Should law journals do more? Are any doing so? Aside from promotions such as we at Concurring Opinions offer to a necessarily limited number of journals on this blog, listing recent issues, and some symposia pitches, law reviews don’t market themselves. Florida Law Review is poised to change this, and I support the leadership.

Contracts with some publishers, especially trade, university or hybrid presses, often contain industry-standard publisher promises to market using reasonable [...]]]> How are academic works promoted by publishers, trade or university presses, academic book publishers and law journals? In general, trade presses do a broad funded pitch, university presses do some but more narrowly, academic book publishers make a strong push to a targeted audience and law journals do . . . pretty much nothing.

Should law journals do more? Are any doing so? Aside from promotions such as we at Concurring Opinions offer to a necessarily limited number of journals on this blog, listing recent issues, and some symposia pitches, law reviews don’t market themselves. Florida Law Review is poised to change this, and I support the leadership.

Contracts with some publishers, especially trade, university or hybrid presses, often contain industry-standard publisher promises to market using reasonable or best efforts. Most such houses do so. In my experience, McGraw-Hill and John Wiley & Sons take these clauses seriously and do a good job performing them, not only with paid advertisements, but with results in the form of visible book reviews, author tours and presentations, and, ultimately, sales.

Other contracts, especially with academic book publishers, like West or Lexis, are silent on publisher marketing, but those presses commit resources to the effort anyway. I am impressed with both these publishers of my books. They get word out to teachers about my books, supplements, new editions, and supporting materials like classroom slides, problems-solutions, and teachers’ manuals and updates. The results are large numbers of adoptions and resulting sales, plus more people giving me valuable input into how to improve the work in subsequent editions.

Law review publishing contracts, at least the 40+ I’ve signed, never talk about journal promotional efforts, and I’ve rarely seen a law journal undertake much of any. Journals are obviously trying to expand their presence with various on-line variants of their production, a form of promotion, though mostly responding to new ways of disseminating knowledge. Aside from lack of time, theory may say this is fine because academics will research to discover the great published knowledge and resulting citations will reflect what is valuable—no marketing needed.

Theory and traditional practice aside, Florida Law Review, which will publish a piece of mine in 2010, has created a promotional program.  Florida Law Review has a Communications Editor, and related staff. Their job is to reach out to members of the legal community having particular interest in pieces they publish. The Review’s Communications Department works in partnership with authors to develop marketing plans to publicize works to the media, prominent professors, and accomplished practitioners.

This inspired approach to the dissemination of academic knowledge manifests in other creative results, like this recently featured at the Faculty Lounge, a Florida Law Review piece accompanied by interactive media. I’m impressed. In fact, this effort was a factor to me when I chose to accept Florida Law Review’s publication offer over other offers.

In previous years, I served as Faculty Advisor to my school’s law review. If I were doing that today, I’d urge editors to look at the Florida model as a leader. But perhaps that is happening elsewhere and I don’t know about it.

Readers of this post could benefit from comments saying what is doing at other reviews and, of course, what is appealing and anything detracting about what seems to me a desirable, innovative, law review practice.

The Yale Law Journal is pleased to present its new online platform, The Yale Law Journal Online (http://www.yalelawjournal.org/). YLJ Online will continue the Journal’s mission of providing accessible and substantive scholarship through the online medium. It offers original essays on timely and novel legal developments and responses to articles in the print Journal, as well as adapted lectures and recordings/podcasts of featured pieces.

When the Journal launched The Pocket Part in 2005, it was the first law review to establish an original online companion; as the Journal nears its 120th anniversary, YLJ Online represents the next step in that endeavor. The launch of YLJ Online’s original content section features an essay by Hiro N. Aragaki, addressing the Hall Street v. Mattel litigation and [...]]]>

The Yale Law Journal is pleased to present its new online platform, The Yale Law Journal Online (http://www.yalelawjournal.org/). YLJ Online will continue the Journal’s mission of providing accessible and substantive scholarship through the online medium. It offers original essays on timely and novel legal developments and responses to articles in the print Journal, as well as adapted lectures and recordings/podcasts of featured pieces.

When the Journal launched The Pocket Part in 2005, it was the first law review to establish an original online companion; as the Journal nears its 120th anniversary, YLJ Online represents the next step in that endeavor. The launch of YLJ Online’s original content section features an essay by Hiro N. Aragaki, addressing the Hall Street v. Mattel litigation and manifest disregard, as well as responses by selected scholars to Michael Stokes Paulsen’s The Constitutional Power To Interpret International Law (118 Yale L.J. 1762 (2009)).

In the coming weeks, YLJ Online will present a variety of essays and features on marriage, property, and corporate law, as well as a selection of pieces from the Hon. J. Harvie Wilkinson III and other participants in its inaugural Washington, D.C. conference on the Supreme Court’s certiorari process. Among the many features that YLJ Online offers are Essays (4,000-6,000 words), Commentaries (under 2,000 words), Responses, adapted lectures and solicited pieces. More information can be found on the Submissions page (http://www.yalelawjournal.org/submissions.html). All YLJ Online publications are available and fully searchable through LexisNexis and Westlaw. The Journal also provides all YLJ Online pieces in PDF/reprint format, and podcasts on its website/iTunes for selected pieces. For questions regarding YLJ Online, please contact the Journal’s Managing Online Editor, Jeff K. Lee, here.

