AI Disclosures and the Presumption of Good Faith

The summer submission season is fast approaching. Some journals have jumped the gun and are opening well in advance of August 1, throwing professors' summer plans into disarray. The Virginia Law Review is one such innovator/offender.

Notably, the Virginia Law Review is requiring that authors disclose authors' "substantive" use of AI in the drafting process. They elaborate:

By “substantive,” we mean the use of AI to support an author’s factual assertions, legal claims, or overall argument, such as generating relevant cases, writing or revising textual sentences, or drafting parentheticals. The use of grammar or spelling assistance services such as Grammarly or spell-checkers is not considered “substantive.”

The law review "emphasize[s] that the use of AI is not disqualifying," but urges authors to "err on the side of disclosure." The law review reserves the right to rescind publication offers if they discover undisclosed AI usage.

In my unscientific observations of reactions to my post noting this new requirement and others' posts, I see a few concerns bubbling up. Some are (rightfully) worried that if many journals take a similar approach, it may become confusing and difficult to fill out all these disclosure forms. Virginia's, for example, was included in the submission guidelines that one can click to see on Scholastica, but it required an additional step by submitting authors to see it was there and it may be missed in the high-volume law review submission game.

Others seem worried over what level of detail detail is required in the disclosures, though the guidelines go a long way to specify what uses do not count and provide sample disclosures for authors to reference (and to emphasize that, when in doubt, more should be disclosed).

But the concern that got my attention is that authors will simply circumvent the disclosure by dishonestly claiming they did not use artificial intelligence to assist in the research or drafting of their scholarship. The disclosure is a simple Google form, and it's easy enough to state (as I did) that the author did not use AI in the process of researching and writing their scholarship (as I did not--more on why I did not here). The objection seems to be that authors could use AI to write their scholarship, make sure they've covered their tracks in the final work product, and falsely claim that no AI was used. The disclosure requirement, as a result, makes no difference.

I find this worry interesting for several reasons.

First, it seems to be at odds with a presumption that one's scholarly interlocutors are acting in good faith when advancing their claims and arguments. There have been plenty of accusations of bad faith flying around lately--particularly in the birthright citizenship space. Amidst the heated rhetoric, there have been occasional claims that the other side is acting in bad faith. They don't REALLY think that the Constitution supports their claims and are, instead, making arguments to get attention, judgeships, or sweet, sweet, Supreme Court citations. In response, those accused (and others beyond the debate) tend to object to these accusations of bad faith. The assumption that one's scholarly opponent is arguing in good faith is a crucial norm of the profession. If a substantive debate is to be had, one must treat one's opponent's arguments charitably. Accusations of bad faith circumvent genuine discourse and turn the endeavor into a shouting match.

I won't express any thoughts on the substance of this good faith debate (although I certainly have THOUGHTS). But this call to respect the motives of ones intellectual opponents isn't new, and underlies longstanding calls for charity when responding to scholarship with which one disagrees.

If scholars are operating under such a strong presumption of good faith, it puzzles me why so many assume that AI disclosure measures will be so easily and widely circumvented. Doing so involves lying to the editors. The black-and-white nature of the falsehood these critics foresee is arguably more profound than advancing arguments in bad faith--at least those arguments may still be colorable or have something in the way of merits (again, no opinions on those arguments expressed here; despite my THOUGHTS).

It seems like the longstanding presumption of good faith and charity disappears when we start to talk about AI disclosures. This raises questions over how seriously we take this presumption and whether its applications are limited. Perhaps we should assume that scholars are entirely honest in the arguments they (or their AI companions) put forth, but they're a pack of lying scoundrels when it comes to communicating with law students. I'd like to hope this is not true.

Second, expressions of concern over AI disclosure policies seem to assume there is some level of shame in using AI--or at least a perception that one will be shamed should their AI usage come to light. Avoiding shame explains why people might be willing to lie to law review editors. Folks typically don't lie without a reason. That reason might simply be the love of the game--which I respect in some contexts. But here, the motivation to circumvent disclosures seems to be the worry that one's work will be thought of as lesser because one used AI to write it.

I think this concern is perfectly reasonable. It is, after all, consistent with my own instincts. If I am given a paper to read, and I am told that AI was used to write it, I will likely question whether reading the paper is worth my time. After all, it wasn't worth the time of the author to write. 

(There are of course, rejoinders that the substance may be fine. While this back-and-forth isn't the point of this post, I'll briefly note that these rejoinders speak past my objections: my distaste is based in the disrespect the person presenting me with the piece is showing me by expecting me to take time on something a machine spit out for them. The substance is immaterial to this breach of etiquette.)

To the extent that critics assail the Virginia Law Review's demand for disclosures out of a fear of this shame, there is a glimmer of hope that AI usage might not catch on as readily as its advocates suggest. A norm of respect for each other's time and insight is central to a community of scholarship. It wasn't easy for me to make it into the legal academy, and I confess I feel dismayed to see would-be colleagues turning their time and attention over to tinker with robots and glorify their outputs rather than engage in genuine conversation and debate. If people are ashamed of AI usage, though, it suggests that people recognize the loss of community and respect that occurs when genuine work is replaced by efficiently generated output. I'm not at all certain that the fear of this loss will keep everything from devolving into a dystopia where everyone uses AI to summarize everyone else's AI-generated output. But it gives me some hope.

Third, as much as critics claim that the Virginia Law Review's policy is easy to circumvent, I don't think this is entirely correct--at least for most authors. Even if we're willing to throw presumptions of good faith out the window when debating AI disclosure policies, circumventing these policies requires lying to law review editors. Lying isn't easy for most people. Those who seek to misrepresent their level of AI use must write out and submit falsehoods to the time-pressured, overworked student editors who will be reviewing (and maybe even editing!) the submitted article. False statements may be physically easy to write and submit, but I expect that doing so over and over again may begin to take a mental toll.

Perhaps fear of this mental toll will deter would-be wrongdoers from dishonest disclosures. More pessimistically, it may at least cause them some discomfort and heartburn, which is a bit of comfort for those of us who are dissatisfied with the dystopian, automated world that seems to be forming. The true psychopaths among us will lie away with abandon, but what else is new? 

Maybe I'm wrong. Maybe the bad habits we've developed over years of playing the submissions game have caught up to us. Authors submit articles to journals in which they know they'll never publish--using the resulting acceptances as a means to an expedite. Editors respond with form rejection letters that contain no engagement or explanation of the decision. After years of enduring and perpetuating these little moments of disrespect, maybe it makes sense to expect that authors will be willing to pick up one more nasty habit in the interest of getting ahead.

I'm not sure how to respond to such a pessimistic vision other than to advocate for a different way of doing things and to act accordingly. I'm therefore in favor of Virginia's policy requiring disclosures, and I hope more law reviews take a similar approach. I'd love to see these forms integrated into Scholastica (perhaps in a manner similar to how Scholastica automatically requires anonymized submissions for journals with anonymous submission policies). I'll fill these forms out with ease as I continue to expend exponentially increasing effort to avoid generative AI in all its pernicious forms. And I'll hold out hope that others will do the same.

The Law Review Submission Process: Tips, Tricks, and Quandaries

You hear that outside? Those fireworks mean that we're already into July and the summer submission cycle is less than a month away!

For those writing legal scholarship, it's time to start polishing, revising, or (if you thrive under pressure) writing. Law journals open for their summer submission cycle around the beginning of August (though some upstarts like the Yale Law Journal open earlier). Before long, the game of submissions, expedites, and email refreshing will begin.

This post addresses the law review submission process--focusing on strategies, tips, and related debates over the best approach to securing a good placement. Unlike some of my earlier discussions of the law review submission process, I'll steer clear of whether it's good or bad (though I do think it can be less terrible with a bit of effort). Instead, this is written with the status quo in mind, and how authors can best play the game under the existing rules. 

All of this is based on my own experience--largely in the last few years of submitting. While I haven't been in academia all that long, I've written a lot during that time on a variety of subjects. This includes submission seasons when I've submitted quite a few pieces at once--giving me the opportunity to compare how articles on different topics are treated by journals during the same cycle. It's not an experience that I recommend, unless one wants to multiply the stress level of a single submission by however many articles that are out in the mix. But it's given me some insight!

When to Submit?

One endless debate among authors is when one should submit to law reviews. Should authors give up on summer submissions and wait until the Spring? Should authors submit on the first day the cycle opens, or should they wait a week or even two?

On the spring vs. summer debate, I've had decent luck with summer submissions. Those who claim that August is a hopeless time for placements exaggerate. Still, journal space is more limited in the summer, and some journals don't even open at all. Even journals that proclaim to hold robust summer submission seasons tend to accept a strong majority of articles in the spring cycle. Authors shouldn't count the summer out--but those who don't find placements in August would do well to resubmit in the spring. 

As for whether to submit on the first day of the cycle versus submitting later, there's certainly a case for submitting as soon as possible. Most journals accept submissions on a rolling basis, and once the volume is full, they're done. Journals also tend to seek some diversity in subject matter. For example, once they've accepted one or two criminal law pieces, they're unlikely to accept additional criminal law articles absent exceptional circumstances. All of this suggests that submitting sooner, rather than later, is ideal.

Yet the drawback to immediate submissions is the danger that one's piece will be lost in the shuffle of all the other authors who know this and are following the same strategy. Law review editors get hundreds, sometimes thousands, of submissions. These submissions tend to cluster around the opening of the submission season, meaning that an early submission may get buried in editors' Scholastica inboxes. Because of this, there may be an edge to submitting a week, or even two weeks, after the season opens to get to the top of the inbox.

I don't think there's a correct answer here. Some journals may divvy up all submissions as they come in and hold off on new submissions until older ones have been reviewed--removing the advantage of getting to the top of the inbox with a later submission. Other journals might not even bother to look at a piece until it's been accepted elsewhere. All of this complicates the picture. For what it's worth, if I have a piece that's ready to go on day one of the submission season, I'll usually send it out that day.

Still, it may be best to submit earlier in the summer cycle (August 1 through September) than the spring cycle (February 1 through March/early April). In the spring, most journals are opening new volumes and have more space to play with, and will therefore likely give more offers than they are filling the spots that remain in the summer. Because those submitting in the summer are competing for fewer spots in fewer volumes, getting in early may be better, as journals will likely close after a shorter period than they do in the spring.

What to Submit?

I attended a webinar hosted by the Yale Law Journal yesterday evening. Much of the advice they gave was in tension with other pointers: Submit early!--Or not! Avoid too much literature review!--But put in a good deal of effort situating your contribution in the existing literature! The mixture of platitudes and contradictions motivated me to write this post, if only to demonstrate that it's possible to say something concrete and helpful about the submission process.

I mention this because one of the big inconsistencies had to do with article polish. The editors repeatedly suggested that a piece being polished or publication-ready was less of a priority than explaining a piece's novelty or importance. And yet, the editors also advised that it would probably be worth submitting a piece a few days later in order to get the piece polished and finalized.

When submitting to journals, most authors (at least those who aren't Fancy) should treat the editorial process as a search for excuses to reject the piece. Journals have a limited number of spaces to fill (particularly in the summer), and they receive thousands of submissions. This means that an editor might seize on any number of reasons to reject a piece and call it a day. A section or two is underdeveloped? Footnotes missing or incomplete? Typos all over the place? All of this might be enough for an editor to choose any number of alternative articles instead.

An article will never be perfect. It's best to get it to the journals sooner, rather than later. Still, authors would do well to give the piece the appearance of polish before submitting. Do a few readthroughs to get rid of the obvious typos. Get all the footnotes in, or, at the very least, avoid [cite needed] or blank footnotes at all costs. The former approach is preferable to the latter, as blank or incomplete footnotes are more obvious issues than absent footnotes. As for formatting and Bluebooking, make your footnotes look good--within reason. Italicize the titles, small-caps the journals, and you're pretty much all the way there. The minutiae probably won't make much of a difference, but the article needs to at least look like it's ready to publish if one is to minimize easy opportunities to reject the piece.

Article length is also a topic of discussion--sometimes heated. Editors tend to recommend that articles fall between twenty and twenty-five thousand words. Thirty thousand is likely too much. This, of course, is often inconsistent with what top journals publish--much of which is well beyond these stated limits. But, as with article polish, exceptions to the rule are often reserved for those prestigious enough to get away with it. I tend to aim for 25K as a maximum, and 20K as a minimum. I suspect that authors can get away with submitting articles as low as 15K at most journals, though landing closer to 20K is ideal. Most articles likely don't need to be this long, but this is the game we play. And things are at least better than they used to be.

How to Submit?

A few years ago, my submission strategy consisted of submitting to the top twenty-five or so journals I hoped to place with, then sending out further waves of submissions if I didn't get any hits. Inevitably, I would end up submitting to far more than my initial, conservative set of journals before I got any offers (though I could sometimes end up with an offer from one of my top picks through the expedite process).

Why this approach? At the time, I was a practicing lawyer and had to pay for all my submissions. To be sure, submissions were cheaper then (I think it was only six dollars per submission rather than the current $6.60 or whatever it is now). I hoped that a limited set of submissions could save me money and end the process quickly if I happened to catch the attention of one of my most preferred journals.

I don't do this anymore. To start, most (but not all!) of my submission fees were covered by my institution once I entered academia. Most professors (or visiting professors and fellows) at law schools have their submission fees covered, in whole or in part. This makes it easier for authors to submit more articles to more journals.

More importantly, though, I got the sense that many journals--particularly those that are more highly ranked--tend to prioritize those articles that already have an offer elsewhere. These journals get so many submissions that the expedite process becomes a virtual prerequisite for an editor to consider the piece, as this brings down the number of submissions to a manageable amount (and those submissions have deadlines by which they must be reviewed). Indeed, this is how things tended to go when I was on law review. The bulk of submissions I reviewed had pending offers, though each of us on the Articles board were required to look at several pieces each week that had not been accepted elsewhere.

If journals (particularly top journals) won't bother to give a piece a read until it's got an offer somewhere else, submitting only to those top journals early in the process is a near-guarantee that the piece won't get reviewed. Maybe you'll get lucky (or maybe you'll make your own luck through institutional prestige and name recognition). But for the rest of us unlucky folks, I think the best strategy is to at least submit to a range of journals right off the bat--preferably a fairly large number of journals if doing so is financially feasible. Doing so increases the chance of a relatively early initial offer and generates the urgency of a deadline for other journals that might not even otherwise look at the piece.

Dealing with Silence

Every submission cycle, I see at least one law professor post about how editors are far more silent than they've been in years past. I'm convinced that this isn't actually the case. Folks tend to recall prior submission seasons through a post-offer and publication lens. From this perspective, the endless days of unresponsiveness fade away and are overshadowed by the triumph of the offer and the stressful chaos of the expedite process. 

I've submitted a lot of pieces in the last few years. I also submitted a flurry of articles over a decade ago when I was just out of law school and before legal practice attempted to stifle my scholarly inclinations. From this admittedly anecdotal perspective: it's always been this bad! Silence is consistently the most common response to my scholarship, and I haven't noticed any increased lack of responsiveness as the years go by.

Even so, law journals' failure to respond in any way to submissions tends to hit me as more demoralizing than rejections. A rejection at least means that someone's looked at the piece and taken the time to consider it at some level. Silence is mysterious, agonizing, and infuriating. The silver lining? Rejections are preferable to nothing--so cherish each one!

Here's a trick that I recommend to folks whose pieces have been met with silence--particularly a prolonged silence after a few initial rejections. After about three weeks, use the "start a conversation" option in Scholastica to send a mass message to all journals where your piece is still pending. Notify them that the piece is still available, give a BRIEF summary of the contribution, and invite any questions the editors have. I've done this several times, and it always prompts a few initial rejections (indicating that it at least got in front of some editors' eyes), and often leads some editors to give me an update on the review status. Remember--editors are getting a lot of submissions, and pieces tend to get buried in editors' inboxes. A gentle reminder reminds editors of your submission, and might be the prompt needed to get that review (and, perhaps, the offer!)

The Expedite Game

Once an article gets a publication offer from a journal, the next step is to notify other, higher ranked journals of the pending offer and deadline. This "expedite" request tells these other journals that the piece is serious enough to have gotten an offer elsewhere, and that there's now a time limit on when it needs to be reviewed. Expedites can be powerful--a piece that's been met with crickets for weeks might suddenly get a flurry of offers once the other journals are notified. And, as I've mentioned already, some journals likely won't even look at the piece until they get an expedite request.

Once you have an offer, to whom should you send expedite requests? I've always sent the request to every journal with which I'd rather publish--though I move at least a few (or a few dozen) steps up the rankings list when doing so. Rejecting an initial offer for another journal ranked just a spot or two above is rude--though this may not hold as true at the top of the rankings list. With that wrinkle aside, though, my expedite range is expansive, as I include the top-ranked journals in each expedite request.

Other folks I've worked with limit their expedites to journals a certain range of rankings above the accepting journal. As the thinking goes, if they get a further offer, they can then bounce it up to a higher set of journals, and keep doing so until they've got Harvard, Yale, and Stanford in a bidding war. There's some sense to this--after all, will an alert that an article has an offer from a journal ranked in the 200s mean all that much to a top-ten publication? 

Still, I think my more liberal approach to expedites has enough advantages. To start, the expedite performs a function of cutting through the noise of submissions--it's an alert that reminds editors that a piece is in their inbox. Additionally, I suspect that multiple expedite notifications on a piece signal a higher degree of interest by other editors. In choosing to review an expedited article, and editor might prioritize the article that's gotten three offers rather than one. Without those expedite notifications, however, this information goes uncommunicated. Finally, it's my understanding that many journals tend to give shorter deadlines to respond when making offers on pieces that have been expedited. Authors who expedite to everyone, and then get a short deadline on a resulting acceptance, won't be notifying editors at the higher-ranked publications of a pending offer for the first time when this happens.

As a brief note on those offer timeframes, the standard deadline to accept an offer in the past few years seems to be one week. This is a shift from when I was submitting pieces about a decade ago, when two-week deadlines were far more prevalent. Still, I find that diplomatic requests for extensions are often met with approval. And if an editor tries to make an initial offer with a less-than-one-week deadline (and they aren't at a highfalutin journal) a slightly firmer request for more time is more than justified.

Some authors submit to journals in which they don't intend to publish, hoping to secure an offer that they can use to expedite review in other, more desirable journals. I understand why some might take this approach--some journals won't even look at a piece unless it's been accepted elsewhere, and a prominent placement may be crucial for one who's going on the job market or pre-tenure. In my view, though, these reasons are insufficient justifications for the time and effort that editors put in to reading a piece and deciding to extend an offer. Those who put editors through all this work without ever intending to publish with the journal are using these law students as means to a selfish end. I never submit to a journal unless I intend to publish with it. I urge other authors to do the same.

Choosing a Journal

A publication offer feels great for a few minutes. Multiple offers feel even better. But authors refuse joy, and the thrill of acceptance soon gives way to the stress over which journal to choose. Should one go with Washington & Lee Law Review Rankings? Is US News the better metric? What about specialty journals versus flagship journals?

These questions are complicated. I've met colleagues who've developed complex spreadsheets purporting to account for these varying rankings system--spreadsheets that, if viewed for too long, melt the flesh of the skull of the reader.

Choosing a journal is often an article- and author-specific question. While flagship journals are generally preferable to specialty journals, this isn't the case for certain fields--where certain specialty journals are indicators of prestige. Washington & Lee has its uses, but tends to under-rank certain journals--particularly those that haven't been around as long.

As much as I'd like to say I'm unconcerned with the prestige of my placements, I'm junior, pre-tenure, and I want it to be tough for my scholarly interlocutors to ignore me. As a result, I find myself playing the rankings game. My approach is to consider both Washington & Lee and US News. If I'm choosing between offers, I'll likely prioritize one that has a significant advantage in one or both of the rankings. Gut feelings over name recognition is a tie-breaker, and it always helps to speak with colleagues or friends about what they think is preferable. In the end, just know that the problem of choosing a journal is a good problem to have.

For those with tenure and who don't hope to make any career moves, perhaps prestige should take a backseat to other considerations. Those valuing the time and efforts of law review editors may eschew the expedite game altogether. I've known of at least one colleague who indicated in his cover letter that he'd accept the first offer--which he eventually did. Since I write so much, I've done a few exclusive submissions myself--including promising to accept the first offer, or submitting during an off-cycle, exclusive window (which more journals should consider offering). Getting pieces placed this way takes some of the pressure (psychological and financial) off of the regular submission season. If this is a luxury you can afford, give it some thought!

Should I Use Artificial Intelligence to Write the Article I Hope to Submit?

No!

Good luck!

"To Start," and "To Begin": A Deep-Dive Into Writing Tics

Richard Re has a post on the Divided Argument substack identifying what he suggests may be a relatively recent "writing tic[]" of Supreme Court justices: the use of "to start" and "to begin" in their opinions.

Re lists a few recent opinions and identifies Justices who use this language. He goes on to list a few "observations and caveats" regarding use trends and implications.

I have some thoughts on Re's post. To start (ha!), I'll identify and discuss variations in the usages of these phrase that complicate an account of them as a unified trend. Along the way, I share some comments and reactions to Re's concerns.

Re frames usage of "to start" and "to begin" as a singular, irritating tic. But these phrases perform at least two roles--only one of which seems vulnerable to the critiques Re advances. Re appears to take issue with these phrases as excessive signposting, asking the reader to "[i]magine if every opinion included a gratuitous 'In conclusion,' or 'To end,'." These phrases are like the "to start" in the preceding paragraph: a likely unnecessary bit of verbiage indicating that the court is laying out a roadmap. Some of the examples Re identifies fit this mold, including Justice Alito's "to begin" in his Skrmetti concurrence, and one instance of "to start" in Justice Thomas's SFFA concurrence (specifically, the one on page 6 of Thomas's separate opinion).

I can see why Re might have a beef with this. Cumbersome signposting adds unnecessary text to an opinion, and it may be a crutch for writers who don’t want to take the time or effort to make their writing flow naturally. Those who write law review articles on a routine basis may be particularly irritated with these tics, as the Standard Form of the article often requires a cumbersome roadmap at the end of the article introduction.

Still, I’m not sure if I share Re’s distaste for the practice. Unnecessary signposting may make the opinion more accessible—even at the risk of some repetition or excessiveness in telling the reader where things are going. As an opinion to be read by members of the public (there are dozens of them!) and by busy attorneys, this can be helpful. Still, I get the critique of these usages.

But there's more going on here. The instances Re identifies include different usages of the phrases. Specifically, "to start" and "to begin" may be substitutes for "first" in a list of arguments or other related points. We see this in Justice Kavanaugh's opinion for the Court in McLaughlin: 

That is the proper default rule for a variety of reasons. To begin, this Court has long recognized a “‘basic presumption of judicial review’” of agency action. (p. 8)

This seems to be distinct from the gratuitous signposting that prompts Re's criticism because "to begin" is doing more work here. Beyond the function of signaling the start of the Court's list of justifications for a rule (or, in other cases, multiple responses to an argument or claim), the phrase is a stand in for, "first," in setting forth that list. This double duty makes the phrase more useful than earlier instances of its usage. It also adds a bit of rhetorical variety to lists, allowing the writer to vary the presentation rather than repeating, “first,” “second,” “third,” and so forth every time. I don't think Re wants to criticize the use of listed arguments--after all, he includes a list of observations and caveats in his post.

Re ends with a curious point regarding the undesirability of “to start” and “to begin”:

Finally, this tic is particularly undesirable because it suggests a self-conscious performance. It makes the writer visible, and it also implies a planned routine, rather than fluid thought.

I’m not sure I agree. A Justice’s initial reasoning in thinking through the case, the result, and the general justifications for that result may involve fluid thought and reasoned judgment, but the process of setting that function into writing is distinct. Writing out the opinion ensures that the reasoning fits to the result, it involves the identification of missing steps or unrealized assumptions, and makes an effort to justify the result and its reasoning to the reader. Going through the writing process with a planned routine doesn’t seem like a bad thing. 

Moreover, awareness that one is being watched, followed, and potentially critiqued by an audience should make the Justices self-conscious. The (accurate) expectation that readers will parse through and nitpick their opinions may motivate Justices to do a better job in developing those opinions, including pushing them to characterize precedent and other authorities correctly and incentivizing them to list the best justifications for the results reached. This hardly seems like a significant burden for actors with the power to decide the outcome of the cases before them—particularly those with final authority and life tenure.

Law Review Submissions: Editors' Perspectives, Ideal Articles, and the Summer Submission Cycle

It's that time of the year: Scholastica has released their "Advice from Outgoing Law Review Editors" post, featuring thoughts and feedback from law review editors on submission criteria and strategy, as well as the state and future of legal scholarship.

Much earlier in the year, the chief articles editors* of the Harvard Law Review, Yale Law Journal, and Stanford Law review held an online presentation addressing similar points, including issues of article length, timing of submissions, and peer review procedures.

Below are some thoughts and reactions to the post and the presentation--with particular attention to points that I found surprising and illuminating. 

*A note: my notes from the Harvard/Yale/Stanford call (which took place in January 2024) do not include the names or exact titles of the editors who were speaking, although it's my recollection that they were all the chief articles editors (or that equivalent role) at the respective journals. To the extent that I refer to the "editors" at these journals, I'm referring to those participants on the call.

Law Review Submissions: The Basics

Some advice from law review editors on ideal submissions should go without saying. A number of comments in Scholastica's survey of editors reflect the desire that authors substantially research, revise, and footnote their pieces before submitting them.

This appears to be of particular concern for smaller journals with limited editorial staffing. One anonymous editor in the Scholastica survey noted that these journals "giv[e] weight to whether or not the article needs significant or challenging changes before publication outside the normal scope of editing." Another editor notes the importance of proper citation to "help ensure a smooth editing process."

What about article length? Law professors (and others) love to lament the length of law review articles, critiquing their overall length, over-attention to background materials, and extensive footnoting. Nearly two decades ago, a number of high-profile journals issued a joint statement that persists to this day acknowledging concerns over the length of law review articles and suggesting that "[t]he vast majority of law review articles can effectively convey their arguments within the range of 40-70 law review pages." While I agree this is true, I have doubts over law reviews' and authors' efforts to achieve this ideal, as lengthy articles continue to pervade law journals at all levels (though I do think that there's been some improvement over the past few decades).

Unfortunately, the Scholastica survey is relatively quiet on the subject. Last year's survey also didn't have much to contribute on the issue of length, though one anonymous editor predicted that "submissions and published articles will continue to shorten in length." I applaud the optimism!

When asked how long articles should be, the editors at Harvard, Yale, and Stanford gave some numbers--though much remained waffly. Yale's editor said that they look for articles that are around 25,000 words, including footnotes. This is decidedly less helpful than a suggested range for articles, although this same editor noted that they may take "Essays" of around 15,000 words. Stanford's editor suggested a range of 20,000-30,000 words, with a cap of around 30,000 words, although she made room for the possibility of going lower than 20,000. Harvard's editor threw out a 30,000 word figure, though she noted it was not a strict cutoff. Longer lengths would count against the probability of acceptance. Given Harvard's selectivity, one would think that such a negative weight would spell doom for an article. But a quick (admittedly limited) check of the one article in the HLR's most recent issue suggests that the editors are perfectly willing to go well beyond the 30,000 word mark. 

Letterhead Bias and Anonymity

Interestingly, none of the editors Scholastica surveyed mentioned anonymous submission practices. One editor in the 2023 survey did predict that "more law reviews will move towards anonymized submissions."

Concerns over letterhead bias--that is, editors' tendency to more heavily weight submissions from authors employed by, or who have graduated from, elite institutions--do seem to be on at least some editors' minds. One of the recent respondents urged that articles be selected "for their quality rather than based on the perceived prestige of the author." One hopes that editors generally strive for this, but without anonymous submission procedures, this ideal remains largely a matter of hope and faith.

Yale, Harvard, and Stanford incorporate anonymity to at least some degree. All of these journals' initial reviewers read the piece without any information regarding the author. Things get a little fuzzier, however, when it comes to the "peer review" process that these journals employ. Harvard's editor stated that faculty review of submissions is double-blind. Yale's editor stated that while its reviewers remain blind to the author of the piece, their chief articles editor is aware of the author's identity at that stage of review.

I'm on record calling for more anonymity in journals' review process. I think that concerns over circumventing anonymous submissions are overstated, and that more anonymity would go a long way to combat letterhead bias. Several elite journals appear to share this stance, and I hope that more continue to follow suit.

Grabbing Attention

Those who author legal scholarship love to tell their readers how important their articles are. Noah Chauvin details and critiques authors' obsession with telling their readers how their work fills a gap in the literature. Other calling cards for this technique include claims that an area of law is "undertheorized," or that an article is "the first" to ever broach a subject.

While exaggerated claims of novelty are easy to criticize, they exist for a reason. One editor responding to this year's Scholastica survey emphasized authors' need to detail their contribution:

Provide a detailed abstract that includes your thesis and how this paper will add to the literature or field. Often, the value of the article isn’t immediately apparent. If the reviewers aren’t familiar with the field, they might overlook something innovative or conclude that it isn’t novel.

This remark highlights editors' continuing use of the novelty benchmark in assessing the value of scholarship. It also urges authors to continue to place their assertions of gap-filling and trailblazing at the top of their work. 

The Yale/Harvard/Stanford editors didn't have much to say on the subject of novelty, although my notes reflect that Yale's editor indicated that novelty (along with staying power and a secret, third thing that I couldn't write down in time) was one of the primary things they look for in a submission. If you are writing in a novel or creative format, you'd do better to submit this as an essay (although, remember, you'll still have up to 15,000 words to devote to the project!)

Submissions and Expedites

Those who first learn about the law review submission process often come away with the impression that the system is bonkers. And that's because it is. Authors submit articles to the Scholastica website (along with a CV and cover letter), and then submit to dozens of journals all at once. Each submission costs money--an amount that seems to creep up each year. Most (but not all) schools provide unlimited funding to authors, which indirectly incentivizes mass submissions to dozens (if not hundreds) of journals for each piece. Law reviews become inundated with these submissions and Scholastica gets rich.

Journals eventually make offers to publish submissions, which often come with a time limit. The authors then notify all other journals in which they'd rather publish that they've received that offer, and that these other journals have until that other journal's deadline to make their own decisions on whether to publish the piece. This is known as "expediting" an article, and authors use it to "trade-up" their article into as prestigious a placement as possible.

This system isn't without its critics. Anthony Kreis has a succinct takedown of the process, arguing that the expedite process exploits the labor of those in less-prestigious journals who end up serving as an initial round of review for higher-ranked journals. Due to the volume of submissions that journals tend to receive, I suspect that many high-ranking journals effectively require expedite notifications as a prerequisite for initial review. 

The editors at Harvard, Yale, and Stanford had little to say on the subject of expediting. And why would they? They have little to worry about when making offers to authors. When one is at the top of the law review pecking order, where else will an author hope to place upon receiving such an offer?

But other editors don't have it so easy. One editor, responding to Scholastica's survey, took a pretty dismal view of the future of law review submissions:

People have preconceived notions of which journals are prestigious or will provide the best editing.

With the fall of the rankings, I am seeing smaller schools do more to get on the map and be seen as reputable and competitive institutions. But unfortunately, I think the way the submission cycles work, with people “gaming” offers, smaller schools will get left behind. They will spend their time reviewing submissions from authors who submit to every journal available. Or the submissions received will not be high enough quality, which can start a vicious cycle of poor articles year after year, leading to the journal’s demise. The submission cycle favors the traditional, elite, and robust.

Another editor has thoughts on how to improve this state of affairs:

I think legal scholarship would ultimately benefit if a cap were imposed on the number of law reviews to which an author could submit a single article. This would eliminate the gamesmanship that authors sometimes engage in that involves submitting to as many journals as possible and using existing offers in an attempt to procure an offer to publish with a higher-ranked journal. Under a system with a cap, journals would waste far less time reviewing hundreds of articles and be able to more efficiently and thoroughly review articles where the authors are truly interested in publishing with that law review.

Authors face a variety of pressures on where to place. For those hoping to break into a career in academia, publishing in prestigious outlets can make the difference in landing a job. Those lucky enough to get onto the tenure track may then have incentives to published in more highly ranked journals--whether doing so is related to grant/bonus/reward payment schemes, or whether doing so is tied to tenure requirements. These incentive structures play a role in contributing to the phenomena of mass submissions and expediting and shouldn't be left out when one is criticizing these tactics.

Other pressures, though, are more illusory. Ezra Rosser describes "[t]he never-ending pursuit of the gold star," that frequently becomes an obsession for law professors. The "intangible quality of 'being or seeming smart'" motivates law professors to write on ephemeral matters of high theory, and to seek out prestige when publishing. This desire to continue attaining the highest placement possible--even after one has a job, tenure, and all manner of lovely titles, may drive many law professors to continue playing the expedite game long after it is of any true use to their career and prestige. 

To be sure, placement prestige does play a role. Readers may give more weight to articles that place more highly. Placements in high-ranking law reviews may garner more citations. 

But authors shouldn't forget that this pursuit of constant validation impacts law students' lives. Editors who put their time into reviewing a piece, only to have it snapped up by a higher-ranking journal, have sunk their time and energy into a lost cause. This becomes all the more concerning when authors submit to journals without the intention of ever actually publishing--instead hoping to game any acceptances into successful expedites, or to leave the piece unpublished until a later submission cycle. This latter practice, I propose, is something that all authors should take great efforts to avoid.

The Summer Cycle

Sorry--back off my soapbox. Law review submissions revolve around two primary "seasons" or "cycles." There's the spring submission season which starts near the beginning of February, and the summer submission season which starts in August. The general wisdom is that the spring submission cycle is preferable because this is the time of year when editorial boards are beginning to fill their volume. In summer, on the other hand, editors are trying to fill what slots remain--which may mean that there are only a few potential openings for new articles compared with the comparatively unlimited potential of the spring cycle. Because of this, the advice you'll typically hear is to publish in the spring whenever possible, and to avoid the comparatively tough summer cycle.

I've tended to take this advice with a grain of salt, as I've submitted and published most of my work during the summer cycle. I typically do so out of a combination of reasons--summer is when I have the most time to write, a fair amount of what I write on tends to be time-sensitive, and I'd rather move onto new projects than to build up a glut of unsubmitted work. This experience leads me to encourage people not to sleep on the summer submission cycle.

But what I heard earlier this year from the Harvard/Yale/Stanford editors may cause me to rethink my way of doing things.

All of these journals assured the audience that they accept pieces submitted during the summer. Harvard claims to have a year-round submission cycle. And yet the Harvard editor stated that for their last issue, they accepted seven articles in the spring and three in the fall. Yale's editor stated that they always leave the summer open, noting that they accepted two (2) submissions during the prior summer cycle. And Stanford's editor stated that they want authors to have a "substantial opportunity" to publish in the summer, noting that their prior volume consisted of ten pieces submitted in the spring, and four submitted in the summer.

While all of these editors asserted that this information demonstrated the utility of submitting in the summer, my takeaway was that the critics of the summer submission season were right--at least with regard to these journals. Getting placed at journals like these is difficult enough in the aggregate, and doing so in a season where one's prospects are placing only two to four articles for the overall volume leaves one with dismal prospects of success. To be sure, these are only three journals--and their prestige gives them the pick of the submissions universe. But perhaps there is something to waiting till the spring, if possible, to submit pieces to law reviews if this disparity is more widespread.

Artificial Intelligence?!

Here's a note from an anonymous editor in the Scholastica survey that raised at least one professor's concern:

It appears that there have been a lot more theoretical/social science and law crossovers lately. I predict that there will also be a significant increase in AI articles, given the number of symposiums that are talking about AI. I’m sure that selecting articles will no doubt use the same technology that we are discussing in our articles to also assist in choosing articles.

The notable portion of this quotation is the un-bolded text of the last sentence, which suggests that editors who select articles for publication will use AI technology "to also assist in choosing articles." What might this mean? Is it not enough that generative AI is going to end the world--or worse: render attorneys obsolete? Will our technological overlords also begin making the publication decisions that determine the trajectory of my and my colleagues' careers?

I'm not sure I'm all that concerned by the remark as some other authors might be--primarily because I don't think it's a fully enough formed idea to pose a discernable threat (or promise?) of substantial change to the way things work. Perhaps there is something to be said about running preemption checks using technology--and maybe AI will play a role in the process (though I suspect that the technology at issue here would more likely resemble existing search algorithms rather than the language models powering technology like ChatGPT). Indeed, when we start thinking of the varieties of technologies that exist under the "AI" umbrella, one might begin to see just how broad a notion editorial use of AI might be.

Law Review "Policies"

A theme I notice--particularly in thinking over the remarks of the Harvard/Yale/Stanford editors is the distance between written policies and how these policies work out in practice.

The Harvard Law Review, for example, claims to review submissions year-round. Yet the Harvard editor repeatedly made remarks about following submission cycles--at one point noting that they accepted seven submissions in the preceding spring cycle, and three in the summer. To me, this sounds like a journal that--like the others--follows the submission cycles. To be sure, this may result from submission patterns rather than the journal's own review procedures. But if this is the case and Harvard's review practices end up mirroring the summer and spring submission cycles, I wonder how much it means for Harvard to claim to review submissions year round.

There are other examples of discrepancies between policies and practices. Overly long articles are less likely to be accepted--except for the ones that are indeed accepted and published. The journals strive to maintain robust summer submission cycles--sometimes publishing two, even four!, articles submitted in the summer months. We accept "essays" that are around 15,000 words in length (Yale); or we accept essays (well--maybe 1-2 per year) (Harvard).

Perhaps this is an effort to educate authors who lack practice experience to how the theory and letter of the law breaks down in practice. A legal safeguard or requirement that is clear as day in the statute books can be of little use in a crowded courtroom where the judge has their own view of the law and the client lacks the funds to appeal. Law journals' willingness to bend or break their stated rules offer legal academics a taste of this all-too-frequent frustration practitioners face.

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.

In Praise of Legal Oddities: Explaining My Research Agenda

During my second year of law school and for a few years thereafter, I dove into the world of writing and publishing legal scholarship. I wrote or coauthored seven law review articles from my second year of law school until about a year after graduation. All this while I was going to class, blogging, doing law review and moot court, and (in my third year of law school) working as a TA in undergraduate philosophy classes. 

My writing came to a halt when I began practicing civil litigation. Billable hours, being expected to read and respond to emails at any given moment, and learning the ropes of a new field (after a year doing criminal law) took up virtually all hours of my day. Unable to find a balance between work and free time, the time and energy I needed to write legal scholarship vanished.

After a few years of this (and after a few lateral moves), I ended up where I am now. I'm still busy, and the work is more complex and engaging than ever, but I've been able to strike a better degree of balance at my current firm. Because of this (and because of my need to find a distraction during several particularly difficult evenings of non-billable e-discovery administration work), I decided I'd try to get back into the game of legal scholarship. This led to my first published article in nearly six years--Shooting Fish.

I wrote Shooting Fish for fun--although a need for a thorough study of every state's laws restricting shooting fish with guns also came about due to a desire for completeness after writing an initial, partial draft of the article. It's my hope that the finished product demonstrates how much fun I had writing and researching it. 

Beyond being a fun article to write, and getting a bit of attention from others in the legal community, Shooting Fish reinvigorated my interest in academic writing and research. I began some serious research into originalism and related constitutional issues along with other timely legal topics. But I also kept my eye out for quirky subjects that could be the next fun article--something that could distract from the rigors of everyday work.

Fast-forward to today. I have three more articles accepted for publication, and two others completed and pending acceptance (although my hopes for one of them aren't too high). My writing at this point can be classified into about three rough categories:

1. Writing on legal issues relevant, or tangentially relevant, to my civil litigation practice. This takes up the smallest portion of my recent writing, and consists primarily of my article, The Citation of Unpublished Cases in the Wake of COVID-19. 
2. Critiquing constitutional originalism. My friend Al Hiland and I coauthored Originalism's Implementation Problem, which marks the start of a larger project of critiquing originalism. Our broader project is to undercut originalism as an acceptable theory of constitutional interpretation, and begins with exposing the gaps between academic originalism and "originalism" as described in politics and judicial practice. I've already written another article in this vein critiquing recent work by Stephen Sachs on treating originalism as a standard, rather than implementation procedure, and there are several other outlines and drafts in the pipeline.
3. Legal oddities. Continuing the work that I started with Shooting Fish, I've written two other articles exploring odd and underdiscussed areas of law. I've written a survey of attempts at invoking trial by combat in the United States and England, and I've written about the Third Amendment and how it was invoked in litigation, scholarship, and the media in 2020. I have the most topics and articles in the queue in this category--with plans to write about the use of dreams in evidence, the historic and modern treatment of animals as villains by the law, and (perhaps) a discussion of historic litigation over church pews and how these frequent historic disputes are referenced in modern statutes.

The traditional value of the first two categories of my articles should be fairly apparent. Writing on legal issues related to my litigation work demonstrates that I know what I'm talking about, that I've taken these issues seriously, and is helpful for the firm, which can point to this article as evidence that its attorneys know their stuff when it comes to litigating relevant matters. The originalism scholarship is valuable from a traditional legal academic perspective--originalism is a subject of great debate and volumes have been written expounding various theories and tearing those theories down. Decent scholarship in this area is relevant to high profile cases and political issues, and can demonstrate an author's knowledge of constitutional law and legal theory.

But where is the value in writing about shooting fish, trial by combat, the Third Amendment, and other odd areas of the law? Why is this such a large portion of what I'm writing about?

To start, there's practical and professional value in writing about these issues. It isn't as easy to find the key cases and scholarship for quirky research topics as it is with more mainstream issues like originalism. Researching these issues to the degree necessary to provide a useful, thorough treatment hones my abilities and demonstrates that I, as a litigation associate, am ready to get into the weeds of all sorts of topics. Writing these articles also helps develop my writing skills as a litigator. It's not enough to research the nuances of weird topics, they also need to be presented in a clear and engaging manner to keep the audience's interest. As it turns out, the same is true of writing persuasive motions in litigation. In writing scholarship on legal oddities, I draw on the writing skills I've learned as a litigator and am able to further hone those skills.

There's also academic value in writing about seemingly trivial topics. While shooting fish with guns and demanding trial by combat may, at first glance, seem irrelevant to mainstream legal issues or practice, in-depth discussion of these subjects implicates a wide range of relationships and connections with modern law and important policy issues. Laws against shooting fish with guns have constitutional implications, they can be used to illustrate effective or ineffective methods of drafting statutes, and they have bearing on environmental research and considerations that give rise to these laws in the first place. The Third Amendment illustrates how arguments may be made regarding constitutional rights in a near-vacuum of scholarship and case law, and is frequently cited by courts as an example of the Constitution's respect for privacy, the home, and freedom from government interference in people's daily lives. Exploring the implications that obscure laws and topics have on the broader framework of law and policy reveals new ways of thinking about commonplace issues, new connections between seemingly disparate policy considerations, and gives the reader and writer a more thorough understanding of the legal system.

Ultimately, though, the main reason I write about these topics is because it's fun.

Writing as an associate at a firm, rather than as a fellow or professor, comes with some disadvantages. My job requires long hours, hard work, and--when busy--becomes nearly all-consuming. If I'm going to write legal scholarship, it needs to be in my spare time, and I need to find the motivation to write after practicing law every day. Writing about topics that interest and educate me is enjoyable in itself, and provides the motivation necessary to write, even if I've been churning away on motions, pleadings, or hearings for many hours that day. 

There are also advantages to writing as an associate. I don't need to pigeonhole my research interests into subjects that I think would are inherently of interest to a mainstream academic audience or tenure committee. I just need to make sure that my writing is well-researched and engaging. I also need to make sure that I'm not disclosing any work product or writing something that has negative implications for my clients and cases, but thus far I haven't had much of an issue with this when writing my quirky articles. Perhaps, some day, I'll have a client that wants to demand trial by combat, at which point my scholarship will come back to haunt me. Until then, I'll continue to enjoy writing what I want.

Academic legal writing as a fun undertaking isn't discussed much, but it isn't a completely novel concept. In Scholarship As Fun, Thomas Schultz advocates for the pursuit of fun in scholarship, noting that it is likely to prompt more varied, and--on the whole--better work than scholarship motivated by other considerations:

And when we seek fun, the fun of a joyful, life-affirming, mind and heart-changing, soullifting freer existence, we are likely to engage in creative productivity. We are led to roguish experimentation, to playing legal punk, to throwing inter-temporal surrealist parties of legal thought. And all of them help us see something. As Karl Popper, and others, have suggested, for instance through the idea of truthlikeness and verisimilitude, it is quite unlikely that any given account of mostly any phenomenon is perfect, in the sense that it captures all the elements of the phenomenon and predicts with flawless accuracy what the phenomenon is going to do in a given situation. And so competing coexisting accounts of the same phenomenon are welcome, even if they are mutually exclusive; they provide a richer overall understanding, even if from the relative perspective of each the other account must be wrong. The same idea can be applied to normative theories just as it is to descriptive ones, and to anything in between, to any particular resultant of the dialectic relationship that these two opposite poles entertain (there is always some normative aesthetic prefiguration in any description, as the discussion so far has implicitly argued, and there is always some descriptive preunderstanding in a normative statement).

Other legal scholars' work seems motivated by fun more than anything--Brian Frye is probably one of the most obvious examples.

I acknowledge that the pursuit of fun may be a limited option for those in the academy--especially junior scholars. The legal academic job market is intense, with ever-increasing expectations by hiring and tenure committees that applicants publish mainstream scholarship in prestigious law reviews. Those law reviews also tend to accept scholarship that will make them look good, focusing on popular, well-trodden subjects and favoring work by well known professors.

An aside: I was an articles editor for the UCLA Law Review years ago, and I remember a submission we received from a practicing attorney. I couldn't tell you today who the author was or what the article was about, but I still remember that the article was written in an extremely formal, stilted, hypertechnical manner to the point where it was virtually unreadable. I suspect that the author didn't normally write that way, but that he had tailored his presentation to what he expected an academic publisher wanted. In doing so, he fell into the trap of writing too much like his vision of an academic, and not enough like a normal person.

Law reviews have fallen into a similar trap--they're motivated to publish too much like what they envision law reviews to be. Law reviews consider (and often prioritize) a submission's likeliness of being cited, author prestige, and the popularity of subject matter when deciding to publish a particular article. There's pressure on them to do so--few topics of discussion are more popular among established professors than lamenting their own students' fitness as publishers of legal scholarship. As a result, most journals avoid "risky" scholarship, which in turn causes scholars motivated by the job hunt or tenure prospects to abstain from writing such scholarship. The machine that encourages the publication of mainstream, traditional, and often boring scholarship perpetuates itself.

How can law reviews and authors go about rediscovering the joy of writing legal scholarship for fun? On a narrow level, I think that established professors and authors who don't face the same risks and pressures of junior scholar should do more to promote the publication of nontraditional scholarship. Professors with tenure, for example, could write about less-popular, or downright odd, subjects to shed light on these areas of the law. Where these professors go, other writers and journals will likely follow. Prestigious professors should also cite to and engage with nontraditional scholarship and authors--for example, they should consider publishing and citing to online supplements, and citing authors who aren't tenure-track law professors. And while I know from experience that it's a tall order, authors who don't face the tenure and hiring pressures of academia--say, attorneys working for law firms, the government, and nonprofit organizations--should consider writing and publishing about the subjects they love most. In order for quirky scholarship to get published, it needs to be written. It's my dream to see more practitioners getting involved in the world of legal scholarship (rather than limiting themselves to short form legal newsletters and periodicals).

On a broad level, I think that people at all levels of the legal community need to reevaluate the value of quirky legal scholarship. Articles about offhand topics may, at first, seem irrelevant, but well-written and researched scholarship may offer valuable insights and angles for thinking about more mainstream subjects and fields. Legal reasoning is, to a large extent, an art of arguing from analogies, and the more subject matter that people consider and write about, the more resources there are to make these arguments. Finally, spending time on pursuing quirky subjects--which often stem from what authors are most interested in and excited about--will likely improve the lives of those who write and consume legal scholarship.

Experiments with ScholarSift: An Interesting, But Opaque Platform

A few days ago, I wrote about Brian Frye's article in Techdirt where he discussed ScholarSift, a new platform for legal research. A broader discussion of that platform and my concerns with it are in my earlier post--in short, users can submit an article on ScholarSift (either a draft article of theirs, or a copy of a completed article), and the platform analyzes the text and citations to return "relevant" results. Notably, the platform highlights relevant results that are not included in the citations, which may help direct writers to authors and articles that they may have otherwise missed in their research.

I ended up getting credentials to try out the system and submitted a few articles--both draft articles and completed articles. It was an mixed experience. For the drafts that I submitted, I found a few articles that I had not tracked down in my research thus far. And for some of the articles I tried out, there was a nice diversity of results, although it was sometime difficult to sort through the long list of results that some of the articles generated. While the organization of results was sometime unclear and difficult to sift through, the ability to filter between journal articles, books, and cases was a welcome feature. The basis for the organization remained unclear though--with little more indication of why results were listed in a particular order beyond a vague "relevance" criterion that was measured in unknown degrees.

Some articles I tried out caused the system to turn out some odd, unhelpful results. I submitted one article, a draft paper surveying state self-defense laws and applying philosophical takes on freedom of belief to determine the ideal approach to this area of the law. The draft included a few pages that discussed the phenomena of self-defense in cases where the defendant was trapped in a cycle of domestic abuse and violence prior to killing their domestic partner and whether that history of abuse may factor into the defendant's mindset--a scenario that much of the literature describes as the "battered woman" defense. The "battered woman" phrase seemed to have a disproportionate impact on the results that were generated as nearly all of the articles and cases addressed this phenomenon, even though that discussion was only a small portion of the article itself. I suspect this may have been a result of the contents of the database of articles from which ScholarSift draws its results, or it may have been because the "battered woman" phrase was repeated several times in the text and citations (although the phrase "self-defense" was used even more frequently).

I also submitted my article, Shooting Fish, to see how the platform might respond to an article on an unconventional topic with a wide range of statutory citations. The results brought back a disproportionate number of articles about fishing rights and practices in the context of American Indian tribes. This was, admittedly, an area I did not address in the article. I made the decision not to explore tribal laws partly because I wanted to limit the scope of the article (for the same reason, I relegate my discussion of federal restrictions to under a page). I also am not as familiar with tribal law and was concerned that I would not be able to conduct systematic and thorough research of those laws. While I acknowledge that ScholarSift fulfilled its purpose of identifying an area of the literature that I did not address, it's overwhelming focus on that area of literature ended up crowding out other results that were related to laws and issues that I did address in the article. The platform did generate several relevant results (I was familiar with several of the articles it generated from research I'd done in related areas), but the disproportionate focus on literature related to American Indian laws, treaties, and rights made the results a bit more difficult to navigate. 

Other articles I submitted suggested that there's still a way to go with the database. I submitted a draft article I'm writing on trial by combat in American law--the results ended up being all over the map. While trial by combat is not a subject of common discussion in modern legal literature, it is addressed more frequently in history articles. While I occasionally got results for some papers from journals outside the legal field (some different articles I submitted resulted in citations to medical and psychological journal articles), historic literature on trial by combat was conspicuously absent from the results. 

Similarly, I submitted an article on pew rights and related legal disputes to stress-test the database's capabilities. The results ended up being as helpful as I could have expected. There was a lot of First Amendment literature in the results that did not really match up, but I was pleasantly surprised by the number of hits for articles discussing intra-church disputes and court treatment of canon law.

I also noticed that I kept having to sign out and log back in after every two or three article searches. This was not a substantial burden, but it made me feel judged.  Perhaps I was offending the system with the bizarre articles I was submitting.

From my experience so far, I stand by my the conclusions in my earlier post. I think that ScholarSift is a useful tool to have available for legal research and writing. At this stage, it certainly is not sufficient to serve as the only tool--after all, it is designed to analyzed near-complete drafts to determine what sources and citations are already missing, and authors need to be able to do the research to get to that stage of the draft. I still have qualms with how the platform works--the metrics behind the "relevancy" determinations remain entirely unclear, as do the contents of the database from which the platform draws. If ScholarSift's database continues to expand to older works and articles in non-legal fields, it will be a welcome addition to other research platforms that are currently available.

Citations, Hierarchies, and Algorithms in Legal Scholarship

I read Brian Frye's Techdirt article, "It's the End of Citation As We Know It & I Feel Fine," where he makes the bold claim that the "worst thing about legal scholarship is the footnotes." In a field where article lengths are expanding to 100 pages and beyond, where costly submission software crowds out students and professionals who are outside of the academy, and where journals will publish anything--even ridiculous articles about shooting fish with guns, there is serious competition for the title of what aspect of legal scholarship is "the worst."

I won't deny that footnotes in legal scholarship can be a bit overwhelming for the uninitiated, and that some editors demand citations for everything under the sun. But I'm not sure that the footnote craze is as horrible as Frye makes it out to be. To start, I suspect that the focus on footnotes originates, at least in part, with the legal writing that many law students will go on to prepare in practice, in which arguments referencing cases and statutes require frequent citations to support the claims being made. To the extent that law review articles--particularly those with a more doctrinal focus like 50-state surveys of laws governing the shooting of fish with guns--include citations to case law or statutes, those footnotes should be encouraged to confirm that the legal claim being made has a basis in legal authority. 

Even when citations are to scholarly, rather than legal, authorities, frequent footnotes can be helpful. They maybe a resource for those doing research in the area to find related scholarship on particular issues. They can serve as a substitute for literature reviews, reducing the length of what may already be a too-long piece. Footnotes to scholarship may also provide a barometer as to the legitimacy of claims being made. Overreliance on single sources, or--God forbid--citations to one's own work may undermine claims that are presented as well-established. Finally, numerous, repetitive, and useless footnotes, (I'm thinking especially of introduction footnotes beginning with "See infra Section __"), should be dealt with by the author, who can refuse to include such footnotes in the initial draft and who can (and should) push back on editors who demand such useless additions.

Frye turns to a discussion of ScholarSift, a platform created by Rob Anderson and Trent Wenzel, that purports to analyze legal scholarship to "identify the most relevant articles." From what little I can find out about ScholarSift, people can upload an article (either a draft, completed, or already-published article) and the system locates "relevant" articles based on analysis of the article's text and citations. 

Frye suggests that ScholarSift could be used as a substitute for footnotes by finding sources that are similar or relevant to the text being analyzed. This does not seem feasible, as the software appears to be built around connecting authors to similar, or "relevant" sources based on the whole of a draft. It does not appear that the system is designed to connect one particular statement or proposition in an article to a source (or sources) that support that statement--instead, it generates a list of "related" articles (and, I think, cases, laws, and maybe books) that are "relevant" to the article as a whole. Replacing footnotes with this program would be similar to a law review article listing a bibliography at the end and telling the reader to look through all the sources to confirm whether the article's contents are accurate. As much work as sorting through footnotes may be, this approach sounds like much more of a burden.

(I admit that I do not have a ScholarSift account--which you apparently can only get by submitting a request by email. If my description of how the system's use of submissions to generate results is therefore incorrect, I welcome corrections.)

But Frye's discussion of ScholarSift raises some interesting notions about how it may assist in legal research help legal scholarship as a whole.  Frye writes:

It works really well. As far as I can tell, ScholarSift is kind of like Turnitin in reverse. It compares the text of a law review article to a huge database of law review articles and tells you which ones are similar. Unsurprisingly, it turns out that machine learning is really good at identifying relevant scholarship. And ScholarSift seems to do a better job at identifying relevant scholarship than pricey legacy platforms like Westlaw and Lexis.

 

One of the many cool things about ScholarSift is its potential to make legal scholarship more equitable. In legal scholarship, as everywhere, fame begets fame. All too often, fame means the usual suspects get all the attention, and it’s a struggle for marginalized scholars to get the attention they deserve. Unlike other kinds of machine learning programs, which seem almost designed to reinforce unfortunate prejudices, ScholarSift seems to do the opposite, highlighting authors who might otherwise be overlooked. That’s important and valuable. I think Anderson and Wenzel are on to something, and I agree that ScholarSift could improve citation practices in legal scholarship.

I'm a bit less optimistic than Frye about ScholarSift, largely because I cannot find any information on how it works, it is unclear what database of documents ScholarSift pulls from, and I am concerned that to the extent that it relies on a database of legal scholarship, the hierarchical problems that Frye identifies in his article may still be imported into results. 

Regarding the lack of information, ScholarSift's website contains virtually no information about how the system operates. I have not been able to locate additional written information on ScholarSift anywhere else--although my search for such information was admittedly a cursory one. I located, and listened to, this Ipse Dixit podcast interview of Rob Anderson who describes how ScholarSift works. But, as is the case with the website, the information is presented in largely conclusory terms--describing how the system will "look at" the text and citations of an article uploaded to it and analyze "relationships" between other articles to sift through a database of "a few hundred thousand articles" and list results in an order of what is most "closely-related." It remains unclear how "relevance" or "closely-related" determinations are made, although it appears that this is done through an analysis of the text, including commonly used words, phrases, and maybe combinations and/or proximities of words or phrases to one another.

The makeup of ScholarSift's database of articles and sources is also unclear. The contents of the database, how determinations are made on what to include, and the age of what is included are all mysterious. On the podcast, Anderson notes that scholars using the platform can upload their own drafts or articles to ensure that they are part of the database, but I expect this would only account for a small portion of what makes up the database. Without more information on the database, its contents, and how its contents are selected, it is impossible to conclude that ScholarSift can conduct exhaustive searches of potentially relevant material.

Finally, Frye and Anderson note that ScholarSift may help break down hierarchy problems in legal academia, where big names from prestigious institutions tend to be overcited, and where the body of scholarship consists largely of articles written by white, male authors. If the processes for locating "relevant" article truly focus on an article's text, perhaps the platform will have some impact. But I have my doubts. 

First, the platform is meant to analyze articles and their citations in locating relevant results (although this will supposedly change as the system develops). If citations are included as inputs, though, they will influence the searches, and authors' biases in selecting their own sources will likely be reflected in the results. 

Second, related to my concern about the database's contents, ScholarSift presumably draws from a body of scholarship in legal academia, in which white male authors are overrepresented (especially if historical writing is taken into account). Even if determinations of relevance are based on the text of submissions and articles in the database, this will still result in results skewing towards white males if they make up the bulk of what is included in the database. 

Third, Anderson notes that there will be features permitting searchers to filter results in various ways, including by high citation rates. This suggests that the system at least includes information on articles' citation rates, and this information may influence what results are deemed "relevant"--which may in turn continue to perpetuate hierarchies of overciting authors from the most prestigious institutions. This last concern is, admittedly, speculative, but without information on how the algorithm works, this concern shouldn't be dismissed. Additionally, as the program develops (and, especially, if it is used to generate a profit), there may be pressure to prioritize results that account for the "prestige" of an author or publications--which could defeat the very purpose of the platform.

If ScholarSift is truly text-focused (as Frye describes, "Turnitin in reverse"), it may have a positive impact on legal research and lead to increased diversity in citations. Hopefully that will be the case. And Anderson notes that ScholarSift may end up being an alternate mean for submitting articles to law reviews--an outcome I would be happy to see. I think it is still early days and that it is too soon to be overly optimistic. But ScholarSift may be worth watching and including as one of many tools used by authors of legal scholarship.