a bit sloppy, I am not sure how many rejections. Maybe eight, including several of the elite law reviews.
For the most part, the summer has been quiet. I assumed that editors would pick it up again in the fall, if ever, so I was pleasantly surprised to receive an offer from the UCLA Law Review last Thursday. Vic tells me that it's a good law review, so I accepted immediately without shopping it to higher-ranked journals. This was motivated partly by the desire to have done with it, and partly by the fact that I am very happy with the placement. For what it's worth, UCLA would rank among those "very fine law reviews in which I would be thrilled to publish." And I am.
All things considered, this is a success story, though I think that April 8 is too late in the spring if you want to give your article its best chance for a top placement. Editors at most law reviews understandably suffer from attention deficits as finals and summer clerkships descend upon them. Of course, being too early can pose problems, too, namely, that when the boards of editors are first elected, they tend to be overly cautious, rejecting articles that they probably shouldn't. Given that boards are elected on different dates, it's difficult to time spring submissions just right, but if the month is not March, your timing is probably a bit off.
Is there a right time to submit in the fall? The conventional wisdom is August, but later submissions sometimes do well. I have heard this scenario more than once: the article is submitted in September or October, after most other articles are in, but law reviews with open spots eagerly make an offer to fill them.
July 13, 2005
Tom Smith (of The Web of Law fame) has an interesting new post disclosing preliminary results of an empirical look at law review citation in the Lexis database. Headlines:
First of all, 43 percent of the articles are not cited . . . at all. Zero, nada, zilch. Almost 80 percent (i.e. 79 percent) of law review articles get ten or fewer citations. So where are all the citations going? Well, let's look at articles that get more than 100 citations. These are the elite. They make up less than 1 percent of all articles, .898 percent to be precise. They get, is anybody listening out there? 96 percent of all citations to law review articles. That's all. Only 96 percent. Talk about concentration of wealth.
Interesting, but possibly misleading. My sense is that the Lexis law review database is significantly smaller that the WL database, just as its caselaw database is smaller than the WL equivalent (as I'm discovering in a paper I'm currently writing). So, I guess I'd be a little surprised if this result would completely hold up if I burdened a research assistant with the painful task of checking I checked citations on paper copies of the law reviews.
But, as a project, it would be interesting if Tom wanted to use this data to create a more sophisticated ranking of journals than those that are already around. In particular, I think it would be useful to rank journals on the following factors, which are hard to get in the existing literature: (1) average citation per article, controlling for author average citation; (2) changes over time; and (3) how long "a tail" of time can you expect to be cited?. Obviously, I'd look for surprises from this research that might break the deathhold of the US News rankings on law review selection.
Putting aside prestige games, it has to be true that very few articles get cited more than 100 times. And even those "elite" aren't necessarily changing real people's lives. (For a less-cited article that actually did, go here and read Susan Hamill's article on the judeo christian foundation of tax reform in Alabama, which inspired a (failed) political movement.) Which is why the impetus to write has to be more internal than external for me.
Tom worries that people might think that scholarship is irrelevant because it doesn't get cited much. It strikes me that citation insecurity is exactly what SSRN was created to remedy. The lesson then, for me, is that you should go here now and download something.
(Hat Tip: Prawfsblawg.)
July 12, 2005
Christine's post on What's in a Name? reminds me of "Lawsuit Shmawsuit," where Kozinski & Volokh discuss the use of Yiddish in legal opinoins. My favorite passage:
There is, of course, one obvious question that must be on every reader’s mind at this juncture: what about "schmuck"? Regrettably, we were stymied in our schmuck search by the fact that many people are actually named Schmuck. This is an unfortunate circumstance for researchers, and even worse for the poor Schmucks themselves.
The same happens to be true of "putz" and of "mensch." We’d much rather be named "mensch" than "schmuck," but, oddly enough, a search for NAME (SCHMUCK) found 87 cases and NAME (MENSCH) found only 63 cases. Perhaps this is because there are more schmucks than mensches in the world; but wouldn’t the real schmucks change their names so as to better fool people, and real mensches change theirs out of modesty? Besides, the true schmuck-mensch ratio is much higher than 87 to 63.
I am neither a Schmuck nor a Mensch; Fleischer is German for "butcher." So next time you suffer through a terrible workshop, you can think to yourself, "Boy, he sure Fleischered that presentation."
A semi-serious question -- has anyone else noticed how well these "joke" papers seem to do, placement-wise? Lawsuit Shmawsuit was in the Yale Law Journal. The recent paper on the significance of the asterisk footnote is in the Georgetown Law Journal. The Bulls and Bears of Law Teaching landed at Washington and Lee. Not bad.
Speaking of Kozinski, I wish his name was on the short list. I clerked for AK in '97-'98, and while I didn't always agree with him, he deserves it more than any other conservative judge except Posner. Of course, no one said merit had anything to do with it.
(And, for the record, Tournament of Judges, which originated as a joke paper before turning serious, placed in the California Law Review.)
June 06, 2005
Now that I realize the emerging importance of SSRN, I am in the process of obtaining permissions to my old articles to post them there. This morning, I posted my first academic article, Network Effects and Legal Citation: How Antitrust Theory Predicts Who Will Build a Better Bluebook Mousetrap in the Age of Electronic Mice, 87 Iowa L. Rev. 1257. As Freakonomics applies economics to sumo wrestling and crack dealers, I applied networks effect theory to the Bluebook.
May 19, 2005
Larry Solum has posted the Top 20 schools by total SSRN downloads. Obviously, this list has been blogged about before and will probably be in flux as more schools and more authors adopt the SSRN culture.
Interestingly, the list falls off fairly quickly from the top schools with 20,000 or 30,000 downloads to schools with 3,000, 2,000 or 1,000. With 952 downloads, Marquette is ranked at 82, which is actually a little higher than our USNRW ranking. We achieved this ranking with only 5 papers in the last 12 months, and only 9 papers uploaded ever. As you might expect, only three professors have papers there. I in fact only have one, something that I am working with law reviews to remedy. Needless to say, the schools above us have many more papers. Therefore, moving up in the lower ranks of the Top 100 may be a fairly simple matter of getting information out to your colleagues to post their working papers and previously published papers on SSRN.
May 17, 2005
My colleague Eric sent me this article to make me feel better about not having published in the Harvard Law Review (yet). This article, written by three graduating HLS seniors, includes gender and race information on both the staffs of the HLR and the authors. In volumes 116, 117, and 118, out of 93 authors, only 16 of those authors were women (17.2%). (As a point of reference, the 2003 AALS statistics show that women make up 25.2% of full law professors, 46.1% of associate professors and 50.1% of assistant professors.)
