“Thoughts on Innovation in Law Review Publishing” Flashback Time

Over at PrawfsBlawg Jen Kreder authored two posts about publishing in on-line law reviews (her contributions are here and here). In light of that I thought I would repost my 2008 two-part blog post entitled “Thoughts on Innovation in Law Review Publishing” recounting my own experiences and some thoughts on the future direction of law review publishing. As a short add-on to that post and what Jen wrote, my experience with Northwestern was simply great. I also learned through my conversations with the editors that their standards for accepting articles in their on-line issues is the same as their print issues, the only difference is length. Thus, at least for Northwestern, it is not easier to get a Colloquy essay accepted for publication —they apply the same standards, it’s merely easier to write a short piece (but that’s true no matter where you publish it). There is a small distinction to be drawn here though, Northwestern will publish Colloquy essays which are the primary piece, and then shorter Colloquy responses (approximately 1,000 words), I’m not sure what the editorial standards are for the responses. In any case, my original posts on this topic appeared here and here. I’ve pasted the full piece below:

PART ONE

My recent experience publishing a colloquy essay with the Northwestern University Law Review got me thinking about innovation in law review publishing. This first post will describe my experience and impressions as reflected by the Northwestern model, a follow up post will detail some of my thoughts on how law review’s can easily build on current innovations.

My essay, Beyond Guantánamo, Obstacles and Options deals with the military commissions, a timely subject with rapidly changing law. Because of this I faced some publishing dilemmas. My draft was regular essay length (30+ pages 130+ footnotes), but was also too timely to wait for a law review issue to be printed. Given the work I put into the essay, I didn’t want it to sit in SSRN or BePress hoping for a cite or some attention via listserv. It was too long to blog, and I didn’t want to relegate it to a “less prestigious” (whatever that means) publication by accepting any offer I could find based solely on timeliness. As I tried to find a home for my essay, I thought that The Northwestern Law Review was innovative enough to accommodate my needs. Exploring their website I found that they have a feature known as “colloquy” essays, which follow the same editorial standards for acceptance into the Law Review (a big hurdle) but are published as soon as editors complete their cite-checking and BlueBook review. What that meant was if I could get accepted, I could publish my thoughts while the legal and policy debate was still underway.

The problem… those timely essays are limited to 3-4000 words inclusive of footnotes. The editors goals were timely pieces which were also shorter than the standard law review essay or article. My work, while meeting the timely test was more than triple the maximum length. Luckily, the editors were flexible and innovative. Because my topic related to an ongoing debate, they stretched their rules. That allowed for immediate publication of my essay (after editorial review) on the Northwestern Law Review website, along with possible publication in the completed print issue later this fall. I still have to wait for the final page numbers, but I have a citation that other scholars can rely on Gregory S. McNeal, Beyond Guantánamo, Obstacles and Options, 103 Nw. U. L. Rev. ____ (2009) (it’s supposed to be published in the print edition), a parallel citation in the on-line edition 103 Nw. U. L. Rev. Colloquy (2008), and more importantly the ideas are out there as part of the dialogue.

There are some other cool features that the Northwestern Law Review includes with their webpage. First, are open comments below the essay. What this means for me is no delay between publication and knowing just how wrong someone thinks I am….:-) But seriously, what it means for other scholars is that they can immediately respond to my thoughts and link to their own related scholarship. Bloggers can blog on their own site about my essay, and can preview their thoughts in the comments, dropping a link to their own blogs. All of this makes for an interactive dialogue, which is really what scholarly debate should be about.

In the spirit of scholarly debate, Northwestern will also host a series of “colloquy posts” where other professors will write short response essays about my work. Those essays, which will only appear on-line,will be indexed in Lexis and Westlaw. (Prof. Ben Davis’ response to my essay, entitled No Third Class Process for Foreigners, will be featured on the Northwestern Law Review website in the coming weeks. He has already posted it in SSRN here. Other confirmed participants include Prof. Amos Guiora of the University of Utah, Col. Morris Davis, former Chief Prosecutor in the Office of Military Commissions, and others.)

What really struck me about going through this process was how much sense it makes, and how innovative it is. Now granted, being timely meant I needed to turn around responses to the editors quickly (for most edits I was responding within 24 hours or less, even on a Friday night). But the editors comments were extremely helpful, and their preference for links to on-line sources (which they include in the Footnotes of the on-line version) will mean that other scholars can instantly trace the authorities I relied upon and integrate them into their forthcoming scholarship.

Moreover, the timeliness of their system, the indexing of response essays, and open comments all seem to be great examples of a potential part of future of legal scholarship. For legal scholars seeking to write about on-going developments in rapidly changing fields, a print venue supplemented with early and rapid on-line publication is a valuable asset. When one considers that Beyond Guantánamo, Obstacles and Options deals with the law and policy related to: detainee cases that are currently working their way through the D.C. District and Circuit courts; the ongoing scholarly debate over the future of Guantanamo, the expected appeal of Hamdan’s military commission conviction; and the ongoing hearings in Congress— the system Northwestern has in place demonstrates how law reviews can provide a forum for timely scholarship that aims to have an impact beyond the halls of the academy.