Now available on YLJ Online:

Essay

Hiro N. Aragaki, The Mess of Manifest Disregard, 119 Yale L.J. Online 1 (2009). [HTML] [PDF]

Responses

Julian Ku, The Prospects for the Peaceful Co-Existence of Constitutional and International Law, 119 Yale L.J. Online 15 (2009). [HTML] [PDF]

Peter J. Spiro, Wishing International Law Away, 119 Yale L.J. Online 23 (2009). [HTML] [PDF]

Margaret E. McGuinness, Old W(h)ine, Old Bottles: A Response to Professor Paulsen, 119 Yale L.J. Online 31 (2009). [HTML] [PDF]

Robert Ahdieh, The Fog of Certainty, 119 Yale L.J. Online 41 (2009). [HTML] [PDF]

Fortunately, the practice allowing for concurrent submissions to student editors in recognized seasons makes the process less difficult compared to fields reliant on peer-reviewed journals, requiring exclusive submissions without identifiable seasons.

For instance, in mathematics, a new journal, Rejecta Mathematica, dedicates itself to publishing only articles previously rejected by a peer-review journal. This suggests considerable frustration with that system (along with other features Dave Hoffman recently blogged about here).

For legal scholarship, such a Rejecta Lex Rev. does not seem necessary or feasible. True, some pieces [...]]]> As this fall’s law review submission season draws to a close, it is likely that many worthy pieces will go unselected for publication or be selected by less prestigious journals or with longer time lags than sought. Affected authors face some choices.

Fortunately, the practice allowing for concurrent submissions to student editors in recognized seasons makes the process less difficult compared to fields reliant on peer-reviewed journals, requiring exclusive submissions without identifiable seasons.

For instance, in mathematics, a new journal, Rejecta Mathematica, dedicates itself to publishing only articles previously rejected by a peer-review journal. This suggests considerable frustration with that system (along with other features Dave Hoffman recently blogged about here).

For legal scholarship, such a Rejecta Lex Rev. does not seem necessary or feasible. True, some pieces are accepted for publication without receiving a single rejection, but the vast majority attract at least one rejection, and many are rejected by dozens or scores of journals. Still, legal scholars striking out or low any season face some issues.

Those receiving no offers must consider whether mass rejection is a substantive signal about a paper’s readiness for publication. If so, a rewrite is in order, perhaps an extensive one. Authors can spend coming months revising the paper, in preparation for submission in next spring’s season.

In addition, authors may reevaluate whether they targeted the requisite number and style of journals. Recalibrating the submission plan, perhaps to include more specialty journals for certain subjects, may be indicated, for spring.

Other authors may attribute mass rejections in the fall to relative scarcity of space then compared to spring. Books are largely unslated in the spring, but by fall, far fewer spaces remain to be slated.  Quality may not be the problem.

It may difficult to determine which inference to make from receiving no offers. For help, authors not having done so might post the piece on the Legal Scholarship Network of the Social Science Research Network (SSRN). This can create interest in a piece, perhaps even blog coverage, or unsolicited private comments from other scholars. The SSRN system, by tracking numbers of views and downloads, can also suggest the paper’s appeal in its current form.

If an author is correct that a paper was ready, despite no takers, revisions can be more modest, even nothing more than changing the title. After all, aside from having more capacity next spring, editorial boards will differ from this fall’s, giving papers a fresh chance of selection. If a paper was unready, it can be revised, and the revised version posted to SSRN and the prior one removed.

For those receiving disappointing offers, the issues are more complex. As a matter of principle, it seems responsible to accept an offer from any journal to which an author submitted a piece, the practice I prefer, normatively.

On the other hand, it may be widespread strategy to submit to more journals than one would actually publish in, to exploit some offers solely for the purpose of justifying expedited review requests to fancier journals the author is interested in. Authors following that strategy may be inclined to decline disappointing offers. They may take the offer(s), though disappointing, into calibrating their revision plans and submission strategy for next spring.

Less common, and less normatively freighted, are offers that disappoint because of timing, rather than prestige. Some offers this season may result in publication in print as early as January, while others may not print until August 2010. For some pieces or authors, timeliness may matter greatly, and authors must wrestle with the resulting trade off.   Waiting until spring to resubmit does not resolve the problem.  But these authors should also consider SSRN, functionally publishing the paper, and accepting the offer with a placement citation.

My several references to SSRN suggest another point about the law review submission and publication process. Papers posted to SSRN are read, appreciated and cited in ongoing scholarship, even when lacking placement in a print journal. Legal scholars are likely to become increasingly comfortable with this reference.

It is possible that papers posted solely on SSRN will achieve greater influence than those published even in the fanciest traditional print journals. A tipping point may appear in the future when such results gradually give SSRN an equal, and ultimately greater, footing. Then, mass rejections won’t even be an issue, and submissions to journals become anachronistic.  No Rejecta Lex Rev. ever needed.

CRITICAL RACE THEORY SPEAKER SERIES CRT 20: HONORING OUR PAST, CHARTING OUR FUTURE

Introduction

Celebrating Critical Race Theory at 20 Angela Onwuachi-Willig

Articles

Liberal McCarthyism and the Origins of Critical Race Theory Richard Delgado

The Re-Emergence of Race as a Biological Category: The Societal Implications—Reaffirmation of Race Alex M. Johnson, Jr.

Post-Racialism Sumi Cho

Jim Crow Ethics and the Defense of the Jena Six Anthony V. Alfieri

Notes

The Branding of America: The Rise of Geographic Trademarks and the Need for a Strong Fair Use Defense Joseph C. Daniels

There’s “No Such Thing as Too Much Speech”: How Advertising Deregulation and the Marketplace of Ideas Can Protect Democracy in America Kristen M. Formanek

The Antifraud Savings Clause of the National Securities Markets Improvement Act of 1996 Evan J. Leitch

Real Estate Causes Real Problems for Investors: Regulating Executive Liquidation of Stock Options as a Source of [...]]]>

CRITICAL RACE THEORY SPEAKER SERIES
CRT 20: HONORING OUR PAST, CHARTING OUR FUTURE

Introduction

How to Publish a Scientific Comment in 1 2 3 Easy Steps

(H/T: Leiter.)