Worse for me, most of the pieces authored by women were solicited. Of the pieces published that were received through the submission process, only two of the published pieces were written by women. (However, the piece does not say overall how many pieces are published that are received through the submission process. If only two unsolicited pieces a year are published, and one is by a woman, that's a different story than 5 to 1.)
The article makes a starker point about race though; out of the 93 pieces published, only six were authored by someone who is not white.
The article lists one author as "an international author." I guess in other countries, they neither have gender nor race?
One last note. According to the HLR website, the HLR has an anonymous selection process. I would like to hear from someone who knows that to be the case in pratice. How do expedite requests affect the anonymity? Obviously, if the selection process is truly anonymous, these numbers would be interesting and lead to more questions.
April 21, 2005
Several around the blogosphere have pointed out that selected law review articles are for sale for $5.95 on Amazon. I decided to check it out. I first searched my name, but I found nothing. Once my ego recovered, I checked out my dean's name and quickly came up with some articles that could be downloaded immediately for that price. I then tried to search my law review name. I'm not sure how perfect the Amazon search engine was, but I seemed to retrieve scattered articles from some law reviews and no articles from others. So, I would guess that some reviews are branching out to Amazon, but not all. And those that are branching out are doing it selectively and not wholesale.
This started me thinking. I get a lot of reprints. Of course, I read them all, but then they tend to stack up. How much could I get for them used? I also have a lot of reprints left over from my first article. I could sell those "new" in "mint condition." My dean pays for my reprints. My next article, I'll just order 1000 reprints and sell 750 of them on Ebay. I think I have the outlines of a retirement plan forming.
UPDATE: My colleague Eric thinks that a distributor, such as Hein Online, may be transacting with Amazon, not the law reviews.
UPDATE: Or Christensen.
April 12, 2005
Eric Goldman brings up an issue that has also been nagging me: If we are now to be ranked according to our SSRN downloads, how will that change our behavior? For all the fury with which law professors rail against the defective USNWR rankings, we must, however, love the concept of rankings. When SSRN sent out an email a few weeks ago ranking the Top 100 SSRN authors and schools by downloads, every blog I read (and write) had a link to it. To repeat: How will this new download analysis change our behavior?
Eric thinks that authors may refrain from advertising SSRN posts for fear of backlash. I really doubt that will happen. I suspect the opposite. I also suspect that we will engage in subtler strategies. At my conference last Friday at the University of Toledo, the EIC of the law review came in to tell the presenters that the law review would be happy to upload drafts of our papers on the website before the symposium issue is published. One professor asked that his paper not be uploaded to the website but that instead that the SSRN link for the paper be posted. (I have no idea what his motivations were.) Brilliant!
Who wants to get uncounted downloads from a naked link? Now, I want counted downloads from SSRN. Count me in, too! Sadly, this shifts the goal of just wanting people to hear your ideas to wanting people to download your article from a platform with a ticker.
I have two boxes of reprints in my office. Should I sent them out or should I send out professional stationery with the SSRN link?
April 11, 2005
Jean-Gabriel Bankier of the Berkeley Electronic Press saw my post about Expresso from last week, and he emailed with an invitation to call. So I took him up on it. Rather than bury this in an update to that post, I thought it deserved separate attention. After hearing about Expresso, using it, and speaking with Jean-Gabriel, I think we are seeing some important changes in the way legal scholarhip is produced, and I like what I am seeing. Now, a few interesting topics ...
The Submission Season: Is there a submission season? When I
first started writing for law reviews, I was told about the submission
windows in Feburary/March and August/September. These corresponded to
changes in editorial boards (spring) and the return of students from
summer clerkships (fall). Based on my own experience and lots of
anecdotes, I have concluded that submission schedules are more flexible than I once thought, and Jean-Gabriel is planning to work with the law reviews to find out.
This is an example of one of the most important features of Expresso.
Finally, someone has the right incentives to gather systematic
information about the world of law scholarship publishing. Before
Expresso, individual authors would occasionally take the initiative to
produce public information goods, but more often than not, we simply
slogged along in ignorance.
Top Law Reviews: Under the current system, top law reviews have a strange bundle of incentives. As Heidi Bond has observed, the costs associated with printing electronic submissions are borne by the reviews themselves, while the costs of paper submissions are borne by the author (or the author's institution). This alone may be enough for some law reviews to avoid electronic submissions.
Jean-Gabriel offered another possible explanation for the reluctance of top law reviews to jump on board with electronic submissions: the costs associated with print submissions may prevent some longshot authors from throwing a submission at a top review when the chances of acceptance are close to zero. In other words, top law reviews may be using the print requirement as a method of moderating submissions.
Two important reponses to that. First, it isn't clear (to me or to Jean-Gabriel, at least) how much the possibility of electronic submission increases the number of submissions. He is guessing 10%-15%, so the savings by the law reviews may be modest. Second, competitive pressures may force the hand of some of print-requiring reviews. For example, if Virginia accepts electronic submissions, but Duke doesn't, Virginia will see articles several days before Duke. And if Virginia made me an offer tomorrow, I would accept on the spot ... before Duke even received my print copy. If that happens enough, Duke will get the message and start allowing electronic submissions.
ExpressO's Rankings. In my original post, I wondered how ExpressO came by it's Top 50 rankings. The answer: U.S. News and World Report. And no, Jean-Gabriel isn't going to put the Top 52 law schools on if there are ties. Sorry, SMU, Pitt, and Tennessee. (But see below for why these law reviews shouldn't feel too badly.)
And how does Jean-Gabriel explain Cornell getting more submissions than any other school? And Wisconsin in second? We both came up with the same speculation there: authors are shooting for schools where acceptance is a good possibility, and some people realize that Harvard and Yale are longshots for their current article, so they aim a little lower. The schools on ExpressO's list are the schools that authors choose because they are most likely to get a good placement.
Author Preferences. I was surprised to learn that the average number of submissions on ExpressO is in the low 30s. I suggested that perhaps authors were submitting only electronically on ExpressO and doing the print submissions at home, but Jean-Gabriel said that did not seem to be the pattern. He said that most authors have very definite preferences for schools. As a result, appearing in the Top 50 would not likely make much of a difference to a law review.
Rejection. Jean-Gabriel said that ExpressO closes down submissions to a particular law review when the law review says that it is temporarily full. ExpressO sometimes hears about this fact from authors, who demand a $2.00 refund because Such-and-Such Law Review rejected their article on this ground. If you have ever received such a letter, it feels a bit like being turned down for a date on the ground that she is busy every evening for the next six months. If a law review is not forthcoming, however, it may stop receiving submissions from ExpressO. That's a nice market check on the law reviews, forcing them to reject with honor.
Ok, I think that is a pretty decent summary of the points. Of course, Jean-Gabriel, you are welcome to add or clarify in the comments!
