.................. ....Legal Scholarship Blueprint
..............50 Journal of Legal Education 431 (2000)
..............................William R. Slomanson
...................© Association of American Law Schools
...................HTML reprint with permission of AALS
....................................

A quintessential Scalia dissent recently chastised the majority for spawning the perception that the U.S. Supreme Court is a "nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy."[1] I offer this article, and direct it particularly to junior faculty, to minimize the evolution of any similar perception about the scholarship portion of the tenure process.
.....No source comprehensively addresses the broad range of career-defining scholarship issues affecting survival (tenure) and notoriety (posttenure), and the important housekeeping decisions that will affect your career.[2] Anecdotal advice is thus a rather precious commodity. Its broader dissemination to pretenured faculty will promote a better understanding of the expectations, ethics, and etherealness of tenure scholarship.
.....This article neither encourages nor discourages scholarship. Nor does it add much to the existing literature about the "why" of scholarship, what constitutes "good" scholarship, and whether scholarship makes you a "better" teacher. It does acknowledge the following reality: there is no one-size-fits-all blueprint. There are pervasive variables, however, which one should not ignore. Rookies might otherwise happen upon sensitive, quality-of-life issues after the point of no return. Like a construction project without a blueprint, the pursuit of tenure without a scholarship plan invites failure. By posing strategic questions, I hope to arm some modern gladiators in their quest for a scholarly thumbs-up in the tenure colosseum.

...............................................................The Core Decision
What do you want to accomplish with the scholarship ingredient of your professional career? Were you to pose this question to your more experienced colleagues, any candid reply would acknowledge the so-called teaching-versus-scholarship debate-one of the most persistent and vexing issues in legal academia. I will venture into troubled waters by suggesting that the role of scholarship is misunderstood, or at any rate that law teachers have varying understandings of the raison d'être for legal scholarship.
.....An April 2000 e-mail message thread on the LawProf listserv suggests a root problem. Members were debating a proposed dual law school track, whereby the more prolific scholars would teach fewer hours. One member wrote:

I, for one, feel that the purpose of a law school is to teach law, not to sponsor or produce legal research. . . . If you want to do research, join a think tank. If you want to teach, join a law school. That, perhaps, is why they are called "schools" instead of legal research and writing centers.[3]

.....This perspective aptly questions the traditional requirement of excellence in three areas: teaching, scholarship, and service. Your institution may actually require excellence in fewer categories. Or its strategy may be to divide your job into its component categories, to minimize the number of tenure decisions required by the traditional educational model.[4]
.....A counterproposition to the supposed triangulation of excellence underlies the question "why law professors must make scholarship their single most important task."[5] Rarely cited institutional guidelines shed light on this debatable point. The AALS Statement of Good Practices provides that "law professors have a responsibility to engage in their own research and publish their conclusions."[6] The ABA Standards likewise address scholarship. A law school must "have a faculty that possesses a high degree of competence, as demonstrated by . . . scholarly research and writing."[7] Those standards define a full-time faculty member as one who "devotes substantially all working time to teaching and legal scholarship . . . and whose outside professional activities, if any, are limited to those which . . . enrich the faculty member's capacity as a scholar or teacher . . . ."[8] Furthermore, each law school must have a policy which addresses "[r]esearch and scholarship, and integrity in the conduct of scholarship . . . ."[9]
The academic literature also addresses the law teacher's scholarship responsibility.[10] The common perception is that scholarship ranks first at upper-tier schools, teaching first at others. Put another way, we are all good teachers, but tenure is not necessarily determined by teaching accomplishments. One reason is that evaluating teaching is arguably more subjective than evaluating scholarship. A number of schools effectively delegate this part of the tenure evaluation process to the law reviews: you either publish or you don't, and the more publications, the better. Some schools may rely heavily on external scholarship review.[11]
.....So where do you need to be in the scholarship debate? Know that new scholars are bound by local rules, a.k.a. "the tenure plan." If you are at least aware of the philosophical disconnect within our ranks, you will not be unduly surprised should you be exposed to conflicting assessments of the role of scholarship, and you will be better equipped to enter the fray. In other words, you have to be a scholar. So do it thoughtfully--something I managed to avoid at the outset of my career.

........................................................Macro Blueprint Decisions
............................................................Charted Course or Adrift?
Is your next publication affiliated with any particular blueprint? This question presupposes the need for a career-enhancing game plan. Your background, personal/professional interests, fate, and dumb luck will all play a role. My own history may be instructive.
.....I began my professorial scholarship with a dual track in mind, one rail being my practice experience (civil procedure), the other being in my area of special interest (international law). I did not have a blueprint, however. I had written four articles on international law as a law student, but I had no clue about topic selection when I began to teach. No one at my (then) school volunteered scholarship tips, and there was no faculty scholarship committee. I then made a decision which I still question to this day: to write a substantive torts article, based on a burning issue which appeared during the last year of my law practice. One could argue that I did exactly the right thing with that first article: I pursued a topic that had ignited my passion. Alcoholics Anonymous ordered 800 reprints. On the other hand, a torts article did not fit the dual track that I ultimately pursued. Better to find a topic that sparks your passion while keeping you on your chosen track.
.....After that first article, I decided to institute a game plan which would help me master my bar subject, civil procedure. I had a passion for the practice-oriented features of legal education, which years later would ripen into a multibook project in state civil procedure. But how did I get there? My initial scholarly blueprint had a six-part structure. I would attempt to publish a law review article in each of the six parts of my course, which is routinely taught on a six-phase time line. I knew that the same approach would not work in my elective course; international law was too unwieldy for such a plan. There was an advantage in choosing two mildly related scholarship arenas: I had the option of later filling some interstitial gaps between them.
.....Tenure considerations, institutional restraints, and other stumbling blocks may impede your progress. As one pretenured teacher said to me at a recent conference: "I would really like to write on [topic X], but I can't. It will not be considered solid doctrinal scholarship by the tenured faculty." Her scholarship glass could be perceived as either nine-tenths empty or one-tenth full. Such hurdles need not preclude you from formulating a tentative game plan and plotting a scholarly course that may require later adjustment.

