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Proposals & Post-Tenure Publication

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12 Responses

  1. Former Articles Editor says:

    A few thoughts from an outgoing articles editor at a top law review. The first is that the legal academy benefits tremendously from blind review of articles. Having read blind, my volume is publishing far more articles by previously unknown authors than by “big names,” and it isn’t because we didn’t read the submissions from big names. That doesn’t just help the authors whose work we publish; it helps to disseminate the freshest and most innovative ideas in the field. And it’s our way of adding value. A piece by a big-name professor will draw plenty of hits on SSRN whether or not it winds up in a top law review. To the extent that our “stamp of approval” is worth anything, it’s for people whose work will otherwise go unread.

    The second is that while you might produce excellent work under a submission-on-spec system–and while my journal publishes plenty of stellar solicited features and reviews–that is not always the case. The incentives just don’t work well.

    So while the current system is undoubtedly frustrating to big-name professors, it’s really the best way to serve the field by selecting the best work without regard for the pedigree of its author and by ensuring that pieces are in solid shape even before the editing process.

  2. Orin Kerr says:

    Tim,

    Interesting ideas, as always, although I tend to look at this pretty differently.

    First, think your approach rests on a false assumption: “In the submissions system [a professor's] reputation, earned through years of work, is worth nothing.” To the contrary, my sense is that a professor’s reputation is actually worth a great deal in the submission process — perhaps too much. Based on talking to a lot of articles editors over the years, by sense is that editors are often quite focused on proxies for article quality such as where the professor teaches (the better the school, the easier the placement), where the professor has placed before (the better the past placement, the easier the placement this time), how many citations the professor has (the more, the easier), and the like. It’s true that there are two journals, Harvard and Yale, that do blind reads at first — or at least purport to do them, with the actual practices a bit uncertain. But the rest of the journals do not.

    Even if your assumption were right, I think it’s interesting that established professors would see the submission process as a “bother.” Can you say a bit more about that? Bother in what sense?

    I assume it’s not a bother in terms of time. Writing a law review article takes hundreds of hours, while submitting via expresso takes about 5 minutes. So I gather that’s not the problem. The other kind of “bother” might be stress. If you’re an established professor at a top school, you might feel a little anxious about putting your articles in the general submission mix: Given all the advantages you have coming from a top school, you might feel a little embarrassed if your article don’t place in a top journal. People might wonder about the quality of your work, and you might conclude it’s just not worth it to risk that possibility. Or they might just not want the stress generally, knowing that their work is being judged. Is that the kind of bother you mean?

    If that’s what you mean, then I’m not sure there’s a problem here that needs a solution. There are more articles than top placements, so there is a competitive system for the placements. Pretty much everyone feels stress in competitive systems: there are winners and losers, and therefore you can always end up a loser. If there are scholars who don’t want to submit articles because they don’t want the stress of competitive processes — and they have the luxury of an established position that means they don’t have to engage in it — then they have lots of alternatives such as symposium issues for their work.

  3. I am finishing up as an Articles Editor at Yale, and I completely agree with the comment from “Former Articles Editor.” Our discussions of articles at the committee level were all blind, and we were often surprised after rejecting an article with important problems (e.g., with soundness, novelty, coherence, or other attributes of a good law review article) to learn that it was by a giant in the field. (Many of these articles still placed well, which suggests that Orin is right that reputation is still worth a great deal in the system.) If we were not reading blind, we would have been much less likely to accept an article by someone who had never published. Part of my defense of blind reads may be selfish — when I submit my latest piece on patent disclosure I hope to be judged on a level playing field with the most cited patent law professors — but I think this meritocracy of ideas benefits the legal profession. If anything, I think we need to move to a system where “reputational capital” is worth less, not more.

    I also agree with Former Articles Editor and with many commenters on yesterday’s post that accepting articles based on proposals will often lead to low-quality work. As those who have worked on law journals will know, if you want an author to make major changes to a piece (e.g., to cut an overly long Part I that doesn’t add to the argument), you need to ask for that as a condition of the offer. Once the author has a publication offer, the incentives to spend a lot of time on the article (or to make even minor changes) go way down. And even if law reviews could pull articles that don’t live up to their promise, this would be logistically challenging in terms of journal production schedules — editing, cite-checking, and formatting an article takes months, so it would not be easy to pop another article into the empty slot.

  4. Matt Lister says:

    I’m guessing that, Political Liberalism… [wasn't a]blind read.

    No, surely, but it’s worth noting that versions of most of it had been published in journals already and much of it had been given as lectures, too, sometimes 10 years or more before it was published as a book, so I’m not sure that it helps the case presented here all that much.

  5. Orin Kerr says:

    Lisa,

    That’s a very helpful comment. And your patent disclosure article looks terrific, too: Good luck with it.

    I’d also echo Lisa’s point that the meritocracy that law reviews aim for — even if they don’t always satisfy the ideal — is critical. There are already lots of “rich get richer” dynamics in legal academia. If anything, I think we should be trying to make the system more of a meritocracy rather than less: The worthy outsiders trying to break in deserve more of our focus and concern than the insiders who can rest on their laurels.