April 10, 2005
I had my first encounter with ExpressO on Friday. After pulling an all-nighter on Thursday night, I decided to send out my article -- The Exit Structure of Venture Capital -- on Friday afternoon. This article has been a work in progress for a long time, and I need to let go of it. I have never submitted an article in April, but my colleagues are still getting offers, so I hope this is not too late in the semester.
My first impressions of ExpressO are very favorable. The interface is very user friendly, and the pricing seems fair. Paper submissions are $6.50 (that includes printing and mailing U.S. Priority Mail) and electronic submissions are $2.00.
I encountered a couple of surprises. For example, only 11 of the 30 law reviews on my list accept electronic submissions. When I read my account today and it said that my paper had been "Delivered to 30 Law Reviews," but that was manifestly untrue, as all of the submissions to paper-based journals are still being processed.
Also, I wonder how schools get on the page for "Top Law School Law Reviews 1-50"? In Expresso, the number is exactly 50, but the U.S. News Rankings do not cut off so neatly. (It stinks to be Tennessee or FLorida State in this world because they are right on the cusp of being listed, and I would think that makes a big difference in submission totals.)
Finally, ExpressO ranks the law reviews "according to the number of manuscripts received in 2004 via ExpressO":
01. Cornell Law Review
02. Wisconsin Law Review
03. Fordham Law Review
04. Boston University Law Review
05. Virginia Law Review
06. George Washington Law Review
07. Georgetown Law Journal
08. Boston College Law Review
09. Hastings Law Journal
10. Yale Law Journal
Only two paper-based law reviews appear on the list: Georgetown and Yale. So as expected, ranking here is partly explained by willingness to receive electronic copies. But why do some journals that accept electronic submissions seem more popular than others? Why isn't UCLA on the list? Or Iowa?
Also, what do the top-ranked journals have against electronic submission? Only two law reviews at arguably top-ten schools accept electronic submissions: Cornell and Virginia. What's with that?
April 06, 2005
My Times & Seasons co-blogger (and rising lawprof) Kaimi Wenger has provided the following chart from a law school seminar paper on expedited review. The chart shows offer times from Top 25 law reviews, some of which (for lack of a response from the journals) are inferred from Kaimi's experience as the recipient of expedite requests as an Articles Editor of the Columbia Law Review. In the paper, Kaimi notes the "rough correlation ... between expedite time and school prestige."
Click on the image for a larger version. The numbers on the y-axis are days.
UPDATE: You may have noticed that some schools are missing from the chart. Kaimi notes in his paper that Stanford and Penn claimed to have no set policy; Harvard and Chicago both said they didn't give deadlines; GW was establishing new rules at the time he wrote the paper; and Texas, Washington, and Minnesota didn't respond to his request for information and Kaimi didn't find any expedite information on those journals in the Columbia Law Review's records.
April 05, 2005
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.
March 30, 2005
This month, junior faculty here at Marquette have been asking each other whether sending a c.v. with submissions to law reviews is a good idea. Orin Kerr at VC is asking readers, specifically law review editors, the same question. Prof. Kerr quotes the ExpressO submission guidelines as saying that a c.v. is very important, especially the author's prior publications history.
I'll be the contrarian here -- why? I'm not applying for a job. I'm not shopping an idea for an book review, response piece or monograph. I am asking you to evaluate a completed paper for publication. You have everything you need right there. Maybe I'm naive, but if I'm handing you a completed paper, couldn't you just read the paper to see if I am capable of writing a good paper? You could use my job, my academic credentials, and my prior publication history as a proxy, or you could just read my paper.
I'm hoping that law review editors will respond to Prof. Kerr that they really don't look at it that much.
I have sent papers out three times. Each time I sent an accompanying c.v. Ironically, the best placement I received was for my first paper, when my c.v. didn't have much of a prior publication history.
To analogize, judges don't ask attorneys to turn in a c.v. with a complaint or an appellate brief, listing whether they had one cases or appeals before. Judges may notice the attorney's name or law firm's name, but I don't think judges rule on motions based on the winning record of the signing attorney. (I may be naive. If I'm wrong, please don't tell me.)
March 29, 2005
On a whim I checked to see if an article that went to the publisher in January was on Westlaw yet. It is! I haven't received my reprints yet, but Moral Hazard and the Initial Public Offering is available at 26 CDZLR 711! (That's 26 Cardozo L. Rev. 711 (2005)).
I'm sure that once I have 20 or 30 articles on Westlaw/Lexis, the thrill will fade, but for now looking at #4 on the blue screen is still exciting to me!
March 16, 2005
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.
February 24, 2005
I sent out my article yesterday on Expresso. It's a relief to have it off my desk. As I think about the cuts I made in response to the page limits, undoubtedly some of the edits improved the piece. It's certainly less intimidating to a general audience now. It's not excessively footnoted, and I try to keep the reader oriented without those annoying, cumbersome roadmaps. (As one of my colleagues put it, I try to keep the architecture to argument ratio down.) But I still think that the page limits disadvantage those of us who write about tax, business, or law and economics. Here's why.
A con law professor writing about the first amendment doesn't have to spend 15 pages at the beginning of the article explaining that we have this document called a Constitution, and this Constitution enumerates certain rights, and this is what a right is, and one of these enumerated rights is the right to free speech, and here it is in the first amendment, and this is what an amendment to the Constitution is ...
Whereas I really do have to spend 15 pages explaining what a venture capital fund is, what a buyout fund is, what a carried interest is, what an option is, what the allocation and distribution provisions of a partnership agreement do, what a clawback provision is, and so forth. Otherwise the claim that I am making -- that venture capital fund agreements are inefficient -- won't make any sense at all.
Part of the problem is methodology. I'm not writing a doctrinal piece, and I'm not writing a pure theory piece. I'm using some basic institutional law and economics. This demands a fairly rich description of the institutional factors that affect incentives. And I'm throwing in tax, so I need a fairly detailed explanation of how the tax rules work.
Now, taking as a given that 15 pages or so is background, that still leaves me 35 pages to make my claim. It's less than the 50 pages my con law colleagues get, but hey, who said life was fair. And I think I was able to do that in this Article. (And my last "big" article too, which only ran about 50 pages in the Tax L Rev.) But if I wanted to back up my claims with some empirical work like I did in my prior drafts, there's just no way it would fit.
So what we may see is a (further) division according to methodology. The general law reviews will remain the leading places to publish doctrine pieces. Empirical, business, tax, and economics work will gravitate even more to specialty journals, esp. faculty edited journals. I think we will also continue to see more important work in quasi-peer reviewed journals like the Journal of Corporation Law and the Virginia Tax Review, where students edit the articles but faculty has a say in choosing what goes in.