.......................................................Specialist or GP?
Should you publish in just one area? If you asked any three colleagues, each would have an immediate-and different-answer. If I were starting over, I would carefully consider some of the following options.
.....First, you might choose to publish only in one area. I know someone who is a midlevel scholar, in terms of career development. He has published numerous articles on the same topic. Although that approach suggests a narrow perspective, he is nevertheless a rising star who will no doubt become a guru in his field-much sooner than if he had branched out into other subtopics in that area, or into the quite different area which is his primary teaching responsibility.
.....Another option is to go wherever your interests take you. That sounds attractive, but a structure built with no blueprint may have cracks in the foundation. First, assess whether your local tenure plan really offers this option. Some schools want to predict, at the close of the tenure-track period, whether you will be a leader in a particular field. Branching out could be disastrous.
.....On the other hand, scholarly diversity may work for you. The world-renowned scholar who has published in multiple areas is the exception, not the rule. Drawing from my own experience: I would ultimately write in four distinct areas. The longer this list became, the more I questioned whether I was doing it right. Had I published exclusively in just one of those areas, this might not be the first time that you read my work. (But I would not have been able to write this guide for wayward scholars.) My temperament dictated a diversified topic selection. The downside to this shotgun approach is having to become a putative expert in numerous branches of the law; keeping up with reams of unrelated literature; and attempting to reinvent many wheels. If I had chosen, instead, to write in only one area, I would no doubt be writing this article in a very different institution.

..............................................................Through Thick or Thin
.....What type of publication should you produce? One general list of priorities divides legal writing into four broad categories, in ascending order of worthiness: practice-oriented materials (bar journals and manuals); academic short subjects (essays, book reviews, and brief case notes); law review articles; and books.[12] A more specific breakdown is offered to Northwestern faculty by the school's dean, David Van Zandt: "I tell all faculty that I rank the following vehicles in descending order of impact-university press and peer-reviewed monographs; peer-reviewed academic journals; student-edited law reviews (ranked by prestige); treatises; casebooks and teaching materials; substantive book reviews; and op-ed pieces."[13]
.....If you are dreading the process of getting your first law review article into print, remember that everyone can get an article published somewhere. It is a function of Economics 101 supply and demand. More than 800 law reviews are competing for reasonably intelligent copy. Unlike scholars in any other country, and unlike any other teaching faculty within the university, most law professors have their articles published by student-edited law reviews. In other departments of your university, this seems outrageous. It is also a reason for your tenure committee to submit your articles to outside reviewers.
.....In my opinion, book reviews, newsletters, and newspaper columns are best left to tenured faculty. If the pretenured teacher is clear about local publishing expectations, there may be room for such writings. They do help the institution's image. But they rarely count toward the minimum requirements for tenure. Do not overlook the occasional book review, however, as a method for building a personal library. You might start your own newsletter, or volunteer to take over an existing one, for a professional organization aligned with your interests. Then you can solicit publishers for books that will be close at hand for future writing projects.[14]
.....You should probably avoid the epic track until you have tenure. You may dream about writing the Harry Potter of legal education, but that could mean placing every egg into one tenure basket. A book-length legal analysis will have a book-length impact on frequency of publication. You may not have adequate time to write a book that will be a significant contribution to your tenure portfolio. This is one of the reasons for the quantitative primacy of the article, rather than the book, at both the pretenure and posttenure stages.[15] You should also be aware that some decision-maker might consider a book to be less scholarly than an article. For example, there may be a local culture which is more concerned with whether the author is receiving royalties than whether the book is promoting the school.
.....If you work only on a book during the pretenure period, there is nothing else to fall back on when making your case for tenure. Think about whether it is wise to tote a publisher's deadlines during that pressure-packed period. (Disregard this advice if you thoroughly enjoyed preparing for the bar examination.) I mentored a recently tenured teacher who did write a book during the tenure-track period and offered some advice (via e-mail), beginning with the concern whether the faculty will require either that a book be published or that the professor have an actual contract. In my case, I was fortunate because the faculty was willing to "count" my book even though I did not yet have a contract.
.....I have also learned that a book requires a very long lead time and that the review process is excruciatingly slow. A big problem is that book publishers are unwilling to review a ms. that is being looked at by another [book] publisher-so simultaneous submissions are out of the question. In the meantime, a single publisher may have a ms. out for review for six months or longer. If the ultimate decision is negative, then the author must begin all over again.
.....On the other hand, I feel that working on my book was a great educational experience. It allowed me not only to explore a subject of interest in great depth, but to learn a lot about the publishing world. And I think that the tenured faculty was ultimately impressed that I would take on, and carry out successfully, such an ambitious project. Other tenured faculties may similarly support a young scholar who embarks on writing a book. Having a book (or at least a book project or contract) as part of one's portfolio may be looked upon as a distinctive credential and a very persuasive indicator of academic potential.

