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The Bizarro World of Law Reviews

Legal scholarly publishing is full of natural experiments in scholarly communication. (2,685 words / June 27, 2024)

Published onJun 27, 2024
The Bizarro World of Law Reviews
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Close your eyes, snap your fingers, and imagine the slate is wiped clean.

The opportunity to build scholarly publishing from the ground up is here.

Imagine an academic publishing universe in which the majority of journal titles are owned and run by institutions, where early career researchers—students, no less—are the gatekeepers and women are in charge of the most prestigious and renowned titles. Publish, review, curate? No problem: preprinting is normal. And when it comes time to publish, single journal submission is a bygone artifact. The perverse incentives and inequalities that come with high-cost open access charges for accepted authors are absent, replaced with low-cost submission fees.

Seems fanciful?

Well, it’s all happening in the bizarro world of academic law reviews. And it’s not utopian or dystopian. It’s simply different.

Alexandra J. Roberts celebrated the delivery of print copies containing her trademark article.

Why explore this topic? For one, it can be a profitable enterprise for those interested in contemporary scholarly publishing to pay attention to how law literature operates (like scite’s founder, inspired by Shepard’s Citations). It’s full of natural experiments for those who spend most of their time with stem, social sciences, and humanities publishing. But as advanced as law reviews may seem due to some superficial practices, they remain just as messily human and political as any other publishing arena.

For now, if it pleases the court, allow me to present six pieces of evidence to back up my allegations against law reviews, starting with…

Owned and Run by Institutions (Exhibit 1/6)

Glancing at Wikipedia’s list of law reviews in the United States, you might notice many of the titles are named institutions of higher education. Most law reviews are indeed hosted by the academy. If you are willing to include ‘academies’ into the category of ‘community’, then look no further than law reviews for community-led and community-owned academic publishing.

It’s not always the case that community involvement will lead to content without financial barriers, but this happens often for law reviews. Visit the University of Oregon blog Meta-Ranking of Flagship US Law Reviews for 2023 and click around the websites of the top ten titles. You will have no trouble freely reading the most recent articles, albeit without CC licenses.

So while top law reviews appear to be free to read, the involvement of ‘community’ is not a panacea for all of the ills of scholarly publishing. As a prime example, community does not mitigate problems of prestige and exclusivity. Law reviews may be owned and run by schools, but these are not just any schools; they are law schools. Law schools tend to strive for ‘elite’ reputations. Law schools able support a top law review have likely succeeded on this front.

We should also remember that institutional-ownership also means journals exist at the pleasure of the host institution (see: Columbia Law Review.)

Both legal and scientific publishing have prestige hierarchies. Prestige in scientific publishing is sometimes dressed up with more highfalutin terms like impactful, reputable, trusted, and rigorous, whereas the veneer is much thinner in legal scholarship. Name brand associations of law reviews are just as openly discussed as the name brand associations of the law schools themselves. The game is acknowledged without shame leaving fewer neuroses at play.

“Early Career” Members As Gatekeepers (Exhibit 2/6)

Graduate students and postdocs in scientific fields reportedly ghostwrite peer-reviews for senior colleagues without credit. In law reviews, students openly serve as judge, jury, and executioner. Or, at least, they make up the editorial boards.

Law review staff membership can be “highly sought after by some law students, as it often has a significant impact on their subsequent careers as attorneys.” But per one Reddit thread, your mileage may vary.

Law faculty and practitioners are the usual authors of papers in law reviews, though there are sometimes student notes published, but students serve as editors, flipping the usual power structures many of us are familiar with, in which much more senior members perform the gatekeeping. Maybe flipped is not exactly right, since the submitting authors may have unspoken bargaining chips at their disposal, such as grade assignments or job references, but there does seem to be more parity between senior and junior members.

Some argue that student-edited law reviews should be replaced with peer-reviewed journals since the “power afforded to law-review students – especially those at the top 20 schools in the U. S. News ranking – is quite excessive.” A study from 2007 found that a majority of law review editors took into account schools where an author taught, including the ranking and reputation of those schools. Hate the game, not the player, I suppose.

Women In Charge (Exhibit 3/6)

Speaking of top institutions, in 2020 “every journal at the flagship law review of the top 16 law schools” were led by a female Editor-in-Chief for the first time. While there were plenty of late-aughts/early-twenties examples of women leadership installations that were glass cliff sort of situations, legal academic scholarship is still used and impactful, including SCOTUS citations and paradigm-shifting papers that lead to major federal roles.

