Category: Law School (Law Reviews)


Against Scholastica

Like many of you, I’ve an article out in the Spring submission season. (More on that in a separate post later.) Let the agonizing begin! Seriously, where’s the thread?

This year, in addition to ExpressO, email, website submission, Redyip, and printed copies, we’ve a new way to deliver our articles to their ultimate masters: Scholastica. You may have learned about Scholastica when your favorite law review wrote you to inform you that they were exclusively taking submissions through that system, or when your associate dean told you that the institution would prefer not to pay pay more per submission than ExpressO for a substantially similar service.

Here are some key things you might not know:

  1. As far as I can tell only two of the top fifty journals – NYU and Iowa – are exclusive to Scholastica. “Exclusive” for other journals appears to mean “we’d prefer.”
  2. Scholastica is very  hostile to the currently way that legal scholarship is selected — they push double-blind peer review and don’t very much like student editing. This isn’t surprising, because as far as I can tell, none of the developers went to law school, served on a law review, or writes for legal audiences. They are, respectively, a sociology graduate student, a former historian, and a political scientist. There are many things one could say in defense of our current multiple-submission, student-selection, system. None appear on the Scholastica page.
  3. Scholastica asks for your sexual orientation and other demographic information (include a free-form place to talk about “additional comments that demonstrate diversity”) and then provides that information to each submitting journals that request it. Apparently the theory is that journals will want to take identity politics into account when making selection decisions. [For more, see blackman’s post on this topic, which I hadn’t seen before writing this.]
  4. Did I mention that Scholastica is more expensive that ExpressO and infinitely more expensive than emailing the journal directly?

I think Scholastica might be a good deal for journals – it takes care of publishing problems, and it will significantly reduce the flow of submissions. I can also see why graduate students from other disciplines would find our tiny corner of the world to be odd.  But I don’t see why anyone would ever submit through their system unless absolutely forced to, especially when they appear determined to import some unattractive aspects of other disciplines into legal academic publishing, which is already quite ugly.

What I don’t particularly understand is why faculty of the institutions running law reviews which are now exclusive to Scholastica are permitting this radical turn, which almost certainly will result in more concentration of prestige publication in the hands of prestige authors (who have the money to pay for multiple submissions at $5.00 each).  Er.  Reading that sentence again, I guess I understand after all.

That all said, Scholastica, please don’t lose my submission to NYU! I’ve never even gotten a rejection from those folks – maybe this year you can gin one up?


Recalling Cardozo Law Review’s “Bork Book”

I never knew Robert H. Bork (1927-2012) but as a rising 3L and law review editor at Cardozo in the summer of 1987, my classmates and I met his intellectual heft and political salience. Just after President Ronald Reagan announced his nomination of Bork to be Associate Justice of the Supreme Court in late July, it was obvious that the country was headed for a passionate debate on justice writ large (e.g., abortion, antitrust, civil rights, free speech, you name it).

Sensing an opportunity to discipline the discourse, we decided to collect and publish a dozen essays and four reports assessing Judge Bork’s jurisprudence from every angle. Well-advised throughout by our professors, David Rudenstine and Monroe Price, we solicited extant or original pieces by such luminaries as Ronald Dworkin, Steve Gillers, Mary Ann Glendon and Michael McConnell, as well as reports of the White House, Public Citizen, a research group commissioned by the Senate Judiciary Committee (led by Christopher Schroeder and approved by Floyd Abrams, Clark Clifford, Walter Dellinger and Laurence Tribe) and a DOJ response thereto.

Fifty of us, new 2L staff and 3L editors, spent an intense two weeks collating and editing the contributions. Then four of us (Jim Nobile, Allen Applbaum, Jeff Stamler and me) flew to Lincoln, Nebraska, site of the leading printer of law reviews, Joe Christensen Inc.  We spent several more days and sleepless nights scrutinizing the page proofs before giving the print order. After 10,000 copies were printed, Jeff and I flew back to New York while Jim and Allen drove a rented U-Haul to Washington D.C. where the town was abuzz with debate and Senate hearings would shortly begin.

Meanwhile, back in the nation’s capital, another classmate, Barbara Braucher (who later married U.S. Attorney General Ted Olson and still later perished aboard one of the hijacked airplanes on 9/11) had been making her rounds in the Senate, where Barbara had many connections. She alerted members of the Senate Judiciary Committee, including its chairman Joe Biden, that our law review issue, addressing every important topic and viewpoint in a compact 530 pages under a single two-inch spine, was on its way.

Upon their arrival in Washington, Jim and Allen toted several boxes directly to the awaiting Senators. Standing on the steps of the Capitol when delivering the books, the New York Times interviewed our classmates about this effort.  The story (here) ran the next day, along with a cute quote from Allen and a photo of the group.

The special issue, released in early October ahead of the hearings, sold briskly at many book shops around Washington and New York that fall.  It was clear during the hearings that many Senators had read our product.  In the years after, it was even clearer that Judge Bork had, as he cited to our “Bork book” often.  The issue was volume 9, no. 1 and was a great start to our third year of law school and one of many innovative academic undertakings for which the Cardozo Law Review became known over ensuing decades.


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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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:


  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….


  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?


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.


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.


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.


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.


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!


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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