...................................................................Topic Selection
What should you write about? Listing all the relevant variables would require a book-length response. This particular piece of your scholarship plan dictates consideration of at least the following: the local politics of tenure, faculty perceptions of what constitutes "analytical" writing, and the wisdom of writing in a nontraditional area before achieving tenure.
.....Pretenured faculty should first assess where their school fits in, in terms of "prestige." This euphemism for conjecture can influence minimum expectations about frequency of publication and quality-versus-quantity decisions. A school requiring a comparatively high number of publications for tenure cannot reasonably expect each article to be divinely inspired. Tenure-track faculty may thus be motivated to produce some smaller pieces rather than one lengthy one. I know someone who could have achieved tenure earlier, had her lengthy first article been divided into two publications. Furthermore, scholarly expectations vary among schools with different histories. As one dean has said, "scholarly expectations for faculty could be expected to be a controversial issue at many relatively young schools. There are quite a few senior faculty who were hired in the early years of their law school [careers], when publication was not expected."[16]
.....Ascertain expectations. Is a precise minimum number of publications required? Does your school expect to predict, at the end of your tenure-track period, whether you are likely to become a leading scholar in your chosen area? Are you expected to publish in just one area? May you publish in a backwater area, populated by only a few scholars? Will your salary and tenure posture be enhanced by writing that has a significant public policy impact? Is there a local preference for empirical work? Does your school tend not to answer such questions in advance, presumably giving you more latitude in topic selection?
.....You should be aware of the potentially political nature of topic selection and the resulting perception of the scholar's work product. Arthur Miller has argued that law review objectivity is impossible, because of the lawyer's inalienable commitment to advocacy.[17] Kenneth Lasson notes: "Legal scholarship is largely illustrated by the law reviews which, conversely, both contribute to and reflect the value system by which the academy is governed."[18] David P. Bryden writes: "Innocent idealists do exist, but we know that most legal scholars are motivated primarily by the usual human desires for security, status and income. We also know that all institutions tend to be governed in ways that advance the interests-or at least do not seriously disturb the interests-of the governors."[19]
.....There is the related debate about what constitutes "analytical" writing. You should first canvass local expectations, to be sure there are no prejudices for or against a particular type of scholarship. Assume, for example, that a brilliant scholar pens an article about scholarship. It becomes the Holy Grail for new law teachers throughout the nation. It would not count for tenure purposes, however. What self-respecting tenured professor would dream of writing an article that is virtually devoid of doctrinal content? The pretenured scholar must avoid such nontraditional topics. Of course, what is "traditional" may be in the eyes of the beholder. You should discuss this point with an experienced faculty colleague, a personal mentor, or a dean-to avoid dashed expectations at the point of no return.
.....Traditional wisdom counsels against topics involving the practical aspects of law practice. The leading thou-shalt-not is the production of "[p]ractice-oriented materials for continuing legal education, bar journals, and practice manuals. This may include digests or summaries of recent opinions or cases being litigated."[20] On the other hand, shunning such materials undoubtedly widens the oft deplored chasm between law school and law practice. This choice must depend on the local scholarship expectations.
.....Law faculties also tend to avoid empirical research, notwithstanding attempts to elevate its stature.[21] Such work is considered avant garde because it eschews "inherent flaws in the way in which law professors learn to be legal scholars that inhibit the broadly based behavioral studies we would all like . . . ."[22] Interdisciplinary research is an environment rich in hot topics-especially with the advent of the World Wide Web.[23]
.....One final comment about topic selection: all scholars would benefit from digesting the emerging literature by minority law teachers on scholarly writing.[24] Advocates believe that we would remain frozen in the most dangerous form of conservatism if we did not dig in, and evaluate, the claim that the contributions by scholars of color are often ignored or undervalued. Taking account of diverse voices is both an intellectual and a moral imperative.[25] Put another way, if the ingrained demand for doctrinal content continues, will law reviews really reflect the democratic ideal of providing a forum for all voices?

........................................................Institutional Topic Resources
Your school may have, or be motivated to launch, a faculty scholarship program. Members of my school's faculty organized a roundtable lecture series involving a number of law schools in the area. Several times throughout the year we gather to hear a presenter from one of the faculties discuss a scholarly project. This is an opportunity for the presenter, often a pretenured teacher, to get feedback on a work in progress in a supportive atmosphere.
.....Scholarly conferences can also be helpful to the novice. For example, the Central States Law Schools Association hosts an annual scholarly meeting. The agenda consists of presentations and reviews of works in progress, as well as informal talks on various topical issues.[26] You can find out about upcoming conferences through mailing lists, listservs, and topic-specific Web forums.[27]
.....One trick of the trade is the quite acceptable double-dipping technique: present a short paper at a conference; publish it in the resulting symposium issue; expand it into a new (and, of course, quite distinct) article which you publish elsewhere; write other articles in the same area; and then, possibly, collate your evolving ideas into a book chapter or book.

....................................................................Other Players
You should get some scholarly ducks in order to support your project. Mentors, research assistants, reference librarians, article reviewers, and coauthors may all have a role in making your article not a job but an adventure.

.........................................................................Mentors
The term mentor means different things to different people. My school has a mentoring system whereby each pretenured teacher has a two-person committee available to provide guidance on teaching, scholarship, and service. An external mentor can also be quite helpful, especially if your passion will be nontraditional scholarship. But do not sidestep any internal mentor, who is more familiar with your local tenure plan.
.....You must decide whether an external mentoring relationship suits you, and how to establish it. My mentor was Jack Friedenthal. I did not know him. I knew of him, and I paid him a surprise visit. I had decided that I needed advice about how to teach, during the summer before I began teaching. I ultimately received something more important-scholarship advice which would minimize my faux pas.

..................................................................Research Assistants
How should you use student research assistants? Law teachers take various approaches. My preference is to have two research assistants working on the same project: one to write it, and the other to explain it to me. Faculty traditionally hire their own research assistants and remunerate them via paycheck or independent study course credit. Some others rely on library-supervised research assistants-a handy research pool, supervised by the library rather than the faculty member.[28] Which alternative works best will depend on how you tend to deal with people generally.
.....There are obvious abuses to be avoided. I personally know a (former) professor who relied on his research assistant to completely research and write his article. At the last minute, after the student complained, he changed her status to coauthor. I know of another instance where the student and the teacher did roughly an equal amount of work on an article. Whether this was a coauthor relationship was not clarified at the outset. Over the student's objections, the teacher decided not to add the student as a coauthor. That had a negative impact at all levels of the law review. The teacher should have defined the relationship in the beginning.
.....My personal approach has always been to use research assistants only for closely supervised busywork. No doubt I have missed opportunities for reducing my workload. This advice does not preclude having a student read your draft for comments. But that student will probably not be as helpful as wisely selected peer reviewers.

..................................................................Reference Librarians
I would be remiss in my objective of helping new scholars if I failed to mention reference librarians. Be sure to take your RL to lunch, early and often-not to mention a thank you in your published article.[29] Research assistants are not as adept as a professional librarian, who is specially trained to apprehend the truant article, cite, or interlibrary loan book. Although RLs are only too eager to assist the faculty, they are often underutilized. Do not overlook this resource-especially during crunch periods, when your research assistant may be more concerned with finals than with your magnum opus.

