Friday, October 11, 2013

Adventures in New Forms of (Legal) Academic Publishing

Mark Tushnet

A couple of weeks ago I attended a (very good) workshop on "The New Religious Institutionalism" at DePaul Law School. For the workshop I wrote a short paper, "Do For-Profit Corporations Have Rights of Religious Conscience?" (For the curious -- I provide no crisp answer, but identify a number of considerations suggesting that large public corporations shouldn't, and that even large privately held ones shouldn't. But, for reasons that will appear in a moment, I'm not providing a link to the paper.)

Papers dealing with this general issue are appearing on SSRN at a rate of about one or two a week, and the issue is going to reach the Supreme Court this Term. My paper was too short for publication in print law reviews, and their timeline for publication is too long anyway. So, what to do?

I revised the paper a bit after the workshop and, just before noon last Tuesday, I sent it electronically to four on-line "companions" to standard law reviews. (My research assistants had identified about 25 such companions, and my paper didn't fit the criteria for the others -- too long, too heavily footnoted, not responding to something in the review's print edition, and the like.) On Tuesday evening I received an exploding offer from the Cornell version -- and props to them for their promptness. After waiting until Wednesday afternoon to see if any of the other three would respond, at around 5 PM on Wednesday I accepted the Cornell offer and withdrew the paper from the other reviews. The paper is scheduled for "publication," if that's the right term, in November.

The on-line law review is an interesting development. (I've published in the online versions at Texas, Iowa, and two of the Harvard journals.) As my story indicates, it offers the possibility of both prompt acceptance and prompt publication/distribution. I do have some questions about the development, though. For example, is publication in an on-line review likely to review more attention -- from one or another audience -- than distribution via SSRN? I have another paper, on the Stolen Valor Act, available only on SSRN (because no standard law review to which I submitted it was interested in publishing it), and citations to it do continue to pop up. Will the Cornell on-line publication get cited? And if so, by whom? And, for junior scholars, how are tenure committees going to deal with publication in on-line companions?

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