Monday, November 10, 2014

Nightmare in Law Review Land . . . .

As some of you know, I have been a defender (although perhaps not a staunch one) of student-edited law reviews as a good learning experience for students.  I have worked with students in ways that I really have enjoyed over the years.  I also have had some lousy experiences.  But even I admit that between the overwhelmingly negative blog commentary  (to which I now add), including posts here and here by Steve Bradford here on the BLPB, and the experiences I relate here, I am having trouble sustaining my support for student-edited journals . . . .

My Expectations and Experiences

I routinely issue two instructions/requests to law review editors when I submit draft articles for staff review and editing (after solicitation or acceptance of an article).  The first is to leave in the automatic footnote cross-referencing that I have used in the draft until we finalize the article.  The second is to notify me if the staff believes that new footnote citations or citation parentheticals need to be added (specifically noting that I will handle those additions myself).  I always work in Microsoft Word.

The rationale for the first instruction/request is obvious.  How many of us like manually updating footnote cross-references each time there is a change to the footnotes?  And if you wait to the end, you sometimes cannot track the original cross-reference down without looking through all of the intervening drafts.

The reason why I issue the second instruction/request is that I have had staff members add footnotes and parentheticals quite a number of times in the past that, while somewhat in the subject-matter ballpark of the cited sentence, are inapposite to the point that I am making in the text.  (It's often obvious because the parenthetical comment the staff has inserted in the new or existing footnote plainly does not address the point in the text.)  Having done the primary research for the article, I typically can find needed citations or construct needed parenthetical comments pretty quickly.

Law reviews sometimes mess up on one or the other instruction/request.  Typically, the editor-in-chief or symposium editor apologizes and lets me know the staff will fix the cross-references or the review will give me extra time to correct the wayward footnotes and parentheticals.  Not optimal, but certainly professional.

My Recent Nightmarish Experience

Recently, a law review with which I was working on a draft article violated both instructions/dishonored both requests without notice or apology.  Here's how the process "went down," in a nutshell.

After sending in my original draft in Word, I received back a clean .pdf (rather than a marked Word) copy of the document for review several months later.  Apparently, this law review works in WordPerfect.  So, the staff had converted my Word document to WordPerfect.  Automatic footnote cross-references were lost in the process.  Bummer.

Needless to say, I had to re-read (for my own satisfaction) and cross-check every aspect of the article.  I read the text in its entirety.  The text edits the law review staff made were minimal and helpful.  Whew.  Sigh of relief.

I had my research assistant initially look through the footnotes to notify me of changes.  There were many changes to the footnotes.  One notable pattern?  Footnote references had been added to the topic sentences of a large number of paragraphs. These sentences really were topic sentences--statements that introduced the reader to the contents of the paragraph and, in some cases, transitioned the reader from the preceding paragraph.  Yet, in all but one case, the footnote citations that were added did not include support for all of the points made in the sentence and paragraph.  

On some level, I might have understood a request to insert footnotes after topic sentences using a "see infra" signal and pointing to the sources cited in support of all the remaining sentences of the paragraph--which were footnoted, as applicable.  But that seems silly.  Eventually, I did include one of those "see infra" citations--after the law review agreed to remove the footnotes altogether for the rest.

It was admittedly frustrating to not be able to edit the article in Word using the "track changes" feature.  I spent many hours pouring over and commenting on the .pdf drafts. I was concerned that, in transcribing my comments from the .pdf version to the law review's WordPerfect version, a staff member might miss a change or create a new error.  (And that did, in fact, happen.)  I  asked to see a CompareRite copy in WordPerfect after the first draft (we still have WordPerfect on our office computers, so that was not a problem for me), but it was not as immediately useful as a track changes draft.  (Lots of looking back and forth from one version to another . . . .)  Also, while I am grateful for the comment tools in Adobe Acrobat,  they are clunky in comparison to Word's track changes and comment features.