...........................................................................Reviewers
Should you engage in vetting? Prepublication review? Dispatch post-publication reprints to all points on the compass?
.....Vetting is the somewhat derogatory term for acknowledging supposed contributors who have not seriously considered an earlier draft. This is sometimes employed as a back-scratching device. Vetting has become "a serious industry that can elevate a person's career, reputation, and salary."[30] Vetted articles would presumably carry more weight with a tenure committee, or a dean conducting an annual merit review. In disciplines other than law, a manuscript that has not been reviewed by peers is typically discounted for pay, promotion, and tenure purposes. In our discipline, preview by authorities in the field provides an optional layer of feedback and credibility for articles that would otherwise be managed exclusively by students.
.....Carefully selected personal reviewers can give you, and ultimately your readers, their precious time to improve your draft. I urge you to consider the value added by soliciting and digesting comments from people you know and respect, if they are willing to engage you in a dialog about your work. I foolishly avoided this form of prepublication review early in my career, for the usual egotistical reasons.
.....There is also the junk mail factor. Some scholars send reprints of articles to utter strangers for the express purpose of inviting postpublication comments. Imagine the recipient's eyes rolling if you send your article not only to a stranger, but to someone who does not teach or write in your field.
.....I welcome reprints from people I know, regardless of topic. When a stranger sends me an article in one of my subject areas, I view it as an appropriate vehicle for keeping current. I have even cited some of these unsolicited articles. Receiving unsolicited reprints is a reasonable price to pay for being included on subject-specific lists, such as those in the AALS Directory of Law Teachers. But I cannot even grudgingly accept articles from strangers who do not inhabit my academic domain.

...........................................................................Coauthors
When I solicited opinions on the wisdom of coauthoring, I received the following for-and-against e-mails. One law dean wrote that coauthored pieces raise the evidentiary problem of the respective contribution of the two authors, although "that is the way that much publication occurs in the social sciences, which is our model. I am very much against the attitude of some law faculty that coauthored pieces should be discounted almost entirely. Obviously, when the other coauthor is known to be a top-flight scholar, the junior coauthor will get less credit." Another dean advised me that coauthoring "is a very big potential misstep and I think worth the warning and maybe a little explanation. . . . I think the tenure committee wants to evaluate a professor's work and a coauthored piece is always problematical."

....................................................................Law Review Ethics
......................................................................Funding Disclosure
To what extent should you disclose funding sources for your scholarship? The great debate began in 1997, when several law teachers complained to the Association of American Law Schools about the trend involving "commissioned" research. The AALS president formed a committee to establish standards. She would eventually be surprised by the academy's adverse reaction to this proposal. The January 2000 hearings drew a number of presenters, most of whom disliked the proposed disclosure of specific dollar amounts for funded research. Some supported disclosure in general, but not the specific dollar amount.[31]
.....The AALS Statement of Good Practices provides that "law professors have a responsibility to engage in their own research and publish their conclusions," a "commitment to truth [which] requires intellectual honesty and open-mindedness," and the "responsibility to preserve the integrity and independence of legal scholarship."[32]
.....Until this funding debate is resolved, Sherlock Holmes's famous deduction about the dog that didn't bark may apply. If you do not disclose a funding source which has a definite stake in the outcome, more readers will ultimately view your scholarship with skepticism. Identifying that source does not appear to be an unreasonable balance between any claimed right of privacy and the reader's right to know about the potential impact on the writer's objectivity.
.....This need not apply to the routine summer research stipend. Many law schools encourage faculty scholarship via financial support with no strings attached. That type of scholarly cash flow differs in kind from a national organization's funding of empirical research which may ultimately support a particular agenda.

.........................................................Trading Up to the Major Leagues
How should you play the trading-up game? Trading up is the practice whereby someone uses an acceptance from one law review to negotiate another acceptance from a preferred journal. Tenure pressures drive this practice.
.....Let me begin with a confession, so that others might learn from my mistakes. I was pursuing a graduate law degree when New York became the first state where foreign lawyers could practice without having to take the bar examination. I made the mistake of mailing at least twenty copies of my article on this knock-your-socks-off topic, and each law review accepted my article. I had scooped everyone else in the country on a very hot topic. I accepted an offer of publication three days after mailing that article. As a student, I was unaware of the elitist publication game and the negotiations inherent in the process.[33]
.....If confession is good for the soul, then I must admit that I committed the same crime on two subsequent occasions at the outset of my teaching career. At the first institution where I taught, scholarship was not given great emphasis. I committed like blunders because I did not know where to submit articles, how many journals to submit to, how long to wait, and how to trade up. My scholarly résumé was not as elite as it could have been. But I survived my mistakes. None of my book contracts would have materialized, had I not been developing a track record.
.....Then there are professors who renege on their publication commitments to student editors.[34] The National Conference of Law Reviews frowns on this form of trading up. The NCLR's proposed Code of Ethics provides: "A law review author shall be diligent, timely, and honorable in soliciting and accepting publishing offers." The comment to that rule notes that "instances of a law review author using an offer by one law review staff as a 'bargaining chip' with another law review staff are rampant. Similarly, instances exist in which a law review author has withdrawn a manuscript from one law review when another has made an offer to publish. Such 'trading up,' as these practices are commonly called, are both reprehensible and unacceptable."[35]
.....A related rule states: "A law review author shall not withdraw an accepted manuscript, nor fail to deliver a promised manuscript, unless good cause exists to justify such action." The supporting comment further explains:

A law review author who has accepted a publishing offer from a law review, or who has agreed to deliver a manuscript to a law review, is under a duty not to breach his or her promise. This is true for at least two reasons. First, the law review enterprise is one that is uniquely built on trust. Just as the readers of a law review trust that the manuscripts that appear in the law review are original, complete, and accurate, so the law review staff trusts that its authors will live up to their commitments. Where the trust is broken, the law review begins to crumble. Second, the nature of the law review enterprise requires the timely delivery and publication of manuscripts. Where this fails to occur the law review is unable, except by luck or happenstance, to fulfill its role in society. When this occurs, the ability of the law review to guide the law along the proper path is upended.[36]