  6. A.J. Sutter says:

    “Many professors are not so much lazy but rationally prefer systems where their accumulated reputational capital is worth something.” — again, whose rational preferences are the ones to be indulged? Writers’ or readers’?

    Is this part of a general trend of a Chicago-style market economy evolving into plutocracy? Where “established” reputational capitalists — whose reputations are based, ironically enough, on economic readings of the law — want a VIP room to avoid the competition they earned their reputations touting? Why not compete head-to-head with the student-run law reviews, and start your own for yourself and other “good, established people”? How about calling it the CBB [Can't be bothered] Review of Law?

  7. Thanks so much for the provocative post, Tim. Lisa’s point is a crucially important one and like Orin, think that environments amenable to new talent and ideas are so valuable. Indeed, thanks to Lisa, I found both her article and the Due Process piece, both superb. And I appreciate that your post painted a simplified set of choices for established authors in order to make a point. But it is far more complicated than that. Indeed, some of my favorite law profs continue to do a combination of books, submitted works, jointly authored pieces, and symposia pieces, all contributions to the literature, paths worth following for a rich and exciting post-tenure career.

  8. TJ says:

    Tim,

    I think your idea will only work with a faculty-edited journal, as you mentioned in the last post. A student edited review lacks four things, all of them fatal to the proposal-proposal: (1) time-per-submission, (2) expertise (3) repeat-play, and (4) leverage. The lack of time to read every submission means that they invariably rely on proxies. The lack of expertise means they invariably rely on the most superficial proxies like the author’s law school and prior placements. As Orin has noted, the general criticism of law reviews isn’t that they rely on the author’s “established reputation” too little, it is that they do it too much. And as you concede your idea will only exacerbate this trend.

    Your response seems to be that you can deal with this on the back-end, through the editing process. But here, there is a rather large difference between student-edited reviews and book publishers. Once your book proposal, there are still strong incentives to write a good book–(1) royalties, (2) the possibility of the publisher rejecting the book, and (3) future relationships with the publisher. Student-edited reviews have no such disciplining mechanisms. To take an analogy, a student-edited law review accepting a proposal is like hiring someone to write an article that cannot be fired, cannot be disciplined, and has no other incentive (except self-motivation) to do good work. I.e. you are introducing all the incentive problems of tenure, without even the promise of future increases in pay or the possibility of lateraling. And your initial premise was that there is a problem of tenured professors at top schools not having incentives to write articles . . .

  9. Tim Wu says:

    Ah, I give up, sounds like the whole idea is doomed. (Except maybe the pitch symposium idea as a way of weeding out the “musings on…”)

    I’m surrendering because I generally agree with policies that give new entrants a chance if not to say an advantage. Hell I wrote a whole (pitched) book about that at some point. Its not really my style to be cheering on the incumbents, so to speak.

    When I wrote these posts I had in mind a certain individual, undeniably a genius, and I was thinking, what would every encourage him to put his efforts toward a law review piece, instead of another book, chapter, or public writing. Because I feel like some of what he wants to say would work better in that format.

    But now I’m thinking, it will probably never happen.

    Finally, I do like the idea of CBB Review of Law. Has a nice ring to it. I guess its other names are (1) the Supreme Court Review and (2) putting working papers on SSRN and basically letting that be the end of it.

  10. Orin Kerr says:

    When I wrote these posts I had in mind a certain individual, undeniably a genius, and I was thinking, what would every encourage him to put his efforts toward a law review piece, instead of another book, chapter, or public writing. Because I feel like some of what he wants to say would work better in that format.

    If you can come up with a way to get Larry Lessig to write articles, that would be an accomplishment. ;-)

  11. blind? says:

    My understanding is that while both at Harvard and Yale purport to review “blindly,” the first batch of papers is reviewed with regard to the author’s name/institution. After the initial cut, articles are given to the committee on a “blind” basis.

    Perhaps Lisa can clarify how it works. It’s great that YLJ is publishing from a first timer, though. But query whether someone without a publishing record would get through the non-blind cut if she or he wrote on something other than conlaw?

  12. Sean M. says:

    I’m not Lisa, and I’m not a former Articles Editor of the Yale Law Journal or Harvard Law Review. However, when I was Senior Articles Editor at my journal, I knew the submissions system pretty well. If I am wrong, I hope someone will correct me.

    Harvard and Yale understand that not all authors will submit pieces with their name and institutional information stripped from the paper; after all, people submit to more than just Yale and Harvard and many schools care about these quality proxies. But at the same time, Harvard and Yale don’t have the administrative manpower to redact identifying information from every single submission they get before it gets read by an Articles Editor.

    As such, as I understand it, if you submit a blind manuscript, it will be read blindly at the first level. But if you submit a non-blind manuscript, it will be read non-blind at the first level. If the first-level reader passes it on, the first-level reader takes on the responsibility of stripping the author’s identifying information before it goes on to the next level.

    I hope this explains why or how some articles are not truly blind read all the way through. I hope even more that I’m right.

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