Unfortunately, in legal academic publishing, it is common for authors never to hear from publishers, as the thread at The Faculty Lounge suggests (and my own experience over 15 years attests). Yet while I appreciate receiving rejection letters, I think the common silence entirely understandable, given the law review publication process. In my opinion, authors seeking requisite closure [...]]]> Following on my post about law review submission cover letters, this one is about law review rejection letters—and withdraws. Authors prefer receiving offers of publication to rejections. But most pieces attract at least some rejections and submissions to multiple publishers often get a high ratio of rejections to offers. Absent an offer, authors also prefer getting rejections to hearing nothing, to facilitate closure when making final publication decisions.

Unfortunately, in legal academic publishing, it is common for authors never to hear from publishers, as the thread at The Faculty Lounge suggests (and my own experience over 15 years attests). Yet while I appreciate receiving rejection letters, I think the common silence entirely understandable, given the law review publication process. In my opinion, authors seeking requisite closure should simply formally withdraw their piece from consideration once a deadline has passed.

As an example, this season, on August 8, I submitted an article to 45 journals (following standard practice in legal academics allowing for such concurrent submission). I received 3 offers (on August 18, 19 and 26), 17 rejections (trickling in from August 11 to September 2, when I accepted an offer), and did not hear from 25 journals.

I also followed standard practice of reporting offers to journals likely to be positivley influenced by them and requesting expedited review by the offering journal’s deadline. In response to so alerting about 20 journals on August 18, with an August 26 deadline, I received the August 19 offer, stating a like deadline, and alerted another ten. On receiving the August 26 offer, with a September 2 deadline, I alerted the rest.

My requested expedited reviews generated, aside from the 2 additional offers, rejections from a quarter to a third of those contacted each round by respective deadlines, without word from the others. To those, I promptly sent formal notices of withdraw. I did this in part because I assumed they had passed on the piece and in part because I preferred not to stretch out the process by repeatedly seeking deadline extensions or hectoring journals for an express decision, as many law review authors may do. I achieved closure, despite not having a decision.

True, I appreciated receiving the rejections, as they facilitated closure, but cannot fault journals from which I did not hear within deadline. After all, it takes time to complete the internal review process and the exact length varies with many factors, like availability of the numerous participating editors, degree of disagreement among them about a piece, and strength of conviction among those who favor and disfavor it. Facing an author deadline, the coordinating editor may reasonably believe it will be possible to meet it but find, in the end, it is not.

With a deadline passed, the issue is whether to respond to an author anyway or leave it at that (the more common practice). It may be difficult to respond, however, since no official decision may have been reached to justify a rejection (much less an offer, which would seem futile to deliver post-deadline even if consensus were reached). Further, if the internal process is incomplete but capable of completion through a deadline, it remains possible that the journal will yet hear from an author announcing an extension of the deadline (that common practice among law review authors). This argues in favor of journal silence, at least until the author subsequently withdraws the piece, whereupon the journal can express regret for lacking requisite time (which 2 journals did for me this season and several have done in the past).

So the burden of closure falls on the author, not the journal, and I think that is entirely reasonable.   Still, I also appreciate the rejection letters. While many follow a standardized form, occasionally a notable one appears. For me, one this year came from a journal in which I’ve published twice, once on a topic kindred to the current piece. The editors acknowledged that historical relationship, emphasized how they valued it, and explained how close the editorial board came to authorizing an offer, but under rules requiring near-unanimity that this piece did not command.

Even among rejection letters that are fairly standardized, one notes how they are all cordial and professional, and sometimes inform or remind authors of the nature of the process and probabilities of placement. Following are sample rejection letters received, gratefully, these past few weeks. I’ve highlighted in bold some of what I consider interesting or useful information—in addition to the vital and helpful fact of rejection.

1. I am writing in response to your request for expedited review. We have had an opportunity to consider your article. Unfortunately, we are unable to accept it for publication. This year we expect to receive approximately two thousand submissions for consideration, but we are able to publish only a dozen. As a consequence, we find that we must reject many thoughtful and interesting pieces. Thank you again for submitting your article to us. We hope that you will give us the opportunity to consider any articles you write in the future.

 2. Thank you for submitting your article. Unfortunately, we are unable to give you a publication offer. Because we receive nearly 2,000 submissions each year, we must turn away many fine articles. Please keep us in mind in the future when you are submitting work for publication.

3. Thank you very much for submitting your article. Unfortunately, we are unable to accept your piece for publication. Our journal publishes only four issues a year, but often receives hundreds of manuscripts every month. As such, we can only accept a slender fraction of the manuscripts we receive. We appreciate your submission and hope that you will continue to submit your work to us in the future.

4. Thank you for your submission. We have now completed our final review of your manuscript and unfortunately are unable to extend an offer of publication. The Review receives a large number of submissions and we are constrained by the limited number of pages we are able to publish. Frequently we must make the difficult decision to turn down an excellent piece of scholarship. We wish you the best of luck and look forward to your next submission.

5. Thank you for submitting your article. We receive many excellent submissions each year, and the selection process is very competitive. After careful consideration, we have decided not to publish your article. We wish you the best of luck, and look forward to reviewing your future submissions.

