Final Thoughts on Journal Submissions

by James Tierney

At the end of my last post I alluded to preemption as an obstacle to receiving an offer. Many times authors will be able to determine for themselves whether their article is novel or whether someone else had the same idea in 1986. Other times information about possibly preempting articles is more asymmetrical. My impression is that there are a couple of hot topics every year that grab the attention of many authors, usually based on what issues are being litigated or are in the news. For more than a year, topics like “fixing the mortgage crisis,” “immigration preemption,” “health care,” “international tax,” and “targeted killing” have all received a lot of attention from scholars. This is not to suggest that there is nothing left to be said about these topics, for new facts on the ground and new arguments can reframe the terms of the debate in ways that move scholarship forward. I look forward to seeing how work on targeted killing will continue to develop in the next year or so, for example.

But trendy topics like these carry strong first-mover advantages given the long time-horizon of the publication schedule. My sense is that an article completed today is not likely to be published sooner than January 2012, and articles published today were likely completed not much later than September 2010. There may be several articles about the same topic in the pipeline, none of which may be known to any of the other articles’ authors. Considering an example purely at random—sorry for readers who are working on this topic—the IL community is likely to see a large number of pieces on direct participation in hostilities come out sometime next spring. Authors don’t know what other authors are writing about, leading to an information gap.

This gap is asymmetrical, for on the other side of ExpressO, editors may see a glut of 10, 20, or 60 (gasp!) articles on a given topic. Even if editors cannot conclude formally that an article is preempted, they might think it carries a higher risk of preemption given the uncertainty of what other articles are in the pipeline. So too might they experience burnout on these topics, akin to the intertemporal preference-shifting effect I described in my first post. Even if alternative submissions expected to come in throughout the year might be higher quality, an article reviewed in April may preempt the better-executed article reviewed eight months later. Yet as these articles start to get published and the time horizon continues past a single volume’s publication cycle, authors start to see the glut of articles and may determine that it’s no longer profitable to write on that once-trendy topic, given fewer opportunities to carve out a novel argument for themselves. This may explain why, as a commenter noted after my first post, we haven’t seen many articles about torture in the past few years; early movers in 2003 to 2006 have made it difficult to come up with something new to talk about.

I’ll close my guest stint with a few brief thoughts, although I can try to respond to further questions or comments below.
• Five years ago my journal did not accept electronic submissions, but now all but a handful are electronic. Electronic submissions mean I can read your article on a smartphone in the gym, or on the train, without carrying around a stack of paper. It means I can distribute your article to editors who have summer jobs in far-flung cities. It means I am not killing trees. I, for one, welcome our new Internet overlords.
• To briefly wade into the debate about peer review: if professors really thought student-edited journals were not institutionally competent to review scholarship, they would sort into their own peer-reviewed journals. PRSM may be a start, but ultimately I don’t see control over the submissions process (the fun part) shifting to professors, until the latter start handling the citechecking and production process (the not-so-fun part). In this way, “calls for abandoning law reviews are counterproductive unless faculty are committed to occupying the field.”
• Readers skeptical about some of the claims I’ve made–such as editors having enough expertise to evaluate scholarship in a specialty area–might check out a post by Lisa Larrimore Ouellette, a YLJ articles editor, that I just now came across and that makes some of the same points.
• I suggested last time that articles generally place into the right category for their quality. This isn’t a hard and fast rule, and isn’t meant to suggest something like a “merit pyramid,” as a commenter alluded to in a recent thread on PrawfsBlawg. I’m sure I’m not the only person who has read an article and thought its quality didn’t necessarily match up with how it placed (in either direction). Anomalous preferences, internal board politics, and informational asymmetries can throw wrenches into the placement process, giving us pause before thinking rankings are anything but a highly imperfect proxy for “quality.”
• That said, it may still be a proxy. Getting to a final board read at a “top” journal may mean that an article is among the best 30 to 100 articles they are considering. Even if a publication offer doesn’t follow, if journals disclose that a submission got to a final board read, authors might conclude from that signal that they’re doing something right.
• Journals will have different policies about whether they treat “articles” and “essays” in the same process. Many collapse the distinction, unless of course they specifically say otherwise in their submissions instructions.
• The consensus seems to be that many journals have closed up shop for this volume. Authors might consider off-season submissions for journals that do year-round submissions.

Thanks again to Roger and everyone at Opinio Juris for hosting me during a week that turned out to have some important news for those interested in international law. For everyone who has placed articles this year, congratulations; for those currently working on articles with an eye toward submitting later this year, best of luck!

