Category: Law School (Law Reviews)

6

Legal Peer Review Journals: Time to Reject/Accept/R&R?

One of the advantages of student-edited law journals is that the turn-around time for acceptance or rejection is typically relatively fast – if you are going to hear, you’ll know within a month or two 95% of the time.  The same can’t be said for peer review journals in other fields, which are famously very, very slow.

What about peer reviewed journals that focus on law, and which regularly publish the writings of American law professors?  After the jump, I’ve listed the the top fifty peer and referreed journals, by combined impact factor (W&L) rank.  I’d be curious to hear from readers who’ve submitted to these journals regarding how long it took to get a substantive response (whether acceptance, rejection, or R&R). I’ll participate in the comment thread if others do – I’ve submitted to JLS, JELS, and JLEO, and JLA, and have generally positive views about those journals’ ability to get back with some answer in a reasonable amount of time.

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4

Subsidizing Student Scholarship

In recent discussions about reforming law review submissions to decrease the burden on editors, authors have been treated more or less as a unit. The argument goes that all authors submit too many articles, creating a mountain of paperwork for poor editors to sort through.  But of course not all authors are similarly situated – letterhead bias distinguishes between professors; practitioners have little time to polish pieces and consequently rarely make it to board reviews; and many journals exclude student authors entirely.

Notably, excluding student authors is a foolish rule that testifies more to student editors’ insecurity than to any thoughtful judgment about the quality of scholarship produced by particular authors.  (I’ve made this argument repeatedly here and to every Law Review editor I speak to – I won’t bore you with it again.)  Assuming that this bad policy is on the way out, I wondered whether law schools ought to be in the business of subsidizing scholarship by, say, paying for submissions on expresso.

Of course, we already subsidize scholarship in a sense by creating a system of writing seminars and guided research credits. (In my view, such credits could and should be better spent). But direct subsidies are relatively rare.  When I was at Harvard, there was no money available for what was then a hard-copy mailing process. Mike O’Shea and I were lucky enough to get Olin Center funding to mail out this piece.  Later, I heard that Elena Kagan made funding generally available.  I’ve no idea how common that practice is – Temple, for example, limits its BePress account to faculty.

Some schools obviously have sufficient resources so as to make the choice anodyne.  For others, the pros and cons are worth discussing:

Pros:

  1. Students who can publish at an outside journal get a resume item of some use, and not incidentally increase the likelihood that someone will actually read their work.
  2. We pay for similar resume-enhancing items – like clerkship letter postage – which benefit only a few members of the class.
  3. Spending law school funds on direct student services is generally a good thing!
  4. The cross-subsidy argument in con #2 applies as strongly to paying for faculty scholarship. What’s good for the goose….

Cons:

  1. The world doesn’t need more law review submissions –  and paying for submissions creates moral hazard for students just as it does for their professors.
  2. Taking tuition dollars and giving them to students to produce scholarship, so as to produce resume credentials, effectively is a wealth transfer to students who need help the least.  Exactly like the clerkship process, schools end up pouring resources into the most credentialed members of their class.

What do you think?

5

Preemption Checks

I was signing a law review copyright agreement today.  It states that the Authors covenant that they “shall check on a bi-weekly basis to ensure that the Article has not been preempted.  If the Article has been preempted, the Authors shall notify the [Law Review] no later than 48 hours after discovery of the Preemption.”  Preemption is further defined as the “publication of another article, essay, or other piece in a legal publication that contains, in significant form, the original ideas of the Authors.”

This is perfectly fine, as far as it goes.  I can see why the law review would want to know if someone has been writing in the space occupied by my article, and I can further understand why they’d want me to do the checking for them.  But it’s long been my view that there is basically no such thing as article preemption — a necessary adjunct to the concept that there’s nothing new under the sun is that you can always find some way to write around existing scholarship.  Indeed,the fretting by junior scholars (and law journal editors) about preemption is a signal that they overvalue novelty. False novelty, along with quick and dirty normativity, is one of legal scholarship’s primary sins.  Junior scholars should be happy to see writing in their field that “covers” a topic that they are working on.  It will give them something to frame around, to react to, and will ensure that there are consumers for whatever they end up coming up with.  Of course, you should cite to articles which talk about similar topics, and you need to make very clear what your distinct contribution is. But completely preempting articles?  I don’t think they exist.

14

The Tragedy of Anonymous Comment Threads

Shame About Submissions Is For Suckers

Prawfs is running its annual Law Review Angsting thread.  Like many such threads, it is dominated by anonymous commentators. That struck me as odd, and I said so.  Several anonymous commentators immediately objected that I wasn’t understanding the reputational risks involved.  They said that for pre-tenure scholars, “there is a distinct risk in publicly announcing that you have an article submitted for publication, at least before it is actually accepted.”  The argument goes that the piece it isn’t accepted, and the person goes on the lateral or entry market, then the world will know that they are shopping around already rejected goods.  Another commentator that if you talk about your article not getting offers, you might sway law review editors against the piece. Failure reeks.