For those readers who are juggling multiple offers, consider using Concurring Opinions’ Customer Service Rankings ™ as a way of making [...]]]> Reading the (increasingly nervous) comments on Prawfs at the hiring thread,
you can really get a feel for how incomplete information can sometimes feel worse than ignorance.  Nevertheless, I figured that now might be a good time to get a sense of where the law reviews are in their submissions season.  If you are a law review editor, please post below your book status, i.e., full, open but working through backlog,  welcoming more submissions, etc.  If you are interested, please also post when during the week you typically make offer calls, so that those readers who are waiting will know when to feel most anxious!

For those readers who are juggling multiple offers, consider using Concurring Opinions’ Customer Service Rankings ™ as a way of making the tough choices.

Articles

Saving Facebook James Grimmelmann

Attempt by Omission Michael T. Cahill

Strange Bedfellows: Criminal Law, Family Law, and the Legal Construction of Intimate Life Melissa Murray

Insider Trading and the Gradual Demise of Fiduciary Principles Donna M. Nagy

Notes

Corporate Liability for Violations of Labor Rights Under the Alien Tort Claims Act Wesley V. Carrington

The Right and Wrong Ways to Sell A Public Forum John C. Crees

Searching for a Solution: A Proposed Change to the Code of Iowa Chapter 808A Morgan N. Engling

Nonprofits: Are You at Risk of Losing Your Tax-Exempt Status? Gina M. Lavarda

Brian Leiter notes, in the title of his post about Levinson’s article, that “academic law needs more fora for serious book reviews.”

Beyond law reviews, the number of book reviews in newspapers is rapidly diminishing.

This is [...]]]> Sandy Levinson has a thoughtful new essay lamenting the dwindling number of book reviews of books about the law — The Vanishing Book Review in Student Edited Law Reviews and Potential Responses, 87 Tex. L. Rev. 1205 (2009).  He discusses how the Michigan Law Review used to run 30 to 40 book reviews in its book review issue but now is running only about 10 to 15. He notes that among the top 20 law reviews, in 1987-88, they published about 125 reviews; in 2007-08, they published only 42 reviews.

Brian Leiter notes, in the title of his post about Levinson’s article, that “academic law needs more fora for serious book reviews.”

Beyond law reviews, the number of book reviews in newspapers is rapidly diminishing.

This is why we’re starting a new project at Concurring Opinions — we’ll serve as a forum for book reviews.

We will accept submissions from our readers — law professors, lawyers, law students, and academics in other fields are welcome to submit reviews.

The reviews we envision would be approximately the length of a New York Times book review — somewhere between 500 to 2000 words.

We will try to accept as many reviews as we can, but we will exercise editorial discretion if we think a review isn’t appropriate for our blog.  We’re aiming for serious reviews.

If you’re interested in writing a book review for us, we recommend that you first email us with a brief description of what book you’d like to review and your background, as we don’t want you to go through the work of writing a review only for us to think it doesn’t fit with our blog.  Emailing us in advance won’t guarantee acceptance, but we would hope to give you a good indication of whether we’d be interested in your review.

We believe that there’s a need for serious yet short book reviews, ones that aren’t as long as those published in law reviews.  That’s why we’re starting this project.  We expect it to be ongoing, so if you’ve read a law-related book recently and want a forum to publish your views about it, please think about doing a review for us.

If you publish a book review here, you keep copyright in your work, so you can use it, publish it, and disseminate it later in whatever way you desire.

So please email us if you’re interested.

There is considerable Web commentary on many aspects of the law journal submission process, which Dan Solove helpfully collects here.  Few address cover letters directly, and those are humorous, sarcastic, or questions without comments.There is a  sample cover letter on page 288 of Eugene Volokh, Academic Legal Writing, but I could not find a single one on the Web.

When discussed, there are conflicting impressions and advice. Co-op guest blogger Elizabeth Nowicki urges writing “a [...]]]> Following this post are four sample law review submission cover letters I have used in recent seasons.   I provide them after detecting an absence of any samples existing on the Internet and reviewing various posts and comment threads addressing the subject that leave readers conflicted about what a cover letter might accomplish. 

There is considerable Web commentary on many aspects of the law journal submission process, which Dan Solove helpfully collects here.  Few address cover letters directly, and those are humorous, sarcastic, or questions without comments.There is a  sample cover letter on page 288 of Eugene Volokh, Academic Legal Writing, but I could not find a single one on the Web.

When discussed, there are conflicting impressions and advice. Co-op guest blogger Elizabeth Nowicki urges writing “a crisp one-page cover letter” though Trevor Morrison and my GW colleague Orin Kerr, disagreed, opining they are useless.   Scott Dodson opined that, if a famous professor read and admired a piece, to say so in the cover letter, but an articles editor said that will not be believed unless the famous professor communicates that directly.   (Some other conflicting views appear in this thread addressing more general issues.)

What should a cover letter say? All the wrangling aside, some consensus appears as follows:

Basics. Obviously, submissions must indicate author’s name and contact information (mailing address, phone, email) and article title. Unless submitted in an electronic format that transmits this information, the cover letter is the place.

Word Count. Many journals request stating the piece’s word count, including footnotes. In addition, many journals since 2005 have express word count limits or preferences, and request cover letter explanations for approaching or exceeding the guidance.

Brevity. Keep it short, usually a single page of three paragraphs, never more than two, and then only if justified by background research and context otherwise not evident from the piece.

Main Point. State the piece’s thesis, explain its uniqueness and importance.

Prior Work. Reference your prior works, when relevant, not necessarily journal prestige, although not holding this back when relevant. (Those without prior publications may need to explain a bit more why they are pursuing scholarship, perhaps even referencing relevant credentials.)