Of course, all of this got me thinking. Why would any law review wait until they build an entire issue before making the .PDF of an article available on line? It seems allowing the publication process to be driven by when an issue is “full” is an unnecessary limitation in this age of .PDFs, blogs, and print-on-demand. While having a printed issue and reprints is nice, and perhaps required by some, that technical limitation shouldn’t define the publication process.

In a post tomorrow I’ll share some thoughts about how electronic publication and print publication can be reconciled…thoughts which I’ll keep to myself for now, given the length of this post.

PART TWO

On Monday, I blogged about my recent experience publishing with the Northwestern University Law Review. In particular I highlighted the advantages of their simultaneous print/on-line publication process, which features early, on-line, open access distribution of my essay which should appear in the print volume this fall. My essay Beyond Guantánamo, Obstacles and Options, needed to be distributed immediately to have an impact on the policy debate.

This process got me thinking about the law journal publication calendar, which seems dominated and limited by the concept of “filling an issue.” In short, despite the advent of the world wide web as a means for distributing scholarship, with services such as SSRN and Selected Works, law reviews still seem bound by the limits of paper. Publishing and distributing scholarship based on when a print issue is full is not only ineffecient, it also leads to serious delays in the impact of legal scholarship. Below I detail some thoughts on how to break out of the paper driven model, while still maintaining print journals.

Law reviews should accept articles on a rolling basis, publishing them in electronic format as they are completed. Under the current system most law reviews accept articles during submission cycles and accept a set number of articles until their issue is full.  This process results in a massive influx of articles to journals based on an arbitrary system wide submission date (for details about the process see the ExpressO submission guide here, here and here.) Journal editors are left to sift through thousands of submissions in a short period of time accepting based on their expected editorial resources and page limits in an upcoming volume.

What law reviews should instead do, is accept articles throughout the year based on editorial availability (e.g. available workers). The law reviews should establish their own guidelines for when they will accept submissions (not driven by a system wide calendar). In fact, I believe it is in a law review’s best interest to accept submissions year round because it may allow them to publish articles by notable scholars whom they otherwise may not be able to publish if limiting themselves to a regimated calendar dominated by expedite requests. For example, if Orin Kerr finishes his next groundbreaking piece (of many) in 4th Amendment jurisprudence or Computer Crime Law, should he really have to wait until a pre-determined submission date to publish it? Moreover, should a law review miss out on the opportunity to publish his work when they could accept it and publish it now if not for an arbitrary closed submission window? Given Orin’s prominence a “decent” law review who could publish his work today may lose out in an expedite fight during the regular submission calendar.  It seems the system doesn’t benefit authors or journals.  Now granted, Orin isn’t your average scholar, and as such he has options. He can wait, post it to his SSRN (and still get cited), while blogging about it at The Volokh Conspiracy where he’ll build the article’s reputation (and be able to incorporate helpful critiques). Moreover, because he is well known and writes brilliant theoretical scholarship, he may stand a good chance of landing an off cycle acceptance. But, in the absence of an off cycle acceptance he’s left to wait for formal publication, a formal citation and inclusion in the Westlaw and Lexis databases. The system is just as bad for the average scholar with a calendar and process that are arbitrary and counterproductive.

With new technology it doesn’t have to be this way. It is a fact that some articles will take longer to edit than others. Some authors will quickly respond to editors comments, will have well written work with little need for edits, while other authors may take a long time to respond to comments, and may need some major (unforseen) revisions due to changes in law or author mistakes. These factors suggest that some well written or short essays may be quickly edited and prepared for publication while others may take a long time to complete. If law reviews developed an innovative electronic and print distribution system they could publish articles when completed and open their submission window based on editorial availability. This would allow law reviews to allocate work effort based on needs, dedicating editors to work on troublesome accepted work or using available editors to work on new submissions. In short, publishing and editing would be driven by available workers, not page limits and arbitrary deadlines.

The transition to such a system would require some work on the part of law review editors to modify their processes. Once they set in place new editorial work flows they could announce their new year round (or whatever they choose) submission model. They could open and close their submission availability (as announced through ExpressO) based on editorial availability, not pages in an issue. When edits are complete, law reviews need merely to paginate the completed work as it will appear in the print edition, provide an expected volume number and citation, create galley proofs, and publish those works immediately in electronic format on their website, providing the .PDFs to authors for distribution via SSRN and Selected Works.  To placate the old timers who are averse to electronic only publications, law reviews should allow authors to immediately order reprints of their individual article. Of course, once the issue is “full” editors can follow up with the reprint of the entire issue.

I’m guessing there are some details I’m missing in this proposed plan. One obvious issue is the cost to print an issue. Some law reviews limit the number of articles they accept based on issues and volumes, which may be driven by their publication/subscription budget. I imagine that this can be modified by creating a variable pricing scheme with library subscribers (who are really the only subscribers to law reviews).

Also, depending on staff size it may not be feasible for all law reviews to adopt this model, and some editors may bristle at the thought of editing multiple articles in an academic year. However, those law reviews which are capable of moving to this model may very likely increase their efficiency, timeliness, and perhaps quality of published authors.