I found these arguments surprising, and weak.  But I don’t want to hijack Prawfs’ thread, which is now moving onto further productive hand-wringing.  So, here goes.

1.  This strikes me as a commons tragedy of sorts. If the norm was to sign your name as a part of an effort to be transparent about an obscure process, and both successful and unsuccessful authors repeatedly shared information about their processes, then journals wouldn’t take adverse inferences. But since that’s not the norm, people who do sign their names are fearful of being singled out as lemons.  (I think that the real chance of a journal taking this kind of inference is approximately negative 1 billion.  They can’t even manage to read real articles in front of them.  Or be prepared for class. They are not reading the seventh page of a Prawfsblawg comment thread.)  Similarly, if being open about your identity was encouraged, academics wouldn’t have the reaction that the commentators worry about.  But it isn’t.  So each individual commentator, acting in their perceived self-interest, is anonymous. The quality of information decreases.  Free-riders abound.

2.  In Paul Horwitz’s magnificent post, Courage, Prudence, and Tenure, he noted that young scholars are often too prudent and insufficiently courageous.  He also said that it’s the job of more senior academics to push courage.  This, I think, is a very small example of that phenomenon. Look. You can be as tactical and careful and strategic as you want. You can fret till the sun goes down about every shadow behind every bush. And that kind of strategic maneuvering might – might – pay dividends at tenure time. But it strikes me that if you live your life in that kind of crouch, you probably will not produce exciting scholarship, or be an inspiring teacher, or contribute meaningfully to the institution you are at. You probably will be an uninteresting blogger.  In this regard, I think sometimes about an academic who, when he started teaching, had a ton of interesting ideas. You know the type.  But he never amounted to much as a scholar in part because he was so very afraid of what others thought about his work.  Would people realize he didn’t actually know what he was doing?  That his ideas weren’t as shiny in written form as they had been when he first spun them out over coffee? What if he didn’t achieve his potential? Better, he convinced himself, not to write than fail to be a once-in-a-generation-colossus.

3.  And even if you are fearful of seeming to fail, waiting for law review editors isn’t failure, and you shouldn’t see it that way.  Law review submissions is a weird process – there is zero feedback, the timing is peculiar and random, the stakes feel high.  People invent all kinds of reasons why it works the way it does, and what you can do to get control.  Struggling with submissions is the norm, even for very accomplished people at very elite institutions. The person who gets three offers in two days is the exception. And it is the norm for established teachers and newbies alike.  I’ve waited 18 months for a peer review process to end with an acceptance.  And last year, we waited for Stanford Law Review for four, excruciating, months.   This year, I’ve had an article out for a month – with basically no word – and another for a week – again, silence.  The commentators at Prawfs make it seem like I ought to feel embarrassed or ashamed. I don’t. And if you are waiting for an acceptance, you shouldn’t either.  It will come.  Or it won’t.  While you are waiting, you can write something else.  Get back to work.

1

Stanford Law Review Online: Don’t Break the Internet

Stanford Law Review

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.

0

Stanford Law Review Online: The Drone as Privacy Catalyst

Stanford Law Review

The Stanford Law Review Online has just published a piece by M. Ryan Calo discussing the privacy implications of drone use within the United States. In The Drone as Privacy Catalyst, Calo argues that domestic use of drones for surveillance will go forward largely unimpeded by current privacy law, but that the “visceral jolt” caused by witnessing these drones hovering above our cities might serve as a catalyst and finally “drag privacy law into the twenty-first century.”

Calo writes:

In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones threaten our dwindling individual and collective privacy. But unlike the debates of recent decades, I think these arguments will gain serious traction among courts, regulators, and the general public.

Read the full article, The Drone as Privacy Catalyst by M. Ryan Calo, at the Stanford Law Review Online.

0

Journal of Law and Courts

There’s a new venue for peer-reviewed articles about law — the Journal of Law and Courts.  As Chris Zorn explains:

“The Journal is edited by David Klein, of the University of Virginia’s Department of Politics, and published by the University of Chicago Press. The JLC is a double-blind peer-reviewed, single-submission journal, indexed by Lexis-Nexis, Westlaw, EBSCO, JSTOR, and others. While formally an APSA section journal, the JLC aims to be the premier outlet for the publication of work on law, courts, and things judicial from a wide range of perspectives.  More information about the journal and instructions for authors can be found here.

Submissions are being accepted now, via the journal’s Editorial Managerpage. We anticipate publication of the inaugural issue in spring 2013.”

Seems like a great forum!

0

What Difference Presentation?

David Udell is the Executive Director of the National Center for Access to Justice and a Visiting Professor from Practice at Cardozo Law School.

In my line of work, I have seen many efforts in the political realm to shut down civil legal services for the poor, and have continually worked to combat such efforts.  In 1996, when the Gingrich Congress barred federally funded legal services lawyers from bringing class actions on behalf of the poor, I left Legal Services for the Elderly in order to finish a lawsuit on behalf of widows and widowers who were suing to compel the United States Treasury to fix its practices for replacing stolen Social Security payments.  When I later moved to the Brennan Center for Justice, I helped bring a lawsuit against the rules that barred legal services lawyers from participating in such class actions, I filed another lawsuit against similar rules that barred law school clinic students from bringing environmental justice cases in Louisiana, and I built a Justice Program at the Brennan Center dedicated to countering such attacks on the poor and on their lawyers.