You. Mention brief biographical data only if relevant to the piece, such as your role in the relevant discourse (or the foregoing caveat for new scholars).

Style. The cover letter should be thoughtful and sober.  You can try to entertain, but beware that attempted humor can backfire. Above all, avoid gimmicks, including strong sales pitches, exaggerated statements of importance or things unrelated to the piece.

Sample One: June 1, 2004, published in UCLA Law Review

June 1, 2004

ARTICLE SUBMISSION

CHOOSING GATEKEEPERS:
THE FINANCIAL STATEMENT INSURANCE
ALTERNATIVE TO AUDITOR LIABILTY

The enclosed Article will be the first to examine fully from a legal perspective a proposal to develop financial statement insurance as an alternative to the traditional approach to financial statement auditing. The concept was pioneered by an accounting professor, who wrote a few pages about it in a law journal, which has been cited in passing about a dozen times in other law review articles but never fully evaluated.

The article will open new avenues in a longstanding debate concerning how best to promote reliable financial reporting using third-party auditors. The financial statement insurance alternative takes a radically different approach to achieving the goal. This article is a policy piece, which will be of substantial utility and interest to all scholars of securities regulation, and many scholars in corporate law and insurance, as well as all those concerned about the financial reporting process.

An abstract accompanying this submission, and following the paper’s Table of Contents, provides more summary information. I hope you will accept the piece for publication.

Lawrence A. Cunningham

Sample Two: February 21, 2005, published in Michigan Law Review

February 21, 2005

ARTICLE SUBMISSION

PRIVATE STANDARDS IN PUBLIC LAW:
COPYRIGHT, LAWMAKING AND THE CASE OF ACCOUNTING

The accompanying Article provides the first comprehensive analysis of the consequences for copyright protection when privately-promulgated standards are embodied in public law. This problem is assuming increasing significance under a national policy Congress established in the late 1990s, being implemented by administrative agencies, of leveraging government’s regulatory function by incorporating privately-promulgated standards into law. The issue’s significance is best illustrated by the case of accounting standards, in which government’s leveraging strategy dates back several generations, but for which recent Congressional restructuring of the standard setters poses novel questions.

The Article drives new analytical avenues in three legal areas: copyright law, administrative law and securities regulation. Its inquiries concern the broad public policy context in which government exercises its regulatory powers and the consequences of its leveraging strategy for fundamental conceptions of fairness promoted by assuring free public access to binding laws. In brief, the Article contributes a framework for resolving critical but hidden public policy challenges and nominates a governmental official to implement it, while also providing necessary guidance for the federal judiciary.

Additional summary information appears in an abstract included with this submission. I hope you will accept the piece for publication.

Lawrence A. Cunningham

Sample Three: August 8, 2006, published in Vanderbilt Law Review

 August 8, 2006

A PRESCRIPTION TO RETIRE THE RHETORIC OF
“PRINCIPLES-BASED SYSTEMS” IN
CORPORATE LAW, SECURITIES REGULATION AND ACCOUNTING

The accompanying Article was inspired last fall when a Canadian task force on securities regulation sought my advice about whether Canada should adopt a “principles-based” or “rules-based” approach to that law. I said that the notions of principles- versus rules-based systems are unrealistic. Such rhetoric has spread worldwide since 2002 when many attributed corporate frauds epitomized by Enron Corp. to suspicion that the US accounting system is “rules-based” and Congress instructed the SEC to study whether it should be “principles-based.”

Similar rhetoric appears in discourse concerning corporate governance, with fans of Delaware law increasingly calling it “principles-based,” chiefly as a way to contrast it with US federal securities regulation, lambasted as “rules-based.” Since Enron, numerous countries are boasting that their corporate law, securities regulation or accounting systems are principles-based, including Ireland, New Zealand, and South Africa. The Canadian inquiry and this stirring rhetoric led me to research and write this Article-which confirms and adds depth to what I told the Canadian task force.

Research for this Article first engaged jurisprudential literature addressing rules versus standards. This is a fascinating body of knowledge that also contains considerable discord about what rules, standards and principles are; how they interact; what they should be called; and which are better. My analysis of the discord leads one to appreciate how these categories are not discrete but involve a continuum and how the concepts are not isolated but iterative. Armed with this learning, I then deepened my research into how these concepts are used in my major fields of expertise: corporate law, securities regulation and accounting.

In these fields, I discovered much rhetoric about rules and principles, including descriptions of the fields as rules-based or principles-based. But I found no systematic analysis of whether these labels are true or even meaningful-and my systematic analysis provides no basis to support the common rhetoric. I also researched and analyzed several proposals or studies about how one might design these fields as rules-based or principles-based, including a proposal connected to the Canadian task force’s inquiry and the study that Congress directed the SEC to prepare. I discovered that even when one tries consciously to fashion any of these systems as rules-based or principles-based, the quest fails.

I then tried to understand why the rhetoric promoting principles-based systems has taken hold and especially why it is spreading in the post-Enron world. Several explanations emerged from my research and reflection. The rhetoric could reflect a struggle against an excess of rules that might indeed have explained some of the shenanigans at Enron and other companies. Or it could show desire to promote principles of business ethics, also blamed for the Enron-type debacles.

While both of these explanations prove credible, my involvement with the Canadian task force exposed me to a third possibility. There is an intense political struggle in Canada among its provinces for leadership in crafting new national securities regulation. This began to explain the task force’s inquiry of me: British Columbia is pushing a principles-based approach while Ontario is resisting it. The two provinces have essentially opposed political (and economic) interests in the outcome of their struggle, and these stakes seem more important than any particular features of the actual design of the system.