5 Responses

  1. Thanks for the insights. 

    I am asking my librarian to look at the 2003-2006 period and give me a list for the articles on torture at the main law reviews at the 50 top schools at US News and World Report.   My sense is that anything, if at all,  beyond “torture is bad” or “torture is against our values” or “torture is not torture” or “torture is complicated” was not published. 

    Saying “there is a crime and put these folks in jail” was “just not done” in the same sense that when we were working on the 2006 ASIL Centennial Resolution there was the talk about not making people in the Bush administration look bad who were (supposedly) fighting the good fight on the inside.  Then, of course, you find out that was just more blather to get one to acquiesce.

    Now, you can go around this past week on television and see the relentless, relentless effort to vindicate the torture up to last night on Huckabee with John Yoo being portrayed as “tragic hero” in some Gary Cooperesque vision.  This insistence on acquiescence by us I think goes right through the law reviews in the main journals for I suspect they are only willing to take on “the man” in certain gentle ways – because they want to be “the man” someday.

    On first mover advantages – the tension is the old “firstest with the mostest” as someone once said.  Given the timelag for something actually coming out it does seem that in certain areas that are moving quickly articles are almost irrelevant by the time they come out.  Of course there may be a cycling back effect that happens that makes an article timely (missed the first wave but came on the second wave).  Maybe there are authors out there who are able to think strategically with their muse like this.  I can not.

    First mover also places an advantage on one mining one subject area to death for 35 years.  You know the cites and can put them in working order quickly for any development related to that one area.  Whether what is done is interesting would seem to be another thing.

    Here is another way to think about it taking it from the legality/legitimacy discussion.  I remember having an “aha” moment on acquiescence/resistance being the real link between legality and legitimacy back in 2007-8 as I mulled Cassesse on Yugoslavia.  Then recently was shown a Richard Falk piece from 2006(?) where he seems to walk in that space.  My thoughts are preempted?  Maybe that is one way of looking at it but another way is for me to see I am walking a thought path that someone my senior has walked recently.  That is pretty cool and confirms one is maybe onto something.

    On publishing, SSRN provides a place that is intermediate, but I have understood that some law reviews do not like articles put out there (I hesitate to say published).  Once accepted, the sense is that the law reviews want the initial splash in their law review and only after that as an SSRN publication. 

    When someone is in a time sensitive environment the choice seems to be – 1) don’t sleep to get the cycle quicker, 2) get lots of delegation of work to research assistants and aggregate,  3) blog quickly and write at the muse’s pace, 4) just be absurdly brilliant, or 5) just make others think you are absurdly brilliant using your network effects.  I am in three.

    Thanks again.


  2. I found this thread really helpful (to such an extent that this thread seems truly unique) and wish it would continue – is James Tierney available for more questions by email? How about a blog written exclusively by top law review editors to keep such information flowing?

  3. Just to come back with the results.  The librarian went broader than the 50 main law journals and found 141 articles in main or secondary (international law reviews) on torture in the 2003-2006 period.  Happy to send that list along to an e-mail if you would like. 

    From what I can see in the brief perusal – none, repeat none – were about criminal prosecution of the high level people from the United States. 

    The closest was published in 2003 before Abu Ghraib broke.  Here is the cite:

    “126. C 24 Cardozo L. Rev. 2381, Cardozo Law Review August, 2003 ON TORTURE AND STATE CRIME Franz Kaltenbeck”
    Given just how hard it has been in the 2004-2011 period to get all the experts at places like here at opiniojuris to even think of the idea of prosecuting high-level civilians or military persons, and the relentlessness of the machine to have us acquiesce to torture, it just seems to me that we are somatized on question crime by American authority.  Editors and American academics  in the international law/foreign relations law field.  At most we will go to tort – not criminal prosecution.  Very heavy.

    It is like we do not have the capacity to imagine that high-level US civilians or generals should suffer for the same crimes as the grunts who were court-martialed were asked to do. 

    In fact, the omerta on this as evidenced in the article list is really quite amazing.

    This is the group think point where the sixth editor is not the problem but more that it is the five preceding editors.

    I know that people out there may think this is sour grapes but I do not think of it that way.  I published my work on criminal prosecution received tenure etc.  The point I am just trying to point up is the “groupthink” that can not contemplate daring to speak of American state crime.


  4. James, thanks so much for joining us here this week.  It has been fascinating and enormously helpful to those of in this line of work.  Thanks.

  5. This was really interesting.

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