In their March 3, 2011 draft report, What Difference Representation? Offers, Actual Use, and the Need for Randomization (“the Study”), authors D. James Greiner & Cassandra Wolos Pattanyak are right about the importance of developing a solid evidence base – one founded on methodologies that include randomization – to establish what works in ensuring access to justice for people with civil legal cases. They are right again that in the absence of such evidence, both the legal aid community and its critics are accustomed to relying on less solid data.  And they are smart to “caution against both over- and under-generalization of these study results.”  But, unfortunately, the bare exhortation to avoid over- and under-generalization is not sufficient in the highly politicized context of legal services.

While the authors obviously do not have any obligation to arrive at a particular result, they can be expected to recognize a need to avoid statements that have a high probability to mislead, especially in light of the likely inability of much of the Study’s audience to understand the authors’ methodology and findings.  In fact, because of the Study’s novelty and appearance in a non-scientific journal, it will be relied on to analyze situations where it doesn’t apply, and by people who have no background in social science research, plus it will be given disproportionate weight because so few comparable studies exist to judge it against.  It is these factors, in combination with the politicization of legal services, that make it crucial that the authors’ assertions, particularly in the sections most likely to be seen by lay readers (the title and the abstract), do not extend beyond what the findings justify.

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1

GW’s Junior Scholars Finalists

Thanks to my colleague, Lisa Fairfax, GW has finalized the program for this year’s Junior Faculty Business and Financial Law Workshop and Prize (detailed here).   Of the more than 100 papers submitted, the following dozen presenters were chosen.  [Commentators appear in brackets; I've shortened some paper titles.]  

 The workshop will take place at GW on April 1 and 2, 2011.  We are delighted by the submissions, congratulate those chosen, and stress that making the selections was difficult because of the volume of amazing papers.  We encourage everyone interested to attend and look forward to the weekend.

Adam Leviton (Georgetown), In Defense of Bailouts [George Geis (Virginia) & Art Wilmarth (GW)]

Jodie Kirshner (Cambridge), A Transatlantic Perspective on Regional Dynamics and Societa Eurpoea [Francesca Bignami (GW) & Theresa Gabaldon (GW)]

Alan White (Valparaiso), Welfare Economics and Regulation of Small-Loan Credit: Lessons from Microlending in Developing Nations [Michael Pagano (Villanova) & Lawrence Mitchell (GW)]

Nicola Sharpe (Illinois), Corporate Board Performance and Organizational Strategy [Deborah Demott (Duke) & Michael Abramowicz (GW)]

Julie Hill (Houston), The Rise of Ad Hoc Bank Capital Requirements [Anna Gelpern (American) & John Buchman (E*Trade Bank & GW Adjunct)]

Michael Simkovic (Seton Hall), The Effects of Ownership and Stock Liquidity on the Timing of Repurchase Transactions [Richard Booth (Villanova) & Henry Butler (Mason)]

Michelle Harner (Maryland), Activist Distressed Debtors [Donna Nagy (Indiana Bloomington) & Lisa Fairfax (GW)]

Saule Omarova (UNC), The Federal Reserve Board’s Use of Exemptive Power [Patricia McCoy (Connecticut) & Arthur Wilmarth (GW)]

Heather Hughes (American), Suburban Sprawl, Finance Law and Environmental Harm [Scott Kieff (GW) & Lawrence Cunningham (GW)]

Robert Jackson (Columbia), Private Equity and Executive Compensation [Norman Veasey (Weil Gotshal) & William Bratton (Penn)]

Brian Quinn (BC), Putting Your Money Where Your Mouth Is: Post Closing Price Adjustments in Merger Agreements? [Gordon Smith (BYU) & John Pollack (Schulte Roth)]

Mehrsa Baradaran (BYU), Reconsidering Wal-Mart’s Bank [Heidi Schooner (Catholic) & Renee Jones (BC)]

This is one of many events sponsored by GW’s Center for Law, Economics and Finance.

0

Georgetown Law Journal, Issue 99.2 (January 2011)

GLJ-logo.jpg

Articles

How International Financial Law Works (and How It Doesn’t)

Chris Brummer

The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment

Kurt T. Lash

In Defense of Bailouts

Adam J. Levitin

Explaining Plurality Decisions

James F. Spriggs II & David R. Stras

Notes

The Barracuda Lacuna: Music, Political Campaigns, and the First Amendment

Sarah Schacter

Don’t Tell Mom the Babysitter’s Dead: Arguments for a Federal Parent–Child Privilege and a Proposal To Amend Article V

Catherine Chiantella Stern

Masters of Their Own Eminent Domain: The Case for a Reliance Interest Associated with Economic Development Takings

David S. Yellin