One study found that 1-in-13 federal court of appeal decisions from 1950-2008 cited at least one law review or law journal article. Justice Thomas had by far the most law review cites, whereas Chief Justice John Roberts had cited law reviews the least. Roberts has noted he does not pay attention to them or find them particularly useful.

Farrah Bara, EiC at the Duke Law Journal, coordinated with other top law EiC women to write a joint publication (Women & Law) featuring “180 pages of astute historical and legal analysis and raw personal reflection on what it means to be a woman in law today” (Forbes).

With a few years of bibliographic data now available, there is an opportunity for journalogists to analyze effects of having women EiCs at the helm of top reviews.

Publish, Review, Curate (Exhibit 4/6)

A smoothed-down definition of the publish, review, curate model (which will allow for a more facile comparison) would go something like this: authors post their works to be freely read, and once posted and available, curation efforts take place to help readers, including but not limited to peer-reviewed journal publication. Before I was aware of the idea of PRC, I would sometimes witness something similar happening.

Around 2017-18, when I was in the midst of the tenure-track hustle, struggling to publish, I would sometimes witness something that caused me great jealousy and confusion. I would be scrolling twitter and would come across legal scholar Brian Frye tweeting a link to one of his preprints on SSRN, magnanimously offering to accept the first publication offer that a journal made. Often these papers were accepted in no time.

Incredible flex, to be sure, but there is more nuance here than I first suspected. First of all, no, not every legal scholar can pull this trick; Frye has over 16k followers and is the 38th most downloaded law scholar on SSRN. But on a systems level, there is a bit of a publish, then curate model at play in the world of law review publishing.

“Many legal scholars use online repositories for their pre-published drafts and published work” on places like SSRN’s Legal Scholarship Network which, at the time of this writing in June 2024, claims to have 369,150 papers from 163,360 authors.

Multiple Submissions (Exhibit 5/6)

Many of you are accustomed to the idea that it is not ‘ethical’ to submit a paper to more than one paper at a time. It can be a waste of a journal’s precious resources to invest time and treasure into a paper, only for the author to withdraw somewhere along the process because another journal accepted them. With this perspective in mind, you may think Scholastica made a typo in their blogpost with submission tips for authors:

Next, you’ll need to decide which law reviews you want to target.

Law reviews, plural? Yes.

Law review submissions may feel like a numbers game at times. But, in truth, it really is about quality over quantity, so you should be selective when making a list of law reviews to send your paper to and narrow down the ones that are likely to be the best fit for your particular article and publication goals.

While the single journal submission authors is the norm in the sciences, social sciences, and humanities, it has been known to cause stress due to the risk of time loss for papers that may need to be submitted to a second journal after a lengthy submission period to a first journal.

Legal scholars often submit to multiple journals all at once. And once having received an offer by one journal, authors may begin a delicate dance of parleying that initial offer to expedite review by a more desired journal. Publishers reading this may be like, what, that sounds like a nightmare. Maybe so, but for whatever reason, freaks in law scholarship like it.

There are year-round submissions, but a lot of this happens during one of two submission seasons, usually kicked off on the first day of February and August.

As a heavy publisher of digital-first journals in legal studies, Scholastica offers several guides for authors. If you choose to use the Scholastica system to submit a new manuscript to The Law Review Group Submission Pool, you will face a process that is much more straight-forward compared with a journal cascade system.

After entering the title of your paper, you can then choose to submit to any number of the 732 law journals published by Scholastica that use the Scholastica Law Review System to process submissions and manage article selection (corrected 7/12/24).

You can narrow down to their 43 Environmental law journals and with a single click add them all to your cart. Your cart? More on this in the next exhibit.

Low-Cost Fees for All Submissions (Exhibit 6/6)

Finally, as discussed above, there is a fair amount of digital legal scholarship that can be accessed freely without subscription. To my knowledge, there are not open access fees for legal scholarship. That’s not to say that money is not flowing in different directions.

For a long time, publishing folks have debated submission charges. With rates that can run anywhere from $35 to $125, it is up for debate if these are “generally considered poor practice.” Arguments for submission fees is that a lot of smaller fees is more equitable, efficient, and/or ethical than large fees from accepted authors. They remove the financial incentive for journals to mass publish. It may help make sure that submitting authors are serious. And double- or triple-digit fees are just better than quadruple- or quintuple-digit fees for authors from a wide range of economic backgrounds.

But what if you logged into a single system and picked as many journals as you wanted and were charged a flat rate of somewhere between $2 and $5? That’s the question that legal scholarship asks and begins to answer.

