Thoughts on Innovation in Law Review Publishing (Part 2 of 2)

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 will appear in the print volume this fall.  My essay Beyond Guantánamo, Obstacles and Options, 103 Nw. U. L. Rev. ____ (2008), because of the timely topic, needed to be distributed immediately to have an impact on the scholarly 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.

MOVING TO ROLLING SUBMISSIONS AND ELECTRONIC PUBLICATION (WITH PRINT TO FOLLOW)

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.