The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Oona Hathaway has a very interesting thread on this year's law review submission process. Like Will, I think the current student-run law review system is pretty good. If we're in the market for reforms, though, we should look for changes that (1) reduce the burden on student editors, while (2) preserving the information added by journal placements, and (3) if possible, preserving the information otherwise added by expedite requests.
One possible answer: accepting journals should impose stricter limits on the number of expedites, and somewhat looser limits on the time for considering expedites.
Contra some of the Twitter commentary, it's good that there's a hierarchy of journals. Life is short, and one can only read so much. A better journal placement is on average a useful signal of article quality, compared to the other indicators one might use to make the cut (author names, titles, catchy abstracts unreflective of the piece as a whole, …).
And it's good that there are expedites. Especially as one moves up the rankings, interest from other journals is a useful signal too. Yes, there's a danger of cross-institution groupthink, but there's also a benefit from pulling well-liked articles out of a very large pile. The more overworked the student editors are, the less compelling "just read all the pieces more carefully" becomes.
But the current system, of multiple submission and fast-moving expedites, overwhelms student editors too. So can we get the benefits without the costs?
Imagine that journals were to broadly adopt a no-expedite rule, displaying it prominently (and securing explicit consent) during the submission process. By submitting an article, you'd legally commit to accepting the first law-review offer you're given, and to withdrawing your article from every other such journal within a set time.
(This could be enforced through various kinds of partially exclusive IP licensing. It might entail posting the author contract publicly, but that itself might be a benefit! And it could also be enforced technologically: once a journal told Scholastica about the acceptance, the piece could be auto-withdrawn everywhere else.)
In that world, authors would slow down their pace of submissions, hesitating to submit too far down their list for fear of an immediate acceptance. Blast-submissions might still happen, but every time a blast-submitted article were accepted somewhere, the auto-withdrawals would shrink the pile everywhere else.
Each journal would get more time to read each submission, allowing for better consideration without really delaying the publication calendar (which is mercifully quick in law, at least as compared to other disciplines). Information from placements would still be preserved, as reflected in authors' judgments of where to submit. Those market signals would be more muted, though, as they'd rely on the authors' decisions of when to submit and where, and authors might have inaccurate expectations (or be unsure how best to work the system, etc).
If that's too far a stretch, suppose that everyone limited the number of expedites to some small but nonzero number—say, three. Suppose that, on receiving an offer, an author committed to accepting that offer OR to naming, within a set time, a maximum of three journals for expedite requests. (This, too, could be enforced by licensing and/or by the submission system.)
The three journal names could be provided quickly, but the consideration by the three journals could be slower. Accepting journals could afford to wait a little longer than they currently do, as three named expedites are less likely to lose them the piece than the unlimited expedites under the current system.
Again, because the authors get to choose where to submit (and where to expedite), information from placements is preserved. And having a small number of expedites might allow for more accurate market signals than a no-expedite rule, without overwhelming everyone else up the chain.
There wouldn't be quite as much market information as in the unlimited-expedite system, and and authors (including me) would surely stress more about which three journals to name as expedites. And journals' failure to tell authors when their pieces have been silently rejected would be a real problem for choosing expedite venues.
But under the current system, the student editors' workload might be so high as to trade off with the quality of consideration, and also to distract them from sending rejection notices. If so, the reform's potential downsides might be worth it.
Note that this system, once it catches on, might also have some staying power. The top-end journals once tried to guarantee long expedite windows, something that's harder to do for the mid-ranked journals that compete against them. Each journal has a strong incentive to give narrower windows, so it's hard for a long-window norm to catch on.
But requiring immediate acceptance generally acts in an individual journal's favor. Not many people will turn down YLJ, and even fewer would refuse to submit there so as to preserve their right to turn them down. So if a few journals at the top start restricting expedites, each next tier down might find it easier to jump on board, and they likely wouldn't lose many submissions as a result.
I imagine this would eventually shake out with a few journals at the top allowing some expedites (in name more than in reality), the next rung of journals (the kind with 2-hour expedite windows) requiring immediate acceptance, and then the rungs after that permitting whatever becomes the standard number of expedites.
And I don't think this system, once in place, would easily unzip. Maybe student editors at lower-ranking journals would offer more expedites as a marketing move ("Submit here! We'll let you try again elsewhere!"), but it seems unlikely.
So a move to limit expedites could be reasonably durable, and it might be a good way to reform the system overall.