And maybe that's okay. My tenure committee isn't likely to look down on the Virginia Tax Review, and my target audience gets the article off SSRN anyway. This may be an area where specialization simply makes sense.
Maybe I'm wrong. I sent out the article yesterday on Expresso, and 24 hours later I have three offers, and one is from a general student edited review. And when the Harvard Law Review calls, you can be sure I won't be complaining about their page limits policy.
February 15, 2005
Eugene Volokh's alter ego, Law Review Lara ,is fielding questions about the costs and benefits of holding editorial positions on law reviews. The thrust of the question is whether an editorial position helps you get a better job, clerkship, etc. For me, the question is also answered by an article in today's Chronicle of Higher Ed. on hiring by attitude.
I have been in three different hiring scenarios: hiring for my law firm; hiring legal writing instructors when I was director of the program; and hiring tenure-track professors as a faculty member. For both associates and law teachers, the best hires are people who do the job, no matter how long it takes or how much they are being paid. People who are concerned with the cost/benefits of pay/hour will not do that well in either a big firm or in an academic setting. The best hires are those who do it because they like to do it and because they experience satisfaction in a job well done. If you are cynical, you will say that the best hires are Type A hires that climb whatever ladder that you put in front of them. The worst are the ones sitting around wondering what their opportunity cost is for prepping an innovative class or writing a law review article.
When I was interviewing law students for associate jobs, I would usually ask them if they were thinking of running for editorial positions. The worst answer in that situation is, "I don't know. That would be a lot of work, and I could make more money working for a law firm. I would also have to work harder on my note." That told me a lot about the attitude of the candidate.
Perhaps students who choose not to engage in time-consuming intellectual activities with little or no external reward are smarter than most. But if I were hiring first-year associates, I would probably think twice about hiring them.
Maybe I was little grumpy yesterday when I was complaining about law review page limits. Last night I did find myself cutting out some text that didn't need to be there, and if page limits impose some extra discipline, so much the better for me (and my readers).
One thing I've been cutting is the unnecessary "roadmapping" -- e.g. "In this Part, I discuss ... Part A explains ... Part B argues ..." I've always felt that roadmaps are cumbersome and unnecessary. If your reader doesn't know where you're going from your introduction and the flow of the piece, an artificial roadmap isn't going to help much. Of course, the only reason I had those in there is that law review editors often insist on it. It will be interesting to see if they will continue in this practice.
February 14, 2005
I'm very happy to be guest-blogging here, as I've been reading Conglomerate (and Ventrepreneur) since the beginning. I'm also pleased to be joining my co-clerk, Brett, who helped me survive a rather rigorous clerkship. I'll kick off today with a word about law review page limits: For better or worse, the decision of the top law reviews to provide suggested word limits will affect the substance, and not just the style, of law review articles.
Over the last few days I've been editing my work in progress, an article about compensation of VCs. It's a complicated story, and as I go back and add in footnotes (for the benefit of student editors, of course) the word count keeps creeping up over 30,000. Something here has to give. In order to get your article accepted by student editors, you have to provide an extensive background section: students don't know what a venture capital fund is until you tell them. And you have to provide footnotes for facts that are common knowledge in the industry, like the fact that venture capital funds are smaller than buyout funds. All of this takes up space and makes for longer articles. And so to stay under the word limit I may have to sacrifice some models that I use at the end of the article to try to illustrate my key points at the end. The models are of interest to my real target audience -- professors who teach corporate and tax law -- but won't interest the student editors much.
One solution I may try is to post a longer version on SSRN and circulate a shorter one to the law reviews. My impression is that hardly any of my corporate and tax colleagues reads articles in law reviews anymore -- everyone has already read the draft on SSRN if they're going to read it at all.
Or I may just send the article to peer-reviewed journals and skip the student-edited reviews altogether. My first major Article was in the Tax Law Review, and if I can get it accepted there, it's looking like the more attractive route once again.
Orin Kerr at VC is pulling back the law review curtain by asking law review editors to comment as to whether electronic submissions or paper submissions are preferable this February/March season. I know from personal experience that assistant professors waste a lot of time pondering this question among ourselves, without ever arriving at a satisfactory answer. So, I for one will stay tuned.
February 13, 2005
From an email received from Cornell Law Review:
You will also see [on our website] Cornell Law Review's statement expressing our preference for pieces that we believe can be published at under 30,000 words (including text and footnotes). We believe, like many of you, many of your colleagues, and many of our colleagues, that this effort will sharpen the quality of legal scholarship and the efficiency of the publishing process.
As Gordon noted the irony of law students dictating the form, and possibly substance, of law review writing by law professors, I remembered the comment of Justice Oliver Wendell Holmes that law reviews were "the work of boys." As the co-founder of a women's law journal, I would at the very least have throw some gender equity into that phrase!
February 11, 2005
Christine has been keeping us up to date on recent developments in law review publishing, most importantly the decision of the Harvard Law Review editors and the editors of several other top law reviews to establish page limits on articles. One aspect of this development that Christine has not mentioned and that deserves some consideration: these are students telling professors what will be published in their primary academic journals!
That last sentence -- especially the exclamation mark -- should convey a sense of outrage, but I am not outraged at the current students who edit law reviews. Nor am I outraged that the editors of the Harvard Law Review or the editors of any other law review have decided to impose page limits. I was one of those students not all that long ago (ok, 15 years ago, but it doesn't seem that long to me), and I participated in the survey that led to this policy. Moreover, I was one of the 90% of respondents who felt that law review articles are too long. So I am sympathetic to these students and supportive of their efforts.
So where is my outrage directed? At our scholarly community for the perverse structure of academic publications about law, in which students call the shots and professors kowtow to them. Do you have any doubt that law professors kowtow to student editors? How do you think law review articles got so long in the first place? There are two obvious sources of length:
(1) Every law review article is expected to contain within it a literature review, which usually comprises Part I and takes anywhere from five to 20 pages. Or more. In other disciplines, literature reviews are occasional, freestanding pieces written by established scholars. They are an opportuntity to take stock of developments and to suggest trends and directions. In some ways, we legal scholars have the advantage of being forced to constantly survey our fields, but writing these literature reviews is time-consuming and redundant. Why do we do this? Because we know -- usually from personal experience -- that the editors who read our work will have no idea where it fits into a larger framework. With rare exceptions, student editors are unable to assess the significance of the work within the field unless we provide some guidance.
(2) Law review articles are painstakingly footnoted. Articles with 500 or more footnotes are common, and articles with fewer than 100 footnotes are rare. Those of us whose names are not immediately recognizable to law students at top journals (i.e., almost every law professor except those at the editors' own school plus 10 or 15 others) feel the need to prove ourselves, and one way to demonstrate the care with which we have assembled our argument is to footnote expansively.