This insight led me to reflect on how this struggle parallels those concerning federalism in US corporate governance and leadership in establishing global accounting (between the US and the International Accounting Standards Board, IASB). I position this part of my analysis in the context of the regulatory competition literature. Analysis suggests that these efforts seek product differentiation, with British Columbia, Delaware and IASB promoting their products as principles-based in contrast to their opponents’ rules-based products. But since my inquiry suggests that such products are unrealistic, the efforts also are a form of consumer deception that should be arrested. Perhaps the various jurisdictions should compete rather than harmonize, but the competitors’ efforts at product differentiation must not advertise falsely.

The article reflects all of this and remains at around 26,000 words. In short, it questions increasingly common global rhetoric that denominates legal or accounting systems as “rules-based” or “principles-based.” In doing so, the piece contributes significantly to corporate law and securities regulation (and accounting) by systematically investigating their bases in rules and principles, offers important insight concerning regulatory competition, and makes worthy if more modest contributions to jurisprudence on the rules-standards question. I hope you will offer to publish the piece.

Lawrence A. Cunningham

Sample Four: March 4, 2008, published in North Carolina Law Review

March 4, 2008
ARTICLE SUBMISSION

THE SEC’S GLOBAL ACCOUNTING VISION:
A REALISTIC APPRAISAL OF A QUIXOTIC QUEST

The accompanying Article provides the first comprehensive analysis of the revolutionary proposals the Securities and Exchange Commission is making to jettison traditional US accounting requirements in favor of international standards. This subject is a matter of intense discussion worldwide in many settings. This Article offers numerous perspectives on the pending debate and examines challenges that must be met in the near and medium term. It synthesizes recognized issues in the discussion and extends them in several important directions that continue to be overlooked. It is intended to be a useful immediate contribution to the academic and policy discussion and furnish an assessment that will remain useful over the longer term.

My background makes me nearly uniquely qualified to provide this contribution. My scholarship is widely-cited and well-known as providing a leading, informed and reflective analysis that often contrasts with commonly- but mistakenly-held conceptions in pending debates. Recent examples of this style of my work appear in some of the best law reviews in the country, including Minnesota (2007), Vanderbilt (2007), Columbia (2006), Michigan (2005) and UCLA (2004), among numerous others. This work occupies what can be called “law and accounting,” which usually means encounters with numerous legal subjects including, in the case of the current Article, administrative law, comparative law, corporations, international law and securities regulation.

I have prepared this Article to be the most thorough and realistic appraisal of the SEC’s policy vision and to illuminate this debate for a wide audience of scholars, practitioners and policy makers within the US and abroad.

Additional summary information appears in an abstract included with this submission. I hope you will accept the piece for publication.
Lawrence A. Cunningham

Hat Tip: Jake Barney

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Judging the Voting Rights Act by Adam B. Cox and Thomas J. Miles.

Professors Cox and Miles’ study found that judicial ideology and race are closely related to findings of liability in voting rights cases. In their response Professors Staudt and VanderWeele argue that, because Cox and Miles failed to investigate the possibility of dependencies between the variables they were studying, their results may be biased. Staudt and VanderWeele develop an alternative approach for exploring the effects of judicial attributes on voting using causal directed acyclic graphs. This methodology can help empirical researchers investigate the relationships between variables in order to posit statistical models with appropriate controls and to identify true cause [...]]]>

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Judging the Voting Rights Act by Adam B. Cox and Thomas J. Miles.

Professors Cox and Miles’ study found that judicial ideology and race are closely related to findings of liability in voting rights cases. In their response Professors Staudt and VanderWeele argue that, because Cox and Miles failed to investigate the possibility of dependencies between the variables they were studying, their results may be biased. Staudt and VanderWeele develop an alternative approach for exploring the effects of judicial attributes on voting using causal directed acyclic graphs. This methodology can help empirical researchers investigate the relationships between variables in order to posit statistical models with appropriate controls and to identify true cause and effect relationships when they exist. While this methodology has become popular in a number of disciplines—including statistics, biostatistics, epidemiology, and computer science—and is widely believed to be a valuable tool for empirical research, it has yet to appear in the empirical law literature. Staudt and VanderWeele offer a brief introduction of the method in their response in order to initiate discussion as to its worth in empirical legal studies.

Articles

Cause for Concern: Causation and Federal Securities Fraud Jill E. Fisch

Twombly, Pleading Rules, and the Regulation of Court Access Robert G. Bone

Values and Value Creation in Public–Private Transactions Nestor M. Davidson

Green Is Good: Sustainability, Profitability, and a New Paradigm for Corporate Governance Judd F. Sneirson

Notes

A Newsworthiness Privilege for Republished Defamation of Public Figures Matthew J. Donnelly

The NLRB’s Oil Capitol and Toering Decisions and Their Effects on Unionization and American Labor Law Michael J. Hilkin

Stuck in a Bind: Can the Arbitration Fairness Act Solve the Problems of Mandatory Binding Arbitration in the Consumer Context? Joshua T. Mandelbaum

Extending Refugee Definitions to Cover Environmentally Displaced Persons Displaces Necessary Protection Kara K. Moberg

A group of law reviews have created a new website called The Legal Workshop. The law reviews include Cornell, Duke, Georgetown, NYU, Northwestern, Stanford, and the University of Chicago. According to the press release:

The Legal Workshop features short, plain-English articles about legal issues and ideas, written by an author whose related, full-length work of scholarship is forthcoming in one of the participating law reviews. But The Legal Workshop does not house a collection of abstracts. Instead, it offers an engaging alternative to traditional academic articles that run 30,000 words with footnotes, enabling scholars to present their well-formulated opinions and their research to a wider audience. In addition to making legal ideas understandable, The Legal Workshop seeks to house the best of legal scholarship [...]]]>

A group of law reviews have created a new website called The Legal Workshop. The law reviews include Cornell, Duke, Georgetown, NYU, Northwestern, Stanford, and the University of Chicago. According to the press release:

The Legal Workshop features short, plain-English articles about legal issues and ideas, written by an author whose related, full-length work of scholarship is forthcoming in one of the participating law reviews. But The Legal Workshop does not house a collection of abstracts. Instead, it offers an engaging alternative to traditional academic articles that run 30,000 words with footnotes, enabling scholars to present their well-formulated opinions and their research to a wider audience. In addition to making legal ideas understandable, The Legal Workshop seeks to house the best of legal scholarship in one place—making it easier for readers to find the best writing about all areas of law.

Over at Legal Theory Blog, Larry Solum offers some thoughtful reactions:

The first innovation of “The Legal Workshop” is that it transforms long-articles into short-form online pieces. It seems likely that the short-form versions will reach a wider readership. Bravo! I hope this succeeds!

Second, I am a bit skeptical of the ambitious claims in the press release about reaching “the general public.” . . . . This prose is not aimed at the general public and will be incomprehensible to general readers. (This is not intended as a criticism of the writing, which does an exemplary job of reaching the general audience of legal academics.)

UPDATE: Doh! I didn’t realize that Nate already beat me to the punch and wrote about The Legal Workshop here.

Let’s try something different. As the comments to this post suggest, authors have some odd experiences when dealing with law review editors (both peer and students). Some journals are very professional in their dealings, others never get back to you. Some journals are bluebook fiends, requiring citation of obvious points. Others barely touch the editing pen.

I’ve created a poll which asks you to rank law reviews by their relative quality in [...]]]> Brian Leiter has been playing with the Condorcet Internet Voting Service to measure law school rank and law review rank by prestige. As Brian notes, there is a striking correlation between USNWR rankings and those for his polls of law schools and law reviews. (The latter, at least, isn’t surprising.)

Let’s try something different. As the comments to this post suggest, authors have some odd experiences when dealing with law review editors (both peer and students). Some journals are very professional in their dealings, others never get back to you. Some journals are bluebook fiends, requiring citation of obvious points. Others barely touch the editing pen.

I’ve created a poll which asks you to rank law reviews by their relative quality in back-of-the-office operations: do they do a good job communicating with prospective authors; are they good, value-adding, editors; do they create useful online fora to discuss articles post-publication; do they publish on time, etc. While it’s probably the case that customer service isn’t something that authors care much about when choosing between journals of very distinct prestige ranks, it ought to matter in close cases.

Go ahead, take the poll. Leave comments about particularly good or bad law review customer experiences below.

[For the final results, click on through to the next page.]

With over 100 votes in, the top fifty law reviews are:

1. Michigan Law Review (Condorcet winner: wins contests with all other choices)

2. Texas Law Review loses to Michigan Law Review by 51–25

3. Harvard Law Review loses to Michigan Law Review by 49–14, loses to Texas Law Review by 28–14

4. Minnesota Law Review loses to Michigan Law Review by 51–11, loses to Harvard Law Review by 17–13

5. Virginia Law Review loses to Michigan Law Review by 49–7, loses to Minnesota Law Review by 14–10

6. William and Mary Law Review loses to Michigan Law Review by 49–12, loses to Virginia Law Review by 12–11

7. Tied:

The Yale Law Journal loses to Michigan Law Review by 52–11, loses to Minnesota Law Review by 14–12

UCLA Law Review loses to Michigan Law Review by 51–5, loses to William and Mary Law Review by 11–8

9. Tied:

Fordham Law Review loses to Michigan Law Review by 49–6, loses to UCLA Law Review by 9–8

Wake Forest Law Review loses to Michigan Law Review by 48–7, loses to The Yale Law Journal by 11–8

11. Emory Law Journal loses to Michigan Law Review by 47–8, loses to Wake Forest Law Review by 12–5

12. Stanford Law Review loses to Michigan Law Review by 53–8, loses to The Yale Law Journal by 14–9

13. Tied:

University of Pennsylvania Law Review loses to Michigan Law Review by 50–8, loses to Stanford Law Review by 12–9

UC Davis Law Review loses to Michigan Law Review by 48–9, loses to Stanford Law Review by 13–10

15. The University of Chicago Law Review loses to Michigan Law Review by 52–5, loses to University of Pennsylvania Law Review by 12–7

16. Columbia Law Review loses to Michigan Law Review by 53–8, loses to The University of Chicago Law Review by 12–10

17. Washington University Law Review loses to Michigan Law Review by 49–5, loses to Columbia Law Review by 10–9

18. Boston College Law Review loses to Michigan Law Review by 51–7, loses to Washington University Law Review by 9–6

19. Northwestern University Law Review loses to Michigan Law Review by 48–10, loses to Columbia Law Review by 11–9

20. Tied:

New York University Law Review loses to Michigan Law Review by 48–8, loses to Northwestern University Law Review by 11–8

Harvard Civil Rights-Civil Liberties Law Review loses to Michigan Law Review by 46–8, loses to Northwestern University Law Review by 9–8

22. Tied:

The Georgetown Law Journal loses to Michigan Law Review by 50–8, loses to Northwestern University Law Review by 10–8

