Making the Law Review Submission Process Less Terrible

The Spring submission cycle for law reviews is well underway (and over for some), and has prompted a familiar series of complaints about the academic legal publishing process. Many of these complaints raise concerns dating back decades. Yet the submission process remains largely unchanged. To an extent, this is because a great deal of criticism targets well-established, fundamental aspects of the system without a view to the practicalities of changing these aspects. 

For example, while there may be benefits from switching from student-edited journals to journals edited by faculty, this would be such a dramatic change to the world of academic legal publishing that it is unlikely to occur. Practical considerations that often fall by the wayside for critics making this particular argument include: how will faculty find the time to add editing law reviews to their current workloads? If students are to still maintain some editorial role, or cite-checking responsibilities, will they still be incentivized to do so absent the ability to select the scholarship that is published? What would this system mean for the cite-checking progress, in which all citations are subjected to multiple levels of review to ensure accuracy?

Here, I offer some thoughts on simple steps to improve the law review publication process. While these ideas aren't going to transform the publication process into a delight for everyone, they are meant to be steps in the right direction. My primary consideration is whether these proposals are easy to implement by the relevant actors and whether they lead to at least some incremental improvement to the publishing process.

By way of background (you can skip this paragraph if you're familiar with the law review publishing process), law journals are almost all student-edited. Students select articles to publish, edit the text of the article, and undertake a rigorous cite-checking process in which they locate all sources cited by the article, ensure that all citations are accurate, and revise the footnotes so that they comply with the numerous formatting rules of the "Bluebook," which governs the form of legal citations. Law reviews typically review and select articles in two seasons: the Spring season, which lasts from February to March, and the Summer season, which lasts from August to September. These are rough approximations--some law reviews accept submissions earlier, some later. Submissions are almost all sent using Scholastica, a third party platform. Authors upload their articles, as well as copies of their CV and, sometimes, cover letters describing each article. Once uploaded, authors may then send their articles to as many law reviews as they wish, although there is a $6.50 fee for each submission. Unlike in other academic publishing contexts, there is generally no expectation that submissions are exclusive. Indeed, once an offer to publish is received, authors have the option to "expedite" their submission to other journals by sending an alert that they have received a publication offer and have until a certain deadline to respond. This may prompt other journals to prioritize the submission above others, as there is now a deadline to accept, and as another article has apparently found the submission worthy of publication. Unsurprisingly, this leads to journals being inundated with submissions. Editors with less-prestigious journals have trouble filling their volumes, as many offers they extend end up being expedited to other publications. Anthony Kreis details this process, and its many problems, in his concise essay, "Picking Spinach."

With that, here are some modest proposals for making the law review process just a bit more bearable for all involved. As I noted at the top of this post, I don't pretend that these proposals will solve all problems with academic legal publishing. Normally, I'd say that further discussion is warranted on what systemic changes could improve the publishing process for all. But that discussion has been happening for nearly a hundred years now, with little meaningful progress. Perhaps there is hope, but for now, incremental changes that make the system a bit better ought to be a larger part of the conversation.