Oh . . . and did I tell you that the longest review period I was afforded on these unmarked .pdf drafts was one week?  To be fair, I asked for and was given additional time.  But during the editing process, given the extra hours it was taking me to review and comment on the drafts, my schedule was incredibly pinched (i.e., I was getting less than five hours of sleep a night).  I was so glad when this experience was over . . . .

A Colleague's Recent Nightmarish Experience

As rough as my experience was, I was baffled when a colleague shared with me his recent experience with another law review.  He turned in a stack-check draft to the journal for review and editing and when it came back, it had three times the number of footnotes as the draft he turned in!  When I asked him why, he said that the law review had answered that question by telling him that their policies provide that the staff must provide a footnote for every sentence in an article submitted for the journal--but (and this is meant to be a comfort) the editor-in-chief has discretion to remove the footnotes that are unnecessary.  Seriously?  Oh, boy . . . .

One Takeaway (and I Know There are Many More)

Other than acknowledging general discouragement with these counterproductive editorial and publication processes, it is hard to make sense out of these law review nightmares.  

Having said that, it does seem fair to note that some law reviews appear to have lost sight of the reason for footnotes.  I always have valued footnotes as support for propositions in the text that come from or rely on prior work.  I stand on the shoulders of giants when I write.  Those who have gone before have laid amazing foundations for my work.  For the reader, footnotes both enable an assessment of the accuracy and strength of a footnoted proposition in the text and indicate where one can look to get more information about the subject matter being addressed in the text.

I am sure that many of you have similar stories and additional observations on the law review process.  Feel free to leave them here in the comments.  And if you want to remind me of why I thought supporting student-edited law reviews was a good idea, that's fine, too.

C. Steven Bradford, Joan Heminway, Law School | Permalink


Great comments, and on point, as usual. I will note that peer-reviewed journals are not always better about some of these things. Peer review will usually help with levels of expertise, but not always on the process front.

One thing that continues to jump out at me is how often EICs don't get into the process earlier. As I note here:, when I was in that seat, I learned quickly that an EIC's discretion should be exercised before the author gets the article back, not after. The EIC is at the top of the heap for internal reviews, but it is ultimately the author's piece. I know it's surprising that I like my own solutions, but I do think that a lot of the process would improve if all EICs took charge of every version of an article before it leaves their shop, and not just the last version.

Posted by: Joshua Fershee | Nov 11, 2014 4:05:34 AM

My pet peeve are hyperlinks to newspaper articles and other sources posted online. Most disappear within a few months and they all look really ugly, even the ones that aren’t a jumble of letters and numbers. Yet even the best journals insist on adding them.

Posted by: Urska | Nov 11, 2014 5:09:33 AM

Thanks for sharing, Joan, but sorry for your experience. As someone who takes deadlines very seriously, I have been upset by the number of law reviews that miss their planned publication dates. One journal missed their planned publication date of my article by more than six months without good reason. A number of other journals slipped by a month or two, which is more understandable, but still unprofessional. Sadly, it is difficult to keep these law reviews accountable because the editorial boards change every year. Perhaps the law review advisors should be more involved than they often seem to be? I am in the middle of publishing my first traditional peer-reviewed article and so far the experience has been excellent, but I have heard problems on that side as well.

Posted by: Haskell Murray | Nov 11, 2014 5:24:31 AM

Josh, I appreciate your helpful additional thoughts. You and Haskell both admit that per review journals may have their own process issues. I am sure that's right., There always are agency costs in having someone else edit and publish one's work. And I can live with that. But at some point, those costs become too high. I came close to my breaking point during the recent experience I relate here.

I also appreciate your point on EIC involvement, Josh. Oddly, the EIC of the journal featured in my post was involved with me early in the process of the issues I was having. I just got the sense that this editor and editorial board were so intent on meeting publication deadlines that they did not care what the work product looked like in the end. The reputational costs for me may be higher than they are for the law review, especially given (as Haskell notes) the annually rotating editors and staff . . . .

