By Mike Dorf
A little over a year ago, I posted on the lessons I had gleaned from my experience in a 3-on-3 basketball tournament as they applied to the game theory of law journal submissions. I concluded that, contrary to conventional wisdom, the optimal time to submit an article on spec for a law journal is not immediately upon the journal's opening for submissions in a given cycle, but about three weeks into the cycle--at least so long as most others are still following the conventional wisdom. In this year's follow-up, I want to report on an interesting development in the world of student-edited journals.
Recall that student-edited law reviews permit multiple simultaneous submissions, but the "price" they charge for doing so is giving authors a relatively short period of time to accept or reject an offer of publication. Here is how I described the dynamic in last year's post:
The risk of sending to too many journals is that you may get an offer from an obscure journal in which you would rather not publish your article. An author who receives such a publication offer will quickly notify the more prestigious journals to which she has sent her manuscript, asking them to "expedite" their consideration of her manuscript. Indeed, for many junior scholars, the whole point of sending the article to journals down the food chain is precisely to get an offer that can then be leveraged for an expedite, because the journals up the food chain are so flooded with submissions that they may not otherwise even bother to read the submission before they have accepted enough articles to fill the entire volume of the next year's journal.
One has to be careful in playing the expedite game, however, for two reasons. First, the editors of a top journal are not going to drop everything to consider an article by someone they've never heard of just because she has a publication offer from the Central Alabama Journal of Firewalking and Law. Accordingly, the best practitioners of the expedite game seek expedited reviews in waves: Get an offer from a fourth-tier journal; use it to get expedited reviews at third-tier journals; get an offer from the third-tier journal; lather, rinse, repeat.
But that brings me to the second risk. Law journal editors understandably don't like being used in this way, and so they will often give short deadlines. For example, a number of them say that if an author seeks an expedited review and gets an offer of publication, the author has an hour or less to decide whether to take the offer. This is not enough time to use the offer to try to expedite somewhere else. Journals further down the food chain lack the leverage to make such exploding offers, but they can put some pressure on authors with relatively short deadlines, thus playing on authors' risk aversion.Now for the new development. At the end of last spring's submissions cycle, a number of law journals announced a new policy under which each of the agreeing parties will give authors seven days to decide whether to accept or reject an offer. I wasn't paying attention to the adoption of this policy last year, when it was noted on Balkinization but, so far as I can tell, was not analyzed by anyone in any serious way. Let me see whether I can shed any light on what is really going on. The policy announcement (quite appropriately) decries "exploding offers" but I suspect that there is a bit less altruism here than at first meets the eye. We can see why by examining the signatories. Here is the complete list of the parties to the agreement (thus far):
Boston University Law Review
Harvard Law Review
Minnesota Law Review
Stanford Law Review
University of Chicago Law Review
William and Mary Law Review
Yale Law Journal
Harvard Civil Rights-Civil Liberties Law Review
Harvard Environmental Law Review
Harvard Human Rights Journal
Harvard International Law Journal
Harvard Journal on Law and Gender
Harvard Journal on Legislation
Harvard Latino Law Review
Harvard Law and Policy Review
Yale Journal of Law and Feminism
Notice that these journals fall into three distinct categories: (1) First-tier flagship journals; (2) Three good-but-not-top-15 journals; and (3) eight specialty journals at Harvard and one at Yale.
One must immediately be a bit skeptical about the motives of the journals in the first category. The Harvard Law Review--which appears to have been the main organizer of this move--has nothing to lose and everything to gain from the abolition of exploding offers. Pretty much likewise for Stanford, Yale, and Chicago. I suppose that occasionally HLR loses a head-to-head competition with one of these others for an article, but publication tastes are sufficiently idiosyncratic that most of the very top journals will get most of the articles they want. The main way that the HLR loses an article it wants is by not having time to review it before a competing offer explodes. So by agreeing to give authors seven days, the HLR does not prejudice itself. At the end of those seven days, the vast majority of offerees will take the HLR offer. What HLR accomplishes through the policy, however, is to exert pressure on other journals to adopt the same policy. By going to seven days, Chicago and Stanford will ensure that they occasionally lose an article to Harvard or Yale, but, again, thanks to the idiosyncracies of the process, such losses will be rare. Mostly they will gain if seven days becomes the norm throughout the law journal world.
The other two categories are a bit harder to explain, but not impossible. Suppose you're an author looking to submit your article. Under the new regime, a sensible submission strategy is to send your draft out in two waves. Begin by sending it to all of the flagship journals on the list plus whichever of the specialty journals is appropriate for your subject matter. If a month or so goes by and you have gotten no offers from any of these journals, you can then send your draft out to all of the journals that do not abide by the seven-day policy. But if you get an offer from a journal in category (2) or (3), you expedite with all of the journals in category (1). And this shows why the journals in categories (2) and (3) signed up. It's true that by holding their offers open for seven days, they risk losing articles to HLR, YLJ, SLR, and UCLR, whereas if they gave exploding offers they would get some articles that otherwise might have been picked up by one of these journals higher up the food chain. However, by being on the list, category (2) and (3) journals get submissions in the first wave that they otherwise would not get.
Consider a hypothetical illustration. Let's say that an author follows the two-wave strategy and gets an offer from the Minnesota Law Review. She expedites at HLR, YLJ, SLR, and UCLR, all of which (let's say) reject her article. What does she do now? She hasn't yet submitted her article to the second wave, so she can't expedite at, say, the U Penn L Rev. She might well just take the Minnesota L Rev offer, however, because of risk aversion. This explains why we don't see very low ranked journals on the list: authors would use those journals to expedite at the top of the list but turn down offers from such journals to enter wave 2 if push came to shove. But for what I'm calling the good-but-not-top-15 journals, being on the list is a way of getting good will for seemingly acting selflessly, while still managing to give de facto exploding offers in many circumstances.
Time will tell whether this turns out to be a winning strategy for the journals in categories (2) and (3). If it does, we can expect to see their ranks swell--which would work very much to the advantage of the category (1) journals. And once the ranks of category (2) and (3) swell, the game theory of a category (2) or (3) journal joining the 7-day-club would begin to swing around: They would no longer be giving de facto exploding offers. They would then be getting only the detriment but none of the benefit of having joined the club. But by then, if the club had reached critical mass, it would be too late for a journal to defect.
So, will it work? I sure hope so. Even if HLR's motives were not as pure as claimed in the explanatory letter, doing away with exploding offers would certainly be good for authors!
Postscript: Not knowing about the 7-day club when I sent out an article this past cycle, I didn't follow what I've identified as the two-wave strategy. I might not have been able to do so even if I had been more clued in, because my paper -- co-authored with Professor Buchanan and discussing last summer's debt ceiling crisis -- wasn't ready to submit until mid-March anyway. Thus I can't report on my experience under the new regime. (Our article will be published in the October 2012 issue of the Columbia Law Review, the highest-ranked journal that is not a member of the 7-day-club, and a journal that gives one-hour deadlines on offers extended following an expedite request. That strikes me as a very rational policy for the Columbia Law Review to have adopted, at least during the period in which the "club" discussed above is small.)