.....The lawyer in all of us might react by questioning the binding nature of the proposed ethical guidelines. Shouldn't such principles be morally binding in every context? As noted by one of its authors, in what could be described as legislative history for the NCLR code, "[t]his proposed code of professional responsibility contains no great surprises. Indeed, the standards suggested should be understood to exist even without reducing them to writing."[37]
.....The NCLR code's remedies provision states: "Where a violation of the code of ethics has occurred, the law review staff or author (as the case may be) shall take all necessary remedial measures." The commentary adds: "The obligation of the law review staff or the law review author to engage in remedial measures is separate and apart from any efforts that may be engaged in or contem-plated by the civil authorities."[38] These provisions, which appear to eschew the litigation alternative, have not been applied in any reported judicial proceeding.
.....There is a workable two-stage remedy, when an author engages in this form of breach of contract and the aggrieved editor is unable to resolve the conflict. The law review's faculty adviser would first negotiate with the offending author. Unsuccessful attempts to resolve the problem would then be brought to the attention of the contract breacher's dean. That dean would be asked to encourage the author to fulfill the prior commitment to publish (or to submit an article, if that is the context of the contractual dispute), as previously contracted with the aggrieved law journal.
.....Trading up is a blemish on legal education when it involves postacceptance withdrawal. It is my hope that these suggestions will also spawn a published dialog about some gray areas involving preacceptance trading up. This part of the game drew some criticism, several years after the NCLR code first appeared. In 1995 the law reviews began to direct various weapons against article shopping. The most common reaction was the shortened deadline: the author of an accepted article must accept or reject the offer within two to three days of the notice of acceptance.[39] Several schools now have initiated a priority review process. In 1996 the Duke Law Journal established a system in which, if an author agrees to submit an article to Duke and only four other schools, Duke promises an expedited review within twenty days.

...............................................................Micro Blueprint Decisions
.................................................................Sound Bite Journalism
Why not assault the government, or other relevant decision-maker, to make your text a thriller? Some writers unleash the pit bull when a court, legislature, or executive agency has made a tough call, by reacting with sarcastic or strident rhetoric. The telling characteristic is the claim that the decision-maker was "clearly" wrong. (If you encourage your students to argue only one side, then this subsection is definitely not for you.) A recent example was an op-ed comment on the English baby-splitting case (where two conjoined twins would both die without separation surgery; with surgery, one would die to save the other). The American writer's headline grabber was "There is no justification for deliberately destroying innocent life."
.....The scholar's job admittedly includes criticism. But should we not strive to be neutral critics, as opposed to blatant advocates? Though certain forms of scholarship may demand a value-based analysis, balance dictates at least a fleeting reference to the rationale for making a contrary decision. Put another way, how many questions posed in this article are answered with answers-as opposed to alternatives? The quintessential scholar might be memorialized as "nondogmatic, a balancer, unenamored of bright-line rules, without an 'appetite for grandiose intellectual schemes,' and disinclined to make statements in bold."[40]

.....................................................................The Elite Mystique
Where should you publish?[41] Experienced scholars may be tempted to immediately stop reading: if this question were a patent application, it would be void for obviousness. But there are several layers to the question, which transcend merely dancing to the top-twenty tune. These underlying themes involve peer-edited journals, "second" law reviews, and electronic journals (which I address in a separate section).
.....Peer-edited journals are the only game in town for the other disciplines within your university. Only for law professors are student-edited journals "the main outlet for legal writing[, which] is an embarrassing situation deserving the smirks of disdain it gets from colleagues in the sciences and humanities."[42] Refereed journals, edited by law teachers instead of students, present an ideal response to the current situation, where "students without law degrees set the standards for publication in the scholarly journals of America-one of the few reported cases of the inmates running the asylum."[43] Richard A. Epstein, an experienced editor of a major faculty-edited journal, has written:

Frequently student editors feel insecure about the subject matter of an article. Since they cannot comment intelligently about the structure of the argument, the possible lines of counterattack, and the interpretation given to primary sources, they often overdose in making sure that books are cited in large and small caps, all the while missing major substantive difficulties that could, and should, be corrected. And if their obsessive tendencies dominate their level of wisdom, hours of strenuous labor can translate a witty sentence into a tired one, and a sprightly metaphor into tedious, if literal, prose.[44]