The irony of the new Harvard Law Review policy, therefore, is that we were writing long articles for the students!
Over the past few months, I have had many conversations with other legal academics about our system of publishing, and for the first time in my career, I sense a desire for fundamental change. I attribute this shift to the development of electronic publications, such as the Social Science Research Network, which has been wildly successful in disseminating working papers in law and other social sciences. More recently, it has become a useful source for accessing full-text articles published in various journals. The Berkeley Electronic Press, which sees itself as a competitor to SSRN, has begun to publish very high quality work in its own electronic journals.
In my view, electronic journals provide an opportunity for law professors to claim our own scholarly domain. We need to look increasingly to peer review in legal scholarship, and electronic journals lower the barriers to entry. As we start our own peer-reviewed journals, we should maintain two advantages of the current system. First, our new journals need to be fast. Law review publications typically move at a very high speed compared with peer-reviewed publications in other disciplines, and law professors have come to expect that. One of the major sources of speed is the availability of multiple submissions. Placement of law review articles happens very quickly, and that is a good thing.
Second, we need to have a high volume of publications. We will develop our own "A" journals -- perhaps by specialty, such as a peer-reviewed "Corporate Law Journal" or "Constitutional Law Journal" -- but many journals must continue to publish because we find value in the diversity of views. We take seriously the marketplace of ideas, and Westlaw and Lexis allow us to find the best ideas, despite the high volume of legal publications.
The result of this change will be that many student-edited law reviews will close their doors. I expect that students will fill their time in more useful pursuits, perhaps publishing their own thoughts on law, as at Law & Entrepreneurship News.
February 10, 2005
Orin Kerr is reporting that he received an email from Harvard Law Review that the review has adopted new, shorter submission standards. (Note that the only email I've ever received from HLR is in the "Thank you for your submission. We receive one zillion articles a semester" category.) According to the email, the review will give preference to articles under 25,000 words and will only publish articles over 35,000 words in extraordinary circumstances. The posting also notes that UVa has stated it will give preference to articles under 20,000 words and a negative preference to articles over 30,000 words. Maybe the trend is like the trend in cell phones. They just keep getting smaller and smaller.
UPDATE: The Harvard letter is here.
Related earlier post is here.
February 08, 2005
Brian Leiter links to a post at ACSBlog today that strikes both fear and excitement into the heart of us mid-stream tenure-trackians. Eleven of the top law reviews (the usual "top," including my alma mater, Texas) have signed a surreal arms agreement to the effect that each school is "rethinking and modifying its policies" to reflect the fact that "[t}he vast majority of law review articles can effectively convey their arguments within the range of 40-70 law review pages."
As Brian points out, Chicago and Berkeley are not signatories to this treaty. I guess someone's note at those reviews is running a little long these days.
January 11, 2005
I have written before about the benefits of law review. The current issue of the University of Chicago Law Review (Fall 2004) contains a student comment that attempts to quantify those benefits using data from a survey of Chicago grads.
In The Value of Law Review Membership, Dexter Samida finds the following:
Law Review membership ... did not correlate with higher salaries after controlling for grades. Nor did obtaining a position on the Law Review editorial board have a positive effect on future salary--if anything the data suggested Law Review board members had lower salaries. There was some evidence, however, that Law Review members employed by law firms enjoyed faster salary growth than nonmembers....
As compared to their classmates, Law Review members were more likely to complete a federal appellate or federal district court clerkship. Law Review board members were particularly likely to complete a federal appellate clerkship, although they were not more likely to complete a federal district court clerkship than nonboard Law Review members....
Law Review membership was not correlated with greater levels of job satisfaction. However, those in teaching, a profession in which Law Review members are disproportionately represented, did report higher levels of job satisfaction.
Nothing too surprising. We already knew that law review was a common credential for law professors, and perhaps our disproportionate representation in the academy accounts for our lower salaries. Samida also reports that the average salary of Chicago grads 15 years after graduation is $300,000 at law firms, $200,000 in business, $115,000 in government, and $117,000 in teaching.
December 19, 2004
The Columnist Manifesto has a great story about a law review editing experience. Here is the teaser: "This law student editor had gotten inside my head. And I have to admit, it was kind of sexy."
July 10, 2004
Earlier today I noticed this announcement on the website of my first academic employer, Lewis & Clark Law School: "The Journal of Small and Emerging Business Law, established in 1996, now has a broader mission. Effective as of Spring 2004, the journal is now known as the Lewis & Clark Law Review. It publishes scholarship from all areas of law." I am sad.
The idea for JSEBL (which we pronounced "Jezebel") was hatched over lunch by me and Jack Bogdanski, who recently announced that he is taking a break from blogging (which in turn prompted The Oregonian to do a tribute story ... wow!). At the time, Lewis & Clark needed to broaden its public persona. Widely viewed as an "environmental law school," Lewis & Clark also had a large collection of business law professors, and we had started to build a program.
It began before I ever taught a class there. When I was interviewed, I was told that the school had big plans for business law. The business law professors had already begun meeting to discuss curriculum, and many of the students were agitating for something that would compete with environmental law, offering scholarly, clinical, and moot court opportunities.
Just before the commencement of my first semester, the faculty held a retreat at Sunriver Resort. Great golf and great fun, but also a lot of great ideas. It was a tremendous way for a new professor to get introduced to the faculty.
Among the ideas floating around was an annual, non-environmental law conference. It didn't have much shape other than that, but Jack agreed to organize the inaugural event on tax law. He brought in an excellent group of professors on a Friday, then spent Saturday with them in the Columbia River Gorge and on Mt. Hood. As it turned out, this Saturday excursion was the real stroke of genius because it continued to entice one great participant after another to make the trek to Portland in October. (I wonder if they still do that?) Not only that, but it was a fantastic way to get to know people. Some of the fondest memories of my time in Portland are of those excursions.
We also discussed at the retreat the possibility of starting another law journal. At the time, Environmental Law was the only student-edited journal at the school, though Animal Law would follow shortly thereafter. We did not have a general law review, and a number of us felt that the world did not need another general law review. Sadly, that is exactly was JSEBL has now become.
Obviously, I was not a party to these most recent discussions, but I suspect that the driving force behind the change was a paucity of product. The world may not need another general law review, but most law professors are not keen to publish in specialty journals, either. We managed to provide one issue a year by tying the journal to the annual conference, which came to be called the "Business Law Forum." I was in charge of the Business Law Forum that appeared in volume 2. Take a look, and I think you will agree that it was a great conference.
We had grand hopes for JSEBL, and to some extent those hopes were realized. I still believe that there is a place for a scholarly journal on law and entrepreneurship (a name we considered, but rejected for various reasons). Maybe this will be the one that succeeds.