University of Illinois Law Review loses to Michigan Law Review by 50–6, loses to Washington University Law Review by 9–6

24. Southern California Law Review loses to Michigan Law Review by 51–8, loses to The Georgetown Law Journal by 12–7

25. Tied:

Vanderbilt Law Review loses to Michigan Law Review by 48–7, loses to The Georgetown Law Journal by 8–7

Notre Dame Law Review loses to Michigan Law Review by 48–8, loses to New York University Law Review by 9–8

North Carolina Law Review loses to Michigan Law Review by 52–6, loses to Southern California Law Review by 8–7

28. California Law Review loses to Michigan Law Review by 50–8, loses to Vanderbilt Law Review by 8–7

29. Tied:

Duke Law Journal loses to Michigan Law Review by 50–9, loses to North Carolina Law Review by 9–8

Berkeley Technology Law Journal loses to Michigan Law Review by 46–8, loses to Notre Dame Law Review by 8–6

31. Indiana Law Journal loses to Michigan Law Review by 48–6, loses to Duke Law Journal by 8–7

32. Iowa Law Review loses to Michigan Law Review by 52–5, loses to Duke Law Journal by 10–6

33. Wisconsin Law Review loses to Michigan Law Review by 50–5, loses to Duke Law Journal by 7–5

34. Florida Law Review loses to Michigan Law Review by 47–7, loses to Iowa Law Review by 7–6

35. Tied:

Cornell Law Review loses to Michigan Law Review by 52–6, loses to Iowa Law Review by 8–6

Hastings Law Journal loses to Michigan Law Review by 50–4, loses to Florida Law Review by 8–4

37. Tied:

Law and Contemporary Problems loses to Michigan Law Review by 42–9, loses to Florida Law Review by 6–4

Houston Law Review loses to Michigan Law Review by 49–5, loses to Cornell Law Review by 7–5

39. American Journal of International Law loses to Michigan Law Review by 46–4, loses to Iowa Law Review by 5–4

40. Tied:

Harvard Journal of Law & Technology loses to Michigan Law Review by 46–5, loses to American Journal of International Law by 5–2

Boston University Law Review loses to Michigan Law Review by 51–5, loses to American Journal of International Law by 7–2

The American Journal of Comparative Law loses to Michigan Law Review by 46–4, loses to Law and Contemporary Problems by 5–3

43. American University Law Review loses to Michigan Law Review by 48–7, loses to Harvard Journal of Law & Technology by 7–4

44. Harvard Journal on Legislation loses to Michigan Law Review by 45–5, loses to American Journal of International Law by 6–2

45. Cardozo Law Review loses to Michigan Law Review by 49–4, loses to Harvard Journal on Legislation by 6–4

46. Tied:

Supreme Court Review loses to Michigan Law Review by 46–4, loses to Cardozo Law Review by 5–2

Virginia Journal of International Law loses to Michigan Law Review by 45–4, loses to Cardozo Law Review by 5–3

48. Harvard Journal of Law & Public Policy loses to Michigan Law Review by 46–4, loses to Supreme Court Review by 5–3

49. Yale Journal of International Law (write-in) loses to Michigan Law Review by 47–5, loses to Harvard Journal of Law & Public Policy by 7–2

50. Ohio State Law Journal loses to Michigan Law Review by 49–7, loses to Yale Journal of International Law (write-in) by 7–6

Columbia Law Review, Volume 109 Issue 2 (March 2009)

Article

Civil Liability and Mandatory Disclosure

Merritt B. Fox

Notes

Policing the Fourth Amendment: The Constitutionality of Warrantless Investigatory Stops for Past Misdemeanors

Sameer Bajaj

The Blank Page Before You: Should the Preemption Doctrine Apply to Unwritten Practices?

Chang Derek Liu

Essay

A Bargaining Power Theory of Default Rules

Omri Ben-Shahar

Also, feel free to use the thread as a place to write about attempts to reject rejections, wheedle acceptances, or otherwise share in the madness that is the 2009 law review tournament. ™

A few weeks back, Matt Bodie put up a thread on the winter law review submission season at Prawfs. It didn’t get too many responses, suggesting to me that the season hadn’t yet arrived. Time having passed, I’m putting this post up to inquire of our student law review readers:

1. Has your board turned over?

2. If not, when will it?

3. Do you want new articles on the day the new board moves in, or would you prefer to get used to the new digs first?

4. If you have already turned over, are you planning any theme issues that folks ought to consider submitting specialized pieces for?

5. What format do you want pieces in (especially if you are [...]]]> [Bumped x2.]

A few weeks back, Matt Bodie put up a thread on the winter law review submission season at Prawfs. It didn’t get too many responses, suggesting to me that the season hadn’t yet arrived. Time having passed, I’m putting this post up to inquire of our student law review readers:

1. Has your board turned over?

2. If not, when will it?

3. Do you want new articles on the day the new board moves in, or would you prefer to get used to the new digs first?

4. If you have already turned over, are you planning any theme issues that folks ought to consider submitting specialized pieces for?

5. What format do you want pieces in (especially if you are changing your previous policies).

6. Do you (still) take cash?

I will bump this thread weekly.

Columbia Law Review, Volume 109 Issue 1 (January 2009)

Article

The Federal Common Law of Nations

Anthony J. Bellia Jr. & Bradford R. Clark

Notes

Discerning Discrimination in State Treatment of American Indians Going Beyond Reservation Boundaries

Shira Kieval

More Bitter Than Sweet: A Procedural Due Process Critique of Certification Periods

Amy McCamphill

Essay

The Subjective Experience of Punishment

Adam J. Kolber