.....Fortunately one has an increasing potpourri of publishing choices other than the traditional student-edited law review. Publication in a faculty-edited journal allows an author the satisfaction of knowing that professional peers made the acceptance decision. While students are knowledgeable, you are nevertheless placing your career in the hands of neophytes who have only one or two years of legal education under their belts-a scenario that strikes me as Liliputian. A hybrid student-faculty law review process is used at only a few schools; one example is Houston's Health Law Review, scheduled to debut in June 2001.
.....I discovered a distinct advantage in dealing with peer-edited journals. It has made me a real believer. When writing my last two articles, I first asked the editor(s) whether they were interested in my proposed topic, and whether there was any like item in their pipelines. Having obtained the desired answers, I could avoid the nuisance and waste of multiple submissions. Better yet, I avoided any trading-up negotiations.
.....A "second" law review is a specialized journal edited by students who are not on the law school's primary law review. There are approximately 285 specialized journals published by American law schools and related institutions; some schools have as many as seven such journals in addition to the main law review.[45] The great debate involves the following paraphrased positions, which the respective advocates may perceive as not being terribly different.
.....Argument 1: Subjects like constitutional law receive an inordinate amount of attention in the top twenty student-edited law reviews.[46] The more technical or regulatory topics are passed on to the second journals. So a budding scholar should fabricate a constitutional angle: it's worth selling one's soul to publish in the primary journal of a top-twenty institution. Young scholars in technical fields (e.g., environment or tax) will have to decide, article by article, whether to seek an audience within their specialty or a less knowledgeable-and perhaps more powerful-audience outside their specialty.[47]
.....Argument 2: It is wrong for a new teacher to spend time obsessing about what can get published in a top [pick a number] journal. You are better off writing about what interests you, instead of trying to be someone else. Colleagues will be hugely impressed by a publication in the Harvard Environmental Law Review or the Yale Journal on Regulation. Everyone understands that there is now a set of specialized journals in fields like environmental law. It's not the end of the world to publish in them.[48]
.....Without taking a position, I merely raise the question whether to publish in a second journal (for which I could find no advice in the law review literature). My admittedly anecdotal response includes comments by colleagues who think it makes sense to publish in a specialized journal-such a forum upgrades an article's credibility. Student editors at a general-interest law review will not be as likely to appreciate the value of specialized work. Maybe that's why symposia in second law reviews-and lower-tier first law reviews-tend to attract top names in the field. No article being complete without some self-serving statement, I would urge that where concurrent jurisdiction exists, one should publish an article like this one in the Journal of Legal Education rather than the Harvard Law Review (which has published analogous work). One downside is that the more prominent specialized journals enjoin simultaneous submission elsewhere. The upside is that such injunctions obviate the hassles and haggling associated with multiple submissions to student-edited law reviews.
.....Some of my colleagues have had bad experiences with student-edited second journals. They enumerate the problems of fewer resources, more ambivalent institutional practices, and leaner support of a school's second review. There is also the potential for less credibility, when viewed through the tenure committee's microscope. The most poignant negative comment appeared in an e-mail on the LawProf listserv. Paul Heald lamented the sudden appearance of two additional journals at his alma mater:

It is obvious that the main reason we have seen such a proliferation of secondary journals at law schools is to justify student demand for credentials and editorial experience.... The huge number of journals, however, causes several problems. First, we look unbelievably foolish to our peers in other departments where we teach. Second, as less talented students make selection decisions, the quality of published scholarship is diminished. Third, the average substantive quality of articles has dropped, since everything we write, no matter how wrong-headed, inane, or repetitive, will eventually find a home somewhere.[49]

.....The final where-to-publish factor is the classic no-brainer: certain schools give bonuses for publishing in specified law reviews. Seton Hall, for example, gives a $5,000 bounty for publishing an article in a law review on its in-house list of the best twenty-two.

..................................................................To © or Not to ©
Should you seek copyright protection for your article? Scholars are more litigious than you might expect. In one case, an untenured teacher sued colleagues and his university for the alleged misplacement of his name in the order of a coauthored article.[50] In a less contentious context, many scholars now seek individual copyright protection for their articles. The appearance of the copyright symbol next to an author's name indicates that the author has supposedly taken the steps to individually copyright that article.
.....The copyright statute's basic provisions are that authors own the original copyright to their published articles.[51]Registration is not required. A publication agreement can rearrange the rights associated with a copyrighted publication. Any transfer of ownership should be in writing.[52]
.....The law review application of these copyright principles begins with the author's acquiring the copyright-without having to actually copyright the article. The author effectively licenses certain rights to the law review. The review obtains only a copyright in the collective work. It does not have the inherent right to allow further reproduction by others.[53] You would have statutory rights if an unauthorized version of your article surfaced. The copyright statute requires that infringed work be registered, however, before one files an infringement action.[54] A postinfringement registration enables the author to sue if her article is used unfairly or is subject to "abject and reprehensible" copying by another publisher.[55]
.....Law reviews are now acceding to authors' demands for individual copyrights. Authors may thereby expressly establish their right to authorize reprints, without procuring the traditional permission of the publishing journal. This saves time and eliminates the need for extensive communication rounds among the author, the original law review, and whoever wishes to reprint. Individually copyrighting an article also increases the comfort level if the author later uses the article in a book.
.....What about your copyright ownership rights vis-à-vis your university? Some cases, which one hopes will not apply to law review authors, have focused on the employer-employee relationship. The employer is the author when an employee produces a "work made for hire."[56] Although one would suspect that law review articles fall outside of this category, the copyright laws can be displaced by college or university policies regarding the ownership of faculty-created intellectual property. If there is no university policy, then the author presumably owns the copyright to a law review article. Yet there could be an institutional policy which somehow rearranges such rights. For example, universities are beginning to update their policies to address "shared rights" issues,[57] and to cover faculty-generated electronic and digital works.[58] Faculty would be wise to keep track of any such developments, so that ownership of their work product remains clear.[59]

.............................................................What About Tomorrow?
If you have not already done so, you should join electronic listservs whose members are interested in the subjects you will be writing about. I sent several messages to the LawProf listserv during the preparation of this article, seeking support for propositions not conveniently addressed in any print citation. In addition to answering many practical questions on short notice, such forums carry useful surveys of interest to their members. With an army of colleagues eager to provide mutual support, access to such lists minimizes any sense that you are going it alone.
.....As you develop a scholarly arsenal, you should keep track of your successes. Placing your publications on a Web site has its advantages.[60] An authorized electronic version can be posted for classroom use. Another advantage is the convenience of not having to respond to requests for a print version. Scholars might also keep track of their personal publication citations, which may be one indicator of the utility of their scholarship. More seasoned scholars can use this track record when seeking book contracts, grants, or speaking opportunities.
.....Law reviews, as we know them, will one day be academic dinosaurs.[61] So you might consider publishing in an electronic journal. The e-world is gradually replacing the print world.[62] For example, the Legal Scholarship Network is a family of journals covering all major areas of law. Each journal is edited by a major scholar in the field. The LSN contains abstracts of working papers of interest to scholars in the field, as well as book and conference announcements. Its Web-based database contains thousands of abstracts and working papers for LSN and its sister networks. The LSN is searchable by author, title, and full text for abstracts in its database-including natural language and "fuzzy logic" search capability.[63]
.....The advantages to publishing in an online review will one day outweigh the perceived disadvantages. An online review may update a previously published article, assuming that the law review author and editors are willing to provide this service. The article can be distributed at lightning speed and at no cost via the Internet. It is also easier to create and read electronic cross-references. Rather than fumbling through supra or infra footnotes, the target cite is just a mouseclick away.
.....Another plus is that an online journal, or a review with both print and electronic versions, can be helpful if you are facing a deadline. I know of someone who made an early application for tenure and had to publish by a date certain, at an institution which requires actual publication. The print version of the article would not be published until too late. But the publishing institution had an online version of its law review, and the electronic version of her article appeared on time. Otherwise, her early tenure application would have been put over for consideration until the following year, when the print version finally appeared.
.....The twenty-first-century scholar should incorporate electronic options into what will soon become the norm. The car replaced the horse-drawn carriage; television outdistanced radio; Westlaw and Lexis trumped traditional print research methodology; and e-journals will supplant print journals. One practical argument for pulling our heads out of the sand is that an increasing number of our potential readers are far more likely to personally subscribe to an electronic journal than to a print journal.