One final side note. When I was teaching at Lewis & Clark, we were constantly fighting our name. The official name of the school at that time was Northwestern School of Law of Lewis & Clark College. Now, I search in vain for a reference to the old name on the website. "Lewis & Clark Law School" -- the name most of us used informally -- has now become official. It's a good change.
May 05, 2004
Weighing in on the law review discussion below, my friend Kaimi Wenger at Tutissima Cassis writes about his experience as a Columbia Law Review articles editor:
I am not convinced that the law reviews are bad selectors, because they so often get it right. The majority -- probably the overwhelming majority -- of the best, most influential, and most important articles consistently appear in the top journals. Indeed, if editors were not generally capable of evaluating articles, it would probably be impossible to maintain the existence of top journals. Even if Harvard had the clout it now has, it would soon lose its influence if its editors were truly unable to discern between a great article by Professor Y and a pedestrian article by Professor Z.
I have no quarrel with this, but frankly, spotting articles that are likely to be important or influential is pretty easy. Looking at a combination of author, author's institution (a signal, albeit imperfect, of author quality), and topic (is the piece ambitious?) will get you pretty far in the article selection business.
The bigger problem with student selection at top law reviews is that many of the articles published by top journals are undistinguished. In fields other than law, there is an attempt to sort articles by journal quality ("A" journals v. "B" journals), and for the most part people trust the journals to signal something about academic standards. While we have a rough hierarchy among law journals, most of us recognize that the journal cannot provide the same sort of assurance of academic quality. This increases the burdens on legal academics because the sorting normally provided by the journal cannot be relied on here. This may not seem like a big deal for those who have real jobs -- and as one of my former colleagues like to say, "It's not like we're breaking rocks in the hot sun" -- but it is probably the source of the complaints you are hearing about the selection process.
Another cost is that many articles that are placed in lower-ranked journals deserve more attention, which they would receive if they appeared in a top-ranked journal. While electronic databases (Westlaw and Lexis) make it easier to find such articles, many people still use their overall impressions of journal quality in deciding what to read. In other words, law professors shirk the task of evaluating quality for themselves, outsourcing that task to student editors, and this produces some errors in the system.
Larry Ribstein has stayed on top of the story about law review publishing. He found this article on SSRN after the debate started. The article examines publication patterns in economics journals and concludes, "The literature provides evidence for myopic refereeing, editorial favouritism and the presence of 'lock-in' effect." But Larry provides the punchline: based on the abstract, he concedes, "editorial polish has some value, as reading this unpolished SSRN draft amply demonstrates."
Larry Ribstein plays off my post on law review by asking: "what is the value of the law review product?" He observes the perversity of "having barely trained students making basic decisions about what academic work gets published," but notes that the "virtue of the law review system is that it provides a law school subsidized outlet for just about anything a law professor or lawyer wants to publish." My initial post on this subject looked at the issue through the eyes of the student, but Larry views this from the standpoint of the professor.
When I first began teaching, I was convinced that law reviews were dinosaurs. I saw two big changes on the horizon: electronic publishing and peer review. While the first change seems to be happening, there are good reasons to resist the second.
With respect to electronic publishing, Larry notes the importance of the Social Science Research Network. Similar services exist for the hard sciences. The demand for these services is especially high for non-legal working papers because peer-reviewed publication is slow, and scholars want access to current work. At present, most papers on SSRN are written with the intention of publication in a more traditional journal, so it is not clear to me whether SSRN poses a threat to traditional law reviews.
Of course, SSRN is not the only outlet for electronic publishing. Many people (including Larry) self-publish working papers on the internet. Many law reviews provide electronic versions of their working papers or published articles on the internet. Westlaw and Lexis have been offering electronic versions of law review articles for years. And the Berkeley Electronic Press has created a collection of electronic journals as an alternative publication outlet. In short, electronic publication is here to stay.
Peer review, on the other hand, is not so certain to grab hold in the legal academy. The fact is most law professors enjoy being free of the constraints imposed by the peer review process. As long as we are speaking to each other, the absence of formal peer review doesn't seem to be much of a problem. Sure, a lot of garbage gets published in law reviews, but have you read an economics or management or sociology journal lately? Law reviews have not cornered the market on bad scholarship.
Larry rightly implies that peer review is a bottleneck. Legal scholarship is vibrant and the sorting for quality tends to be done by the community of scholars, rather than a small group of gatekeeper reviewers, some of whom have agendas that do not allow for new ideas to appear in top-level journals. Formal peer review is inherently conservative.
Most legal scholars engage in a less formal system of peer review, which includes circulating working drafts of papers and presenting papers at various symposia. Obviously, this informal process is not unique to legal scholarship, but it allows for some input by other scholars prior to publication, thus enhancing the overall quality of legal scholarship.
When the time comes to submit an article for publication, law reviews allow for multiple submissions. That is, the article can be submitted to multiple law reviews simultaneously. The benefit of this system, of course, is that it brings market forces to bear on the publication process. Whereas peer-reviewed journals take the time you would expect from a monopolist, law reviews act quickly, and they compete for articles. The result is that publishing in a law review, while sometimes painful for other reasons, at least has the virtue of being relatively quick.
The other advantage of law reviews from the professor's standpoint is that students do the hard work. In my best publishing experiences, students edit text with a light pencil, and they help to ensure conformity to citation style in the footnotes. Although I am ambivalent about the benefits of a precisely uniform citation style (having been weaned on the Chicago Maroon Book), the benefits associated with having student drones cannot be gainsaid. (In other fields, these drones are called Ph.D candidates.)
On balance, therefore, I am more sanguine about the future of law reviews than I was when I first started teaching. Absent some fundamental dislocation, I expect to be publishing in law reviews until I retire, an event still many years in the future.
May 03, 2004
At law schools in the United States, the end of the Spring Semester marks not only the beginning of summer clerkship season, but also the advent of the summer law review writing competition. Many law reviews sponsor such a competition as one method -- perhaps the exclusive method -- of obtaining membership on the journal's editorial staff. Every year at this time, students come to my office and ask whether they should attempt to "make law review." In my view, there is no simple one-size-fits-all answer to that question. In the following paragraphs, therefore, I reflect on my own law review experience and its place in my development as a law professor. My hope is that these reflections will assist students to make a more informed judgment regarding law review.
Most law students rightly see law review as a credential, another line on their fast-developing resume. When I received my invitation to the University of Chicago Law Review, a partner with my summer employer (a small firm in Newport Beach, California) remarked to my wife, "Your family will never go hungry." Here I was in the summer after my first year of law school, and I was being told that I had made it. As with most hyperbole, the core of truth behind that sentiment is worth examining. Why do people so value law review?
