Sunday, March 30, 2008

ExpressO and Expressways

Academic legal journals differ from academic journals in most other fields in two principal ways: 1) Most academic legal journals are student-edited; and 2) authors can submit to multiple legal academic journals simultaneously. By contrast, in most other fields, the journals are faculty-edited (i.e., "peer-reviewed") and, perhaps as a result, authors can only submit to one journal at a time. If your first-choice journal rejects your article (and doesn't give you an opportunity to revise and re-submit), only then can you submit your article to a second journal and perhaps thereafter, successive journals.

Most academics in fields other than law, and quite a few legal academics, find it bizarre that students--typically students in their second year of law school--make decisions about what articles to publish. Having published articles in both student-edited and peer-reviewed journals, including faculty-edited law journals and faculty-edited physics journals (back before I became too stupid to understand, much less write, academic articles in physics), I think the criticism is fair, but that the peer review process has its own flaws. For example, in most faculty-edited journals, authors are entirely responsible for the their footnotes. That's fine so long as authors are conscientious and careful, but it sometimes leads to the publication of fraudulent data. Michael Bellisiles published his key, and apparently fraudulent data about Colonial-era probate records of firearm ownership in peer-reviewed history journals. Nobody asked to see his source material. Had he sought to publish his work in a typical law journal, the student editors probably would have demanded documentation.

If I were re-designing the law journal world, I'd want to try to keep students involved for the value they add in verifying sources but shift a substantial portion of the article selection process to faculty. The students would likely resist such a change. Part of the attraction of being a law review editor is the power to make publication decisions. But I think the resistance could likely be overcome. Students who work for law reviews do so primarily because they're told it's a prestigious thing to do. If they were still told the same thing after faculty had wrested the selection process from them, the students would still sign up. Whether faculty would be willing to do this work is another question, but I suspect the answer is probably yes. Already, many student-edited law reviews seek input from faculty on publication questions. Whenever I am asked for my opinion about such matters and I consider myself qualified in the field, I feel some obligation to help out. (And below, I'll suggest an even more radical change for legal scholarship.)

Now an observation on phenomenon number 2: the ability of authors to submit to multiple journals simultaneously. I haven't done any empirical work on this subject, but I have good anecdotal sources for the following. As quantity standards for tenure and entry-level hiring have ratched up at most law schools in the last 20 years or so, the number of articles written and submitted for publication has increased by what I would guess is about a factor of 2 or more. This has resulted in a proliferation of journals. For example, Columbia, where I now teach, has 14. Harvard, where I went to law school, also has 14. Cornell, where I shall shortly teach, is a substantially smaller school, and has a modest 3 student-edited and 2 faculty-edited journals. ExpressO, a website that facilitates the submission of journal articles, has over 550 journals in its database.

An aspiring academic with an article to peddle sends it to 100 or more journals, and then, as soon as she gets an offer of publication, asks more prestigious journals to expedite their consideration of the article. This results in all sorts of games. Many journals now give very short deadlines (as short as an hour or even take-it-or-leave-it offers), especially if they make an offer after an expedite request. Conventional wisdom for aspiring academics (who, unlike many established scholars, don't have a reputation or institutional affiliation on which they can rely to get their articles read), holds that the only way to get one's article out of the pile at a relatively high-ranking journal is to first get an offer from a relatively low-ranking journal, which, no doubt, must infuriate the editors of lower-ranking journals; they are serving, in effect, as a screening mechanism for other journals.

ExpressO is both an effect and a cause of the chaos that ensues from the possibility of simultaneous submission to hundreds of journals. In the pre-Internet age, submitting to multiple journals cost time and money. ExpressO reduces the marginal cost (in time and money) of submissions to nearly zero. Many schools have institutional accounts that pay for
ExpressO even for alumni aspiring to academia, and even for those who pay the bill themselves, at $2 a pop, the marginal price is still pretty darn low. ExpressO was created less than 5 years ago, and was pretty clearly a reaction to the need of relatively unknown authors to send out their drafts to a great many journals simultaneously. But in facilitating just that, it has almost certainly exacerbated matters. More submissions per author means less time per editor to review each article submitted.

ExpressO has thus operated much like an expressway to a suburb/exurb. People leave the urban core and ring suburbs, lured by the promise of cheap housing and a bucolic lifestyle. But then others join them and pretty soon the transportation network that once served farmers adequately is unable to handle the rush of commuters. Government responds by building expressways, which ease the commute for a short time, but then the very existence of expressways induces more people to move, and pretty soon the exurb-dwellers are spending two hours driving to work and the trees have been replaced with strip malls.

The solution to the expressway problem is to make it attractive for people to live close to where they work. The solution to the "ExpressO problem" may be the opposite: Instead of concentrating publications in a small number of journals, the answer might be a radical expansion of publications, to wit: self-publication on websites and the like. That's hardly a crazy idea. We would lose the credentialing function that law review publication serves but that has always been the weakest portion of the existing system, as it leaves to 2Ls the decision about what is publication-worthy.

Posted by Mike Dorf


Jason Wojciechowski said...

The difficulty with self-publishing seems that it would be actually finding articles you want to read. We'd all subscribe to the RSS feeds for Sunstein and Tribe (and you!). But what about when you're doing research and you want to do text searches? Westlaw and Hein won't be available unless they've made a decision about which self-published works to put in their databases. And in that case, the credentialing function will still exist, except it will exist entirely outside the law schools.

I'm trying to think of a way around this. Google? (E.g. a new Google sub-search: "Google Law Review".) Then someone has to give Google a list of the relevant sites to examine when you're doing a "law articles" search, i.e. someone has to grant credentials to certain articles / authors.

Ensure that everyone uploads everything they write to SSRN? This could work, although I'd bet it'd be quickly overrun -- every lawyer and their mother wants to be a legal academic. Searches would return hundreds or thousands of results.

Maybe something like SSRN modified by voting algorithms like Digg has, so the wheat will separate from the chaff. I guess the only question then is whether Digg (and sites like Digg) actually work. I don't know the answer to that.

David C. said...

Many authors currently publish on SSRN, although I think that the understanding is that those works are typically drafts awaiting journal selection. The drawbacks of not pursing formal publication are (1) you abandon the army of student editors who battle typos and verify propositions, and (2) you lose searching capabilities on Westlaw and Lexis.

Also, there's probably some value to having publications in the very top journals, like Harvard and Yale. To the extent that many legal academics feel compelled to skim these publications to see what's being written, the journals provide material for a common discourse. I may be a property rights scholar with a conservative ideology, and you might be a liberal interested in family and gender law, but perhaps we both read, and can talk about, Posner's "A Political Court," simply because it was the HLR Foreward a few years ago. Otherwise, if profs were forced to browse countless websites looking for interesting articles, they might find themselves frequenting only websites of certain scholars, or only those that deal with certain areas of the law. The odds of stumbling on to some interesting article by a new author, or on some other legal topic, could decline.

In my mind, there's an obvious solution to the ignorant-gatekeeper problem of student run journals: Hiring committees evaluating an applicant's CV should give very little weight to the prestige of the journals in which the applicant has published. Maybe the Penn students thought an article wasn't great, and the [insert less prestigious school] editors loved it, but that's no reason why the committee cannot make its own informed decision after reading the article. In other words, how about a little de novo review from hiring committees, instead of abuse of discretion? This would remove almost all of the problems with student-edited journals. Everybody gets published somewhere, it all shows up in WL/Lexis, and each work gets judged on its merit, not on its ability to convince 23-year-olds at certain schools that it is groundbreaking.

David C. said...

Whoops. Didn't see Jason's comment until after I posted. Replace most of earlier comment with "ditto."

Ori Herstein said...

I wish David’s dream of a world of hiring committees who are only influenced by quality would come true. Alas, the obsession with pedigree and hierarchy is so pervasive in the academy and especially in the legal academy and practice that I doubt whether it is a realistic dream.