............................................................................* * * * *
Unlike my teenagers, who know all the answers, I am still working on identifying the questions. Those that I have presented here admittedly include many coin-toss answers. If nothing else, they will be resources for identifying decisive subtleties in the scholarly component of the next three decades of your career.

-------------------------------------------------------------------------------------------------------------------
William R. Slomanson is a professor at the Thomas Jefferson School of Law. He thanks Marybeth Herald, Jean Peters, Kellye Testy, and David Van Zandt for their comments; Dorothy Hampton, reference librarian, for valuable research assistance; Dean Kenneth Vandevelde for his support; and all cited e-mail authors for permission to reprint their remarks.

1. Dickerson v. United States, 120 S.Ct. 2326, 2342 (2000).
2. Though no one source is comprehensive, the following are helpful: Mary Kay Kane, Some Thoughts on
....Scholarship for Beginning Teachers, 37 J. Legal Educ. 14 (1987); Robert H. Abrams, Sing Muse: Legal
....Scholarship for New Law Teachers, 37 J. Legal Educ. 1 (1987); Donald J. Weidner, A Dean's Letter to New
....Law Faculty About Scholarship, 44 J. Legal Educ. 440 (1994); Mary Beth Beazley & Linda H. Edwards, The
....Process and the Product: A Bibliography of Scholarship About Legal Scholarship, 49 Mercer L. Rev. 741
....(1998).
3. Richard Kristin Weaver, LawProf Listserv Message No. 000401-11 (Apr. 1, 2000). The essential details are ...presented in John S. Nelson, The Case Against Legal Scholarship or, If the Professor Must Publish, Must the ...Profession Perish? 39 J. Legal Educ. 343 (1989).
4. "Universities are splitting the job of professor into its component parts: teaching or research. Service to the ...institution is unnecessary, since planning is being done by full-time administrators who increasingly resemble ...corporate executives rather than academics." Marina Angel, The Glass Ceiling for Women in Legal Education: ...Contract Positions and the Death of Tenure, 50 J. Legal Educ. 1, 11 (2000).
5. Robert M. Jarvis, Why Law Professors Should Not Be Hessian-Trainers, 13 Nova L. Rev. 69, 72 (1988).
6. Association of American Law Schools, Statement of Good Practices by Law Professors in the Discharge of
....Their Ethical and Professional Responsibilities, II. Responsibilities as Scholars, 2 (adopted 1989), at
.....<http://www.aals.org/ethic.html> [hereinafter AALS Good Practices].
7. American Bar Association, Standards for Approval of Law Schools, Standard 401(a), available at ...<http://www.abanet.org/legaled/standards/chapter4.html>.
8. Id., Standard 402(c).
9. Id., Standard 404(a)(2).
10. See, e.g., Robert L. Baird, Legal Scholarship and the Professional Responsibility of Law Professors, 16 Conn. .....L. Rev. 731 (1984).
11. See Report of the AALS Special Committee on Tenure and the Tenuring Process, 42 J. Legal Educ. 477, 497 .....(1992).
12. Alfred C. Yen, Advice for the Beginning Legal Scholar, 38 Loy. L. Rev. 95, 96 (1992).
13. E-mail to author (Aug. 17, 2000) (on file with author).
14. One do and one don't. Do make sure that such activities dovetail with the service portion of your tenure plan. .....Don't engage in too many sidebar projects. This can be as deadly as the epic book project.
15. On the advantages and disadvantages of publishing books as opposed to articles, see William G. Ross, .....Scholarly Legal Monographs: Advantages of the Road Less Taken, 30 Akron L. Rev. 259 (1996).
16. Weidner, supra note 2, at 441.
17. The Myth of Objectivity in Legal Research and Writing, 18 Cath. U. L. Rev. 290, 294-95 (1969).
18. Scholarship Amok: Excesses in the Pursuit of Truth and Tenure, 103 Harv. L. Rev. 926, 928 (1990).
19. Scholarship About Scholarship, 63 U. Colo. L. Rev. 641, 642 (1992).
20. Yen, supra note 12, at 96.
21. See Michael Heise, The Importance of Being Empirical, 26 Pepp. L. Rev. 807, 811 (1999).
22. Franklin E. Zimring, Where Do the New Scholars Learn New Scholarship? 33 J. Legal Educ. 453 (1983). See .....also Peter H. Schuck, Why Don't Law Professors Do More Empirical Research? 39 J. Legal Educ. 323
......(1989).
23. See, e.g., Experimental and Empirical Studies Abstracts, a new electronic journal. Further information is .....available from the editor, Jennifer Arlen of the University of Southern California Law School, at .....<J_Arlen@SSRN.Com>.
..........The Law and Society Association conducts useful conferences and publishes the Law and Society Review .....(since 1966). This peer-reviewed outlet carries diverse interdisciplinary scholarship concerned with the cultural, .....economic, political, psychological, or social aspects of law and legal systems. See <http://www.lawand .....society.org>.
24. See, e.g., Symposium, The First National Meeting of the Regional People of Color Legal Scholarship .....Conferences, Kevin Hopkins, Cultivating Our Emerging Voices: The Road to Scholarship, 20 B.C. Third
......World L.J. 77 (2000).
25. The most telling analyses may be those in Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. .....L. Rev. 1745 (1989) and Colloquy-Responses to Randall Kennedy's Racial Critiques of Legal Academia .....(symposium), Milner S. Ball, The Legal Academy and Minority Scholars, 103 Harv. L. Rev. 1855 (1990).