Some of the value lies in the sorting function of law review. Despite all kinds of evidence to the contrary, many people (even people who have been to law school and should know better) believe that law review members are smarter or more capable than their classmates. To the extent that law review membership depends on grades, there may be some basis for this assumption ... though that imbues grades with more value than they deserve. To the extent that law review membership is determined by the summer writing competition, it may signify that someone is a clever writer or that the editorial board evaluating the summer writing competition is incompetent to make such judgments. In any event, law review qua honor does not hold much water for me.
The real value of law review, to the extent that there is real value, lies in the law review experience. Strangely, this is an aspect of law review that is often belittled. Second-year law students (first-year law review staff members) typically engage in two activities: (1) editing and cite-checking the work of professors whose work is being published in the law review; and (2) writing a note or comment on some recent legal development.
Editing and cite-checking can be hellaciously boring, and the professional development benefits -- learning Blue Book citation? -- may seem trivial. What I didn't realize as I was going through that process is that I was beginning to develop the valuable mental habit of paying attention to details. Most law students (engineers and scientists often being the exception) have not developed this habit, and their work reflects it. Indeed, I found that upon entering law practice, I still needed to work extensively on this skill, and it has served me well, even if it can sometimes be annoying to the people who are the object of my attention.
Also, horrible tasks like cite-checking sometimes provide the impetus for wonderful bonding experiences among law review staff members. On several occasions, I was forced to work intensely with other members of the staff to meet a deadline, and despite the dreadful nature of the work, I have fond memories of the time spent with other people whom I respected.
The most important part of my law review experience was publishing a comment (on the free speech rights of public employees). This provided the best opportunity during my law school years to develop skills in legal research, analysis, and writing. Even though my effort failed to resolve (to my satisfaction) the problem I was addressing, I still value the experience of pushing myself to take a position (rather than just spewing endless renditions of "on the one hand" and "on the other hand," as was often the norm for exams). Moreover, writing that comment, I learned lessons about balancing tests that I have employed repeatedly in my career as a lawyer and law professor.
After one year of this sort of work, many law students have had their fill of law review. Others desire to move on to become part of the editorial board. (This is, of course, an exceptional opportunity. Law may be the only discipline that turns its professional journals over to graduate students, a fact made all the more astonishing when you consider that those students for the most part do not intend to become academic lawyers. As you might imagine, this is a source of endless frustration to legal academics, most of whom are nonetheless not willing to found a peer-reviewed journal.) I was a Comments Editor, and I enjoyed that experience -- well, most of that experience -- quite thoroughly. Not only did I create lasting bonds with other members of the editorial board, but I learned an immense amount about the nature of argumentation from editing the works of other students.
When students ask me whether they should attempt to "make law review," I usually relate these or similar observations. We talk about their goals, and I emphasize the need to continue their intellectual development. For some reason, many students have the idea that they have learned to "think like a lawyer" in their first year of law school, and they view the remaining two years as an opportunity to broaden their exposure to various subjects. In my experience, however, most law students would do well to remain focused on developing skills in research, analysis, and writing well beyond the first year of law school. Law review provides an opportunity to do that.
At the University of Chicago Law School, most people who were invited to membership on the law review accepted. This seems to be a less pervasive part of the culture at other schools where I have taught. Students often elect to clerk for a local law firm (thus gaining experience and much-needed money) rather than serving on law review. The law review may not be as prestigious at some schools as at others or a student may have career goals that do not require law review as a credential. Fair enough. But as noted above, I think it is a mistake to pursue law review membership only for the honor of being on law review. If you decide to pursue it, throw yourself into it ... or don't bother.
UPDATE: Ann Althouse responded to my encouragement to write about her law review experience. If you are looking for both side of the story, read my experience, then hers, or vice versa.
April 01, 2004
Law schools have a strange tradition that is known in no other part of academia: the students edit the professional journals. Crazy, but true. Indeed, I was a law review editor at one time. These posts by Brian Larson reminded me what that was like. Check out the Sleep Deprivation Index and "the sorcerer's em dash"! Great series of posts.
November 20, 2003
If you are not a lawyer or part of the legal academy, you may be surprised to learn that most legal scholarship is not peer reviewed, at least not in the traditional sense of that term. Our premier scholarly journals are edited by our students. While there are some advantages to this system (e.g., our articles are published much more quickly than articles in most peer-reviewed journals, and reviewer conflicts and machinations are eliminated), the disadvantages are significant. Law students who run these journals -- for one year terms, mind you -- show repeatedly why they are out of their depth. The latest evidence comes from the California Law Review at Berkeley.
Over the past few years, the Social Science Research Network has become the preferred method for law professors (and professors in other social sciences, particularly economics and finance) to distribute working drafts of their papers. From a consumer's standpoint, it is an incredibly useful and efficient means of obtaining the latest research. From an author's standpoint, it provides a means for reaching audiences previously unavailable through traditional law review publication.
Apparently concerned that their royalties were being impaired by this free service, the California Law Review recently asked its authors to remove their papers from SSRN. One of the authors, Dan Hunter of the Wharton School, decided not to take this request lying down. He composed the following letter (reprinted with Dan's permission) to the editor-in-chief of the California Law Review. I join whole-heartedly in Dan's views:
I write to you regarding the status of draft papers on the Social Science Research Network (SSRN) which the California Law Review has subsequently published. You have requested that any drafts on SSRN be removed upon publication by your journal. I ask you to reconsider your decision.
I take the unusual step of laying out here all of the details of this matter, since I want some greater record of the situation than email affords. I also intend to circulate this letter to other stakeholders in your decision in an effort to have them encourage you to change your decision.
My apologies for repeating information of which you are already aware.
Background
I have, over the last three years, agreed to publish three articles with the California Law Review. Two articles � �Philippic.com� and �Cyberspace as Place and the Death of the Digital Anticommons� � have been published with your journal and one other article � �The Laws of the Virtual Worlds� (written with F. Gregory Lastowka) � is to appear in your January 2004 issue. In agreeing to publish with you I have not made any amendments to your standard form publishing contract which provides, inter alia, for an assignment of copyright in the articles to your journal.
Prior to publishing with any journal, in order to make my work known to the academic and general community, I post drafts of my articles on the Social Science Research Network. This network, as you know, makes academic work freely available to the public for download, and provides a number of other reputational benefits for faculty members and academics. First, it provides a simple, online, publicly-accessible repository for academic literature in the social sciences. Second, it provides a notification service by email (for subscribers) of newly deposited work, arranged by discipline and specialty. And third, it provides an indication of the number of downloads for any given paper, so that authors might gain an indication of the popularity and significance of their work. So important is SSRN as a repository that I know of no researcher in my area (cyberlaw and intellectual property) who does not post there, and who does not use it as the basic online source for drafts of their work.
On November 6, 2003 you emailed me indicating that you had requested the removal of the drafts of my papers from SSRN. You allowed that abstracts of the articles might remain on SSRN, but suggested that if the members of the public were interested in reading the article then they should be directed to the commercial database providers, Westlaw, Lexis, and Hein Online.
By return email I asked you (1) whether I was being singled out for special attention, (2) why you were taking this action, since it seemed so counter-intuitive, and (3) whether you have commercial relationships with the three commercial publishers whom you mentioned in your earlier email.
On November 7 you responded that all authors were being treated in the same way. You also provided the basis for your decision:
�The reason we have this policy--which most other major law reviews share � is that we want to give our authors the chance to make drafts of their articles available during our long publication process, but we also want people to read the final versions of the articles, once published, not drafts and we want them to do it in a way that keep our revenue flowing. We get no funding from our law school (outside of space) and almost all our revenue comes from our contracts with electronic subscriber databases (e.g. Lexis), not from our print issues, and often on a "per hit" basis. That's the rationale behind our policy and our enforcement of it.�
Your Decision
With all due respect to your decision-making processes can I suggest to you (1) that this is a decision that fails on its own terms, (2) that it is a decision that means that you are using the position of the California Law Review to assist commercial interests, and (3) that it is a decision that places the California Law Review squarely against the widespread social movement seeking to unlock public access to information.
First, the decision appears to fail to meet the interests which you provide as justification for your decision. Your argument supposes that SSRN is a commercial competitor to legal database providers like Lexis or Westlaw. I would be interested to hear of any empirical evidence you have of this, but it is surely unlikely. The subscribers to online legal databases are largely confined to law firms and law schools. Since law schools have free access to these services, then the only meaningful market for commercial legal databases is in law firms. The articles on SSRN are in pdf format and therefore not fulltext searchable, and moreover they are generally preliminary drafts. Your argument therefore is that practicing attorneys will spend hours searching through the SSRN database for unfinished articles in preference to the easily-searchable, published version on the commercial databases. Even given the ridiculous sums charged by these providers, it is entirely implausible that SSRN competes with Westlaw/Lexis/Hein in this market.
Second, there is the issue of your capture by the commercial providers. On the face of it, your decision to remove my drafts cannot help but appear to be motivated by the interests of the commercial online database providers. Even if you are happy acting as the stalking horse of these commercial interests, the practical effect of your actions is to remove public access to information. Thanks to you, if people want access to my ideas then they can pay Westlaw or Lexis or Hein monopoly rents to get it. This was literally your suggestion in your first email message. You said that my articles were ��available through a number of online subscriber services, including Westlaw, Lexis, and Hein Online, and we encourage you to direct interested readers to these services.� You�ll have to forgive me if I think that this is the single most appalling statement I have ever heard from a law student. You may be happy with the idea that the general public cannot access my ideas without paying for them, but I think it is outrageous.
Finally, it is remarkable that you are seeking to reduce public access to material published in your journal at a time when other law schools and universities are championing greater public access to information. Harvard Law School is pushing open source legal materials, and Stanford Law School has created the Creative Commons, to name but two. It is ironic that computer scientists at Berkeley created the backbone of the Internet � bind and sendmail, for example � and gave it away for the betterment of all. Law review editors at Berkeley, on the other hand, appear to be committed to improving the quality of the cigars in the boardrooms at Lexis and Westlaw.
Congratulations. You must be very proud.
My Response
I consider this issue to be one that goes beyond my specific situation. I happen to be unusually sensitive to the effect of your decision, since I have published with you multiple times, and I am an untenured professor who is particularly attuned to the reputational benefits of SSRN. Moreover my speciality is in cyberlaw and intellectual property, and I am professionally opposed to locking up information behind the walled gardens of commercial database providers.
I believe this to be a matter that affects the public access to ideas which are published in law reviews across the country. I am therefore going to take the following actions:
1. I will not submit articles to the California Law Review while you have the current policy in force. Moreover, I will do everything in my power to organize a submission boycott of your review by other law professors while you have the policy in force.
2. I will circulate this letter to your Dean and the Deans of other law schools, in an effort to encourage them to set a policy of open access to ideas generated within law schools.
3. I will take this issue up with the American Association of Law Schools, the
professional association of the legal academy, for the same reason.
4. I will advertise the policy of the California Law Review as widely as possible within the open-access community, so that the general public might be made aware of your actions.
May I say, in closing, that I wish that this letter were not necessary. I have enjoyed publishing with the California Law Review. In each case you have been professional, and extraordinarily hard-working. Your efforts have clearly improved the quality of my work. (Indeed the bitterest irony in this matter is that the draft articles available on SSRN are inferior to the final published work, thanks to the work of the editors at the California Law Review). It genuinely pains me that, in the same week in which I sent you the final edits on my latest article, I should be forced to write this letter to you.
However, your decision is profoundly wrong-headed and is corrosive to the wider social interest in broad public access to information. Your decision is indicative of a wider problem within the American legal academy. This problem is one that must be stopped before you allow commercial considerations to obliterate public access to legal ideas.
I hope that you will reconsider your decision.
Yours faithfully
Dan Hunter
Robert F. Irwin IV Term Assistant Professor of Legal Studies
The Wharton School
University of Pennsylvania
UPDATE: Dan reports that the editors of the California Law Review have decided to defer a final decision on pulling material from SSRN until a meeting in Spring. He believes that pressure from the legal academic community was instrumental in their decision. Yeah!
November 11, 2003
With the proliferation of sophisticated interdisciplinary work in law schools, so-called "doctrinal" scholarship has become passe. I spend a good chunk of my time with scientists of all types outside of the law school, and I am sometimes tempted to embrace their condescension toward legal scholarship.
Then I am suddenly reminded by a conversation with a colleague or an article on my desk that traditional legal scholarship is unique. Where else do people study a process like this, described so eloquently by the celebrated Judge Benjamin Cardozo in The Nature of the Judicial Process:
In law, as in every other branch of knowledge, the truths given by induction tend to form the premises for new deductions. The lawyers and judges of successive generations do not repeat for themselves the process of verification, any more than most of us repeat the demonstrations of the truths of astronomy or physics. A stock of judicial conceptions and formulas is developed, and we take them, so to speak, ready-made. Such fundamental conceptions as contract and possession and ownership and testament and many others are there, ready for use. How they came to be there, I do not need to inquire. I am writing, not a history of the evolution of law, but a sketch of the judicial process applied to law full grown. These fundamental conceptions, once attained form the starting point from which are derived new consequences, which, at first tentative and groping, gain by reiteration a new permanence and certainty. In the end, they become accepted themselves as fundamental and axiomatic. So it is with the growth from precedent to precedent.
When well done, legal scholarship is just as enlightening and often more important than scholarship in other quarters. I am proud to be a contributor to that enterprise.