Frank said...

Self-publishing is a very good idea. Mike Madison has explored many of the "information overload" issues in this piece:

As for "what if people miss the big Posner article that appeared as an HLR Forward": check out Dan Hunter's critique of Sunstein's worries about the "Daily Me" in the review

C.E. Petit said...

I'm going to approach this a bit sideways. One of the values that student-edited law review boards can add — but not always manage to do — is a more-recent non-law perspective, on both the substance and the writing.

As a specific example, my year as an Articles Editor involved three AEs and an EiC who had all had substantial life experience between college and law school... and led us to reject several articles by law professors who managed to misstate fundamental principles while trying to be "interdisciplinary." (That life experience we had among us included graduate work and degrees in hard sciences and engineering; spotting errors in higher math probably isn't too common...)

A bigger problem, though, is that — as a group — law professors are wretched writers, and worse editors. One of the functions of an editor is to edit, and a self-confident student is more likely to spot unclear statements and question them. Perhaps we should expect professors to do so, too; the problem is that they don't.

Carl said...

A bigger problem, though, is that — as a group — law professors are wretched writers, and worse editors.

You do realize that these same "self-confident" student staffers with superior editing skills and invaluable life experience are precisely the kind of people who become the very law professors that you so deplore, don't you? What in your opinion explains this horrific transformation they undergo when they assume the other side of the podium?

Jean said...

We are all mentioning (and seem to agree) that the drive for credentials and prestige drives a lot of this problem. But, like Prof. Dorf said, that largely drives the students to law reviews, as well. So you can't divorce this problem from student-run journals, because we are existing in the same world as professors, with the same pressures. I have no idea whether I would like law review (though I do enjoy wielding a red pen), but I will probably at least try out, because that's what I'm "supposed" to do. Perhaps the idea of separating editing from choosing articles is a good one. But I hesitate to assume that law students have no ability to spot a well-written article or decide what topic is timely or innovative. As c.e. petit said, not everyone on a law review is 23 with no "life" experience (God, I hope not, otherwise I won't bother trying). But even if they are, is that to say they can't make good decisions? Many of the professors we admire went straight through school, after all. If law reviews take the best students, they're the best students for a reason.

Also, while most (if not all) professors were on a law review, we shouldn't too closely associate the two positions. The vast majority of law students, and therefore law review editors, do not become professors. So it's possible that some of the good editors/writers, as well as the bad, go into academia. I think what c.e. petit was referring to, though, is the fact that some legal scholars seem to get so high in their ivory towers, they forget how to write for others, rather than themselves and the guy (or girl) in the office next door. Law professors don't just get there because they're good writers - it's because they're prolific writers. And this goes back to the whole point of the post in the first place.

Carl said...

But I hesitate to assume that law students have no ability to spot a well-written article or decide what topic is timely or innovative.

I don't think anyone is denying that law students can identify decent writing. The problem is that they simply do not know enough about the cutting edge of legal scholarship to judge whether a well written article makes a serious contribution to it.

I'm fairly sure I could identify a well-written article in some branch of theoretical physics. I'm absolutely certain that the A I received in my foundation course as an undergrad does not qualify me to determine whether it ought to be published.

Although legal scholarship is not nearly as impenetrable for a neophyte as quantum mechanics, I sincerely doubt that most law review members at even elite law schools have bothered learning more than what's necessary to do well on an exam in the first year curriculum.

This is no doubt at least part of the reason why unaffiliated and unknown legal academics have difficulty getting published in elite law reviews - the editors have to rely on the reputation of the author as a proxy for the quality of the article because they have little basis to go on otherwise.

A further consequence of this, I suppose, is that well-known law professors have an incentive to mass produce well-written but shoddy scholarship since there's a ready market of elite law reviews standing by to lap up anything with the right name on it. But if this is true, then (contra some earlier commenter) there is no real value to the top law reviews, since they are simply collecting the work of marquee professors, which most legal scholars know enough to seek out on their own if they so choose.