Of course, as Haskell also notes, the reverse problem--not adhering to deadlines at all, also is a big issue. I have found most times that it is not the students' fault on these delays--at least at the outset. Many of our colleagues hold up publication processes for law reviews. When my mother was dying, that was me holding up others. If I fault students for anything in those cases, it's not asking for the author's permission to move the article to a subsequent book.

Urska, I, too, am bothered by busted internet links in articles. Ironically, the journal that created the issues for me that I relate in my post has "fixed" that issue to some extent by taking all Internet sources and downloading them onto its own server and creating permalinks to the downloaded versions. Interesting. Although I couldn't check the links on the last draft I had because they were not yet operational.

Thanks to all for these comments.

Posted by: joanheminway | Nov 11, 2014 6:37:37 AM

I hate to complain about law review student editors. They don't get paid; they are juggling several other, arguably more important law school and personal obligations; they are relatively inexperienced in academic writing; and they almost always are acting in good faith.

Still, a recurring pet peeve of mine is when student editors add an explanatory parenthetical to every single one of my "See" or "See, e.g.," citations that simply restates, in the editors' own words, what I've already said in the main body text corresponding to the citation. Such parentheticals don't really explain anything-- they're needless and a waste of student time and effort. (Plus, they needlessly bulk up the footnotes and add visual clutter.) I end up striking all of these additions, regretting the time a student somewhere spent trying to come up with a different way to say what I've already said. Joan's second instruction-- which I will be adopting going forward-- seems like a great way to prevent or, or at least, limit this problem.

One problem I think with the current law review system is that the faculty of the host school are not more involved in the school's law review, to instill continuity, professional norms and best practices.

One final comment: I have had the opportunity to publish shorter works twice now on online publications. Compared to traditional print publications, the editorial process for the online publications was in both instances quick, not nearly as intrusive, and, I felt, sufficiently in-depth to add value to the final product. In both cases, the experience left me to wonder, Why can't the traditional publication process be like this? I don't have a good answer to this question.

Posted by: Mohsen Manesh | Nov 11, 2014 12:10:33 PM

Mohsen, I have had the same experience with explanatory parentheticals (in addition to the issue I describe in the post). Very frustrating. Those types of unnecessary edits are, in fact, part of the reason why I give the instruction that I give to the editors.

You and Haskell both mention a healthier relationship between faculty advisors and journals. I know that Haskell was a law review faculty advisor. I also know that he was more significantly involved than many others with whom I am acquainted. I do think that would help.

You also raise an interesting point about online publications. That's a separate issue worth exploring in more depth. I have not had experience with that, but perhaps others on this blog have . . . .

Posted by: joanheminway | Nov 11, 2014 12:27:25 PM

I will let the typo that appears in the first page of a recent piece, the fact that page proofs were not sent to me, and that the journal hasn't returned my call requesting to speak with their faculty adviser serve as my horror story on the law review front (Short Road Home to Delaware reviewing the Chevron case appearing in the Journal of Business, Entrepreneurship and the Law as an INVITED piece). In fairness though, most of my journal experiences have been very good. But when they are bad, like this, they are very bad.

Posted by: Anne Tucker | Nov 12, 2014 8:27:27 AM

OK, Anne. You have me beat. And with far fewer words . . . . :>) Thanks for sharing.

Posted by: joanheminway | Nov 12, 2014 11:39:12 AM

My non-law academic friends are bewildered that US law academy doesn't operate in the same peer reviewed world that they do. They have to spend significantly more time contributing to the editorial process but it probably has its rewards.

Posted by: Jenny Sheridan | Nov 12, 2014 6:07:56 PM

Jenny, I am not sure if my non-law colleagues spend more time. Many law professors spend countless hours reviewing the work of their peers -- and they do it without the credit of serving on an editorial board. I do think we should have more peer-reviewed law journals, however.

Posted by: Haskell Murray | Nov 12, 2014 7:31:20 PM

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