In my test of the Scholastica publishing system, I selected 35 titles to submit my paper (random PDF on my desktop, apologies to staff if this went through!) to. The final step in the submission process is an area to enter credit card information to pay the total submission fee of $231.00. This amount, divided by 35 titles, makes for an average individual fee of $6.60.

Six bucks is much cheaper than the $125 that AJE charges and is, thus, a more financially attractive option (not that AJE would publish your law paper). The difference in price for law journals and science journals may come down to costs-per-unit. There are simply more scientific manuscripts than legal ones, and the cost to vet the larger amount of papers may be higher.

If you are an author at a subscribing institution, these fees may even be covered. (Should we add “submit-and-affiliate” to the “read-and-publish”/”publish-and-read” taxonomy?) Once you or your institution pays Scholastica or a similar system like Expresso for your submissions, where those funds go next is fuzzy to me. (I will update if I learn more. Update 7/10/24: see end of article; I have learned more.)

It should also be noted that you probably won’t find large flagship journals through these systems, but rather authors will submit (and potentially pay) on those journal’s individual websites.

Conclusion

That concludes my exhibition of evidence about the bizarro world of law reviews and journals. This publication system performs actions that nominally fit the description of initiatives that some would like to see (or see more of) in other publishing fields. Understanding how these familiarly-understood mechanisms play out in the slightly alien terrain of legal scholarship can prime our intuition pumps about the limits and potential of wider adoption.

In closing, I must acknowledge the intellectual debt I owe to Georgetown Law’s Brian Galle whose 2016 post The Law Review Submission Process: A Guide for (and by) the Perplexed provided invaluable background reading for this article. If my post was of interest, I highly recommend you check out Galle’s. Galle discusses norms, strategy, and etiquette of “the game”; quality, rankings, and reputation; the efficacy of colons in titles; and more.

Additional hat tip to librarian and pal Rachel Fleming for bringing Galle’s post to my attention.

Addendum

7/10/24 update: As noted, I was fuzzy on where funds go once an individual or institution pays pays Scholastica (or a similar system) for a paper submission. I had reach out to Scholastica on July 27 when my two contacts there were on vacation.

In my message, I wrote that “One area I was unsure about was where those submission fees go? Is there any public documentation you can point me to, or is there info you can share with me that you wouldn't mind me posting? What do law journal agreements generally look like on Scholastica (e.g. which way does money flow)?”

I heard back from Danielle Padula yesterday who wrote the following:

Regarding your question, the $6.60 per submission fee for the Scholastica law review pool is a manuscript processing charge that goes to Scholastica to cover the cost for law authors and editors to use our Law Review System and services, including Scholastica's law review submission portal/article selection software, analytics suite, and unlimited customer support (pricing and product info available here). Any law journal can use the Scholastica Law Review System for $6.60 per submission (no other costs). Journals may, of course, opt to use alternative software or manage submissions via email. In law review publishing, submission processing fees are generally subsidized by authors' legal institutions. Scholastica also offers fee waivers for low and middle-income authors.

 
There are some law journals that operate like academic journals in other disciplines and follow a standard peer-review process. For that type of workflow, journals generally use the Scholastica Peer Review System, which has separate pricing listed here. In that case, the journal editors/their institution may choose to establish their own author-facing fees to cover operational costs (e.g., a per-submission fee that goes directly to the journal).

On 7/12/24, Danielle also requested that it be noted that:

On a quick related side note, while Scholastica is not a publisher, we do have a Predatory Publishing Policy that all journals that wish to use our platform must comply with. We established this policy to ensure that no journals using our software or services are exhibiting exploitative behavior that could be harmful to the scholarly community.

Thanks to Danielle for her informative responses.

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Comments
2
Peter Suber:

Hi Arthur. Well-done. I’d add a few more points. First, university-based law reviews are nonprofit. Second, it’s common in law (compared to other fields) for authors to submit relatively unpolished manuscripts, which the student editors revise and improve as part of their legal education. Third, law reviews function in part as advertisements for the school and in part as educational opportunities for students. Finally, these three factors together make open access an easier decision.

Peter Suber:

Hi Arthur. Well-done. I’d add a few more points. First, university-based law reviews are nonprofit. Second, it’s common in law (compared to other fields) for authors to submit relatively unpolished manuscripts, which the student editors revise and improve as part of their legal education. Third, law reviews function in part as advertisements for the school and in part as educational opportunities for students. Finally, these three factors together make open access an easier decision.