Thursday, April 26, 2007

Law Professors' Annual Publishing Mating Ritual

Just as spring is the time when all young mens' thoughts turn to love, spring is the (optimal) time for law professors to send out the academic articles they've been working on during the prior year to student-edited "law reviews" for publication, since that is the time when the journals change their editorial boards and have a clean slate of open spots in the 4-6 editions they'll publish in the upcoming academic year. It's all about supply and demand.

So the mating dance goes like this: profs/authors send their articles out en masse to 25, 50, or even 100 journals from the 170+ American law schools; then, as they receive an offer (or, they hope, offers) sometime over the coming weeks, which they typically must accept or reject within one or two weeks, they attempt to leverage the offer(s) by requesting "expedited-review" from law reviews at the more prestigious law schools.

Some criticize the legal academy's practice of placing publication/editorial authority in the hands of students as inappropriately allowing the inmates to run the asylum, so to speak, but overall the positives outweigh the negatives. It's a good thing, from a freshness/innovation standpoint, to have a continually-changing group of bright people reviewing legal commentary instead of a staid establishment that may be reluctant to test its own comfortable boundaries.

Anyway, my own contribution to this year's publishing ritual, an essay with the suitably-obtuse title of "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests," essentially further develops the basic gist of much of what I've spoken of in earlier postings to this blog. The full article is available at, and is summarized in the following abstract:

"This essay suggests that the American legal system fails to do proper justice to the robust conception of Liberty under which the nation was founded, and locates a major source of the problem in the Supreme Court’s current presumption-of-constitutionality approach to judicial review, prompted by post-New Deal backlash to Lochner v. New York. This essay offers a new due process clause-based presumption-of-liberty standard of judicial review, modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine. This approach, already utilized narrowly by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately reflects the Constitution’s core Liberty-First ideals, while also recognizing the proper police-power role of government."

We'll see how the dance goes this year - stay tuned.