• More Anonymous Submissions. More journals should employ an anonymous review process, in which the author's name, employer, and other identifying information is hidden from the journal. Many law journals have implemented anonymous submissions procedures already, including several leading publications. Detractors claim that such an approach can be circumvented, as enough investigation may reveal clues to the author's identity. These critiques miss the mark, as anonymous submissions are meant to prevent using an author's name and pedigree as a shortcut for selecting or prioritizing an article rather than its content. The depth of investigation required to uncover an author's identity is likely greater than the effort needed to evaluate whether it is worthy of publication, and certainly far greater than simply reading the name of an author and their employer and concluding that an article should get priority as a result. Time-pressured editors will therefore be more likely to focus on the article's merits rather than do detective work to determine the author's identity.
• Scholastica Should Identify ALL Law Reviews Requiring Anonymous Submissions. Scholastica claims that they have recently implemented a change that flags law journals requiring anonymous submissions. While I certainly saw several journals with this designation in the most recent submission cycle, these designations were not exhaustive, missing multiple journals that required anonymized, or partially anonymized, submissions. For example, the NYU Law Review requires anonymous submissions, but Scholastica has not yet added a designation indicating this. If Scholastica is going to claim to flag all journals that require anonymous submissions, it should do so.
• Journals Not Accepting Submissions Should Close Themselves on Scholastica. Journals have the option of listing themselves as closed to submissions on Scholastica, which makes it impossible for authors to submit articles to them. Many journals do this after they have completed their review of articles during a submission season. I suspect that many journals that are no longer reviewing new submissions often fail to list their journal as "Closed" on Scholastica, which may give authors the impression that the article is still open to submissions. This is a waste of authors' time and money, and will likely clutter the inboxes of law journals. The simple step of closing a journal to submissions will fix this.
• Journals Should Update Their Submission Guidelines. Journals typically post a set of submission guidelines on Scholastica, indicating when they will review articles, formatting guidelines, anonymity policies, and other preferences they have. Many of these guidelines, however, are clearly out of date, with journals proudly announcing that they began accepting submissions for this season starting on March 1, 2019. This suggests that the rest of the guidelines may be out of date, and adds further mystery to whether the journal is indeed accepting submissions.
• Journals Should Say Whether They Refuse Student Submissions. Many journals have a blanket policy of refusing submissions from students at other law schools. These policies are, in general, misguided. But reforming them is the type of far-reaching, ambitious reform that is unlikely to catch on. Instead, my modest suggestion is that if law journals will not accept submissions from students at other schools, they should clearly say so and, if possible, prevent students at other schools from submitting articles to them via Scholastica. This would save authors' and student editors' time, and would allow student authors to prioritize submissions to the more enlightened journals that are open to all types of authors.
• Eliminate Formatting Guidelines at the Submission Stage. This may be getting into the realm of proposals that are too bold, but journals should refrain from requiring particular formats, such as fonts, double-spacing, and related requirements (although requiring footnotes, rather than endnotes, may be an exception to this proposal). Journals requiring different types of formatting may result in authors needing to prepare multiple sets of submissions for the same article, which can lead to confusion in tracking and expediting articles. Many, if not most, submissions are sent as Word documents, which journals can easily reformat themselves if it aids in their review. To the extent that a journal prefers a particular font or finds that double spacing aids in the editing process, these are all requirements that a final draft submission can meet after acceptance for publication. 
• Scholastica Should Change Submission Pricing, Or At Least Waive or Reduce Fees for Certain Authors. Very little criticism of the publication process mentions the price that Scholastica charges for submissions. I suspect this is because most law schools subsidize the submissions of their professors (an assumption I am making based on my prior experience, as well as the replies I am seeing to this tweet). This allows Scholastica to continue charging its submission fees without seeing a drop in use. It also means that professors, who are often the most outspoken about law review reforms, don't bear the burden of paying for their submissions, resulting in the issue seeming to be a lower priority. But for those outside of the academy--particularly those working in government, nonprofit organizations, or as clerks--Scholastica's pricing may be prohibitive. At the very least, it makes it difficult to compete with professors who may operate with effectively unlimited submissions. Timothy Lau is one of the very few commentators who has flagged the problem of submission pricing in his article, "A Law and Economics Critique of the Law Review System."  He proposes a graduated pricing scheme, where in which the first 10 submissions cost $4.00 each to submit, the next 10, $5.00, and so forth, capping out at $13.00 for the 100th submission and onwards. To an extent this would make it easier for non-academics to submit--at least as far as their initial submissions are concerned. It would also, in theory, reduce what Lau describes as "saturation submission," in which large numbers of submissions overwhelm law reviews. This approach has its drawbacks. For one, the particular graduated pricing scheme Lau proposes would likely be too burdensome for nonacademic publishers who aren't making biglaw money. Moreover, if law schools continue to subsidize submissions, pricing changes would not impact author behavior. Instead, Scholastica should consider reduced pricing for those who are not associated with a law school, or a allowing a certain number of free submissions for these authors, which would reduce the burden of submission, and help these authors better compete with those in academia. Since the bulk of submissions will likely continue to come from professors, the cost of this reform should be low.
• More People Should Call Out Submission Pricing. As a follow up to the previous proposal, I want to emphasize that Scholastica's submission fees should be part of the discussion of law review submissions and reforms. It is barely mentioned, but the high price of numerous submissions, coupled with law schools subsidizing submissions, places nonacademic authors--and particularly those working in government or public interest--at an economic disadvantage. 
• Law Journals Should Reject All Pending Articles Once Their Volumes Are Full. For me, both this submission season, and last submission season, were strangely quiet. Many journals to which I submitted never responded in any way. As for the rejections I received, many indicated that the journal had filled its volume and was no longer reviewing any submissions--which suggested to me that my submission had not been reviewed before rejection. Still, that latter approach is preferable to no update at all. If journals have filled their volumes, they should send out an automatic notification to those whose submissions are still pending that those submissions will not be published. Widespread, uniform adoption of this approach would give authors a better idea of the landscape of what journals are still open, and inform decisions on where to expedite and whether further submissions are warranted.

Perhaps some of these suggestions (particularly the Scholastica pricing ones) are too ambitious. But if Scholastica and law reviews adopt some or all of these suggestions, it would make the publication process a bit easier for everyone. Problems remain, but at least they'd be a little less terrible.

Forthcoming Article on Distracted Walking

Since 2017, I have been fascinated by laws prohibiting "distracted walking," which is most typically defined as walking across the street while using a phone or electronic device. I've blogged about ordinances and proposed laws banning this practice repeatedly, starting with Honolulu's ban in 2017 and other states' and cities' ordinances and proposed legislation here, here, and here.

Those readers interested in a longer treatment of the subject should check out my forthcoming article, "Distracted Walking," forthcoming in the Penn State Law Review. You can find the current draft here. Here's the abstract:

Throughout the United States and across the world, cities are enacting bans on “distracted walking.” These bans target cell phone users who cross the street while using a telephone. Doing so in certain cities may result in a fine, community service, or even jail. Drawing inspiration from municipalities, lawmakers in several states have proposed similar statewide legislation. Pushback against these measures is rare—as many people have either directly, or indirectly, experienced the slow and oblivious behavior of “smartphone zombies.”

This Article surveys these laws and demonstrates that the science is, at best, mixed on whether device usage results in distraction significant enough to put pedestrians at risk. Studies of pedestrian deaths and injuries suggest that pedestrian distraction plays a minimal role in pedestrian injuries. And those who are most at risk of serious death or injury—elderly pedestrians—are barely mentioned in debates over distracted walking bans. This Article argues that these distracted walking prohibitions are not only poor traffic policy, but also exemplify a trend of blaming pedestrians for deaths and injuries caused by drivers. What’s more, by criminalizing common behavior, these bans create a further opportunity for selective enforcement by the police. Those most likely to suffer the penalties from distracted walking prohibitions are racial minorities and others living in areas deemed “high crime.” Distracted walking bans therefore contribute to selective enforcement of criminal law and burden the most disadvantaged members of society with additional fines and penalties.

Distracted walking bans have never been addressed in academic legal scholarship. They are barely examined or criticized when they are proposed—instead attracting widespread media attention for their quirkiness. But odd little crimes like these can have significant negative impacts on people’s lives, fail to help those who they are meant to aid, and implicate wider systemic injustices in the legal system. It is therefore worthwhile to examine these overlooked laws more closely, consider less burdensome and more effective alternatives, and realize that perhaps many other similar, neglected infractions are deserving of similar critique and attention.

Comments and feedback are welcome! The article is on a pretty fast schedule to publication, though, so if any feedback is to be incorporated, you'd better let me know soon.