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