26. Further information is available from Linda Crane of the John Marshall Law School at <7crane@jmls.edu>.
27. For listservs, see Lyonette Louis-Jacques, Lists for Law Professors, at .....<http://www.lib.uchicago.edu/~llou/lawlists/lawprof.txt>. For conference notices, see Jurist: Law Professor's .....Network at <http//jurist.law.pitt.edu/conflist.htm> and the Heiros Gamos HG Master Meeting Calendar for .....interdisciplinary research at <http//www.hg.org/calendar.html>.
28. See Harriet Richman & Steve Windsor, Faculty Services: Librarian-Supervised Students as Research .....Assistants in the Law Library, 91 Law Libr. J. 279 (1999).
29. Failure to give credit where credit is due will make for a rather lonely career-not to mention lack of access to .....people who might help you. This suggestion obviously extends to personally selected article reviewers.
30. Arthur D. Austin, The "Custom of Vetting" as a Substitute for Peer Review, 32 Ariz. L. Rev. 1, 2 (1990).
31. Linda Berlin, Full Disclosure: Law Professors Balk at Revealing Their Financial Sources, Cal. Law., May 2000, .....at 25. The latest draft standards are available on the LawProf Listserv Message No. 010111-5.
32. AALS Good Practices, supra note 6, at II. 2, 3, 5.
33. For proposed modifications of the submission process, see Stephan R. Heifetz, Efficient Matching: Reforming .....the Market for Law Review Articles, 5 Geo. Mason L. Rev. 629 (1997); William C. Whitford, The Need for
......an Exclusive Submission Policy for Law Review Articles, 1994 Wisc. L. Rev. 231; Erik M. Jensen, The Law
......Review Manuscript Glut: The Need for Guidelines, 39 J. Legal Educ. 383 (1989).
34. For a description of this problem, see Robert M. Jarvis, Law Review Authors and Professional Responsibility:
......A Proposal for Articulated Standards, 38 Drake L. Rev. 889 (1989).
35. Code: Rule 4.2 Solicitation and Acceptance of Publishing Offers. Commentary: Comment [1], reprinted in .....Michael L. Closen & Robert M. Jarvis, The National Conference of Law Reviews Model Code of Ethics: Final .....Text and Comments, 75 Marq. L. Rev. 509, 523 (1992) [hereinafter Model Code of Ethics].
36. Code: Rule 4.3 Withdrawal of Manuscripts or Promised Manuscripts. Commentary: Comment [1], Model
......Code of Ethics, supra note 35, at 523.
37. Michael L. Closen, A Proposed Code of Professional Responsibility for Law Reviews, 63 Notre Dame L. Rev. .....55, 62 (1988).
38. Code: Rule 1.6 Remedial Measures. Commentary: Comment [4], Model Code of Ethics, supra note 35, at .....516.
39. Lisa Anderson, Law Journals Move to Stop 'Shopping' of Manuscripts, N.Y. Times, July 12, 1995, at B6.
40. Joshua Dressler, Kent Greenawalt, Criminal Responsibility, and the Supreme Court: How a Moderate Scholar .....Can Appear Immoderate Thirty Years Later, 74 Notre Dame L. Rev. 1507, 1507 (1999).
41. For chapter and verse, in the context of posttenure scholarship, see Philip F. Postlewaite, Publish or Perish: The .....Paradox, 50 J. Legal Educ. 157 (2000). Where one should publish is the subject of much debate. For example, .....my addressing this theme later rather than sooner will be perceived by some readers as an oversight.
...........For an online version of the annual Directory of Law Reviews and Scholarly Legal Periodicals, see .....<http://www.andersonpublishing.com/lawschool/directory>. Addresses for hundreds of general-interest law .....reviews are available at <http://www.nku.edu/~chase/libesubmission.html>.
42. Austin, supra note 30, at 2.
43. John Kester, Faculty Participation in the Student-Edited Law Review, 36 J. Legal Educ. 14, 14 (1986).
44. Faculty-Edited Law Journals, 70 Chi.-Kent L. Rev. 87 (1994).
45. Gregory Scott Crespi, Ranking Specialized Law Reviews: A Methodological Critique, 26 Fla. St. U. L. Rev.
......837 (1999).
46. See William J. Turnier, Tax (and Lots of Other) Scholars Need Not Apply: The Changing Venue for .....Scholarship, 50 J. Legal Educ. 189 (2000).
47. I am paraphrasing Marc Poirier, Lawprof Listserv Message No. 000816-1 (Aug. 16, 2000).
48. I am paraphrasing Craig Oren, LawProf Listserv Message No. 000816-4 (Aug. 18, 2000).
49. LawProf Listserv Message No. 000420-3 (Apr. 20, 2000).
50. Weinstein v. Univ. of Ill., 811 F.2d 1091 (7th Cir., 1987).
51. 17 USC § 201(a). See generally Kenneth D. Crews, Copyright, Fair Use and the Challenge for Universities: .....Promoting the Progress of Higher Education (Chicago, 1993).
52. 17 USC § 201(d).
53. "[T]he owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing ......and distributing the contribution as part of that particular collective work, any revision of that collective work, ......and any later collective work in the same series." 17 U.S.C. § 201(c).
54. There are some excellent online resources for further detail. See, e.g., Irwin J. Schiffres, Copyright and Literary .....Property, 18 Am. Jur.2d Copyright and Literary Property Summary (1985) and Cumulative Supplement
......(1999). In the Westlaw database AMJUR, enter: <au(schiffres) & pr("copyright and literary property")>.
55. On fair use, see Diane Conley, Author, User, Scholar, