The Rise of International Law in Flagship Law Journals

The Rise of International Law in Flagship Law Journals

Struck by the fact that the two articles in the May 2006 issue of the Yale Law Journal were both international law-related, I thought it might be interesting to see how IL is playing in main law reviews relative to the recent past. Unsurprisingly, the number of articles on IL subjects has increased pretty dramatically. In the two years from the summer 1994 to the summer of 1996, the main journals at the top 20 law schools (using US News rankings) published only 12 articles with an IL focus. For the two year period summers 2004-06, the number is 40. Student notes are excluded from the figures, as are straight comparative, immigration, and European law subjects. (The two lists can be found after the jump. Thanks to my research assistant Jonas Mann for doing the legwork.)

When I first started teaching in 1994, IL scholars making unsolicited submissions to flagship journals often had the experience of getting an acceptance from a journal they hadn’t even submitted to, as main-journal editors walked submissions down the hall to their IL-journal counterparts. That may still be happening some of the time, but it’s clear that main journals at the top schools are now interested in publishing IL pieces where they once were not – yet more evidence of the end of IL’s marginalization within the legal academy. And while it’s true that a number of the more recent pieces are in effect anti-international law (with revisionists such as John Yoo and Eric Posner well represented in the 2004-06 list) that doesn’t detract from the point – if IL’s worth attacking, and those attacks are being well-placed, there must be something interesting going on.

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Edward Swaine
Edward Swaine

This reinforces my informal perception of what is happening . . . which must mean it’s right! You might consider excluding general law reviews at schools that do not (or did not) have an international journal (as was true for Chicago), or which had only a specialized journal focusing on trade, economic law, or something like that (this might affect Penn, Northwestern, and Minnesota, and perhaps others). Also, I would be tempted to exclude articles on foreign relations topics. As to the marginalization point, I guess it depends on what you mean. I imagine (though I have no data whatsoever to back this up) that international law pieces found homes in international journals in large part because folks elected to submit to them, perhaps after having had a hand in founding them, and not only because their submissions were walked across the halls. Now it seems that more pieces are being published in general law reviews, but that’s at least in part because folks are submitting to them (I can’t imagine that international journals are passing their submissions to the general law reviews, at least not routinely). So was any marginalization at least partly self-imposed? Perhaps a follow-up post could… Read more »

Peggy McGuinness

Guilty as charged. As an articles editor at one of the flagship journals (Stanford) from 1998-99, I can confirm that I did, in fact, walk certain articles down the hall to my friends at the international journal. Even as the token “internationalist” on the articles board, I felt that some articles were just too narrow for the main journal. (Maybe I’m a self-loathing internationalist!) Of course, now that the tables are turned, I get a bit peaved when a journal tells me they have forwarded my article to their international review down the hall. As to Ed’s question, at my institution, I have been told explicitly on more than one occasion that publication in speciality journals is risky pre-tenure. There is no particular logic to it, as far as I can tell, just tradition and a sense that it may be hard to convince the university-wide tenure committee of the value of a secondary journal. I suspect there are similar attitudes on other faculties. This may mean accepting an offer from the main journal of a lower-ranked school (which doesn’t make it into Peter’s statistics) in lieu of placing at the international journal of a flagship school.

Edward Swaine
Edward Swaine

Peggy’s experience isn’t unique, I suspect, and changes one’s appreciation of the situation. One gloss on Peter’s observation might be, in effect, “Isn’t it wonderful that general law reviews are grasping that international issues are legitimate and of interest to everyone” — which might be an indicator of de-marginalization. The more negative spin would be that good international work can be published in general law reviews, so that international types can no longer make the argument that their work really belongs by publishing convention in specialty journals. I think the truth lies somewhere between: some good work is published in general law reviews, and some equally good work finds its way into specialty journals (because of authorial preference or practices at the general law reviews, either one of which may be influenced by whether it’s really a “core” international question). Using placement in one kind of publication as opposed to the other is an even weaker signal of quality than relative placement among general law reviews is for non-international sorts. This may mean that the word “flagship” is kind of misleading, to the extent it is understood to connote anything about the status of the crew. And we can cite… Read more »

Nema Milaninia

As one of the current article editors at Hastings Law Journal, which have that interesting problem as well. For us, there’s no question that matters concerning transnational law have become probably the most interesting area of the law (but I’m probably coming from a biased perspective on that though). The problem though, is that we feel inclined to stop publishing articles on transnational law once we’ve reached our “quota.” That is to say, since we aren’t a International Law Journal, but the flagship journal, we feel obligated to publish articles on a variety of topics. So technically there could be a number of articles on international issues which might warrant publication over articles on contract or tax matters.

You know, I would warrant a guess that if you asked any incoming law school class what they dream of doing, those who said “international law” would garner the majority.

Kenneth Anderson

I asked a couple of students of mine here at American University, on the main law review and on the international law review. They both mentioned a kind of informal arrangement that sent international or comparative pieces to the international journal – in part because, students from both journals said, the main journal shouldn’t cut out the international journal from good pieces in its field. The probably correct assumption being that the main journal carried more prestige and would get, in a match between the two, the best articles. So there might be a bit of an altruistic reason on the part of the main journal not to hog the top international stuff at least at some schools. We are, after all, the kindler, gentler law school!

Peter Spiro
Peter Spiro

Ed and Peggy’s comments reminded that Roger had the post I’ve now linked to above. My impression is that there was a time in which various pressures – tenure-related and otherwise – were pushing IL scholars to place in flagship journals, so that the poor showing there wasn’t a matter of choice but rather of marginalization. But the pendulum may be swinging back, as Roger’s post suggests. Where IL folks once would have taken an acceptance at a second-tier main journal rather than a top IL journal, I think the reverse is now more the case – an acceptance with Harvard, Yale, or Virginia’s IL journal will trump all but a top-15 main journal acceptance, and an increasing number are foregoing the main journals altogether in favor of AJIL and EJIL. In any case, nice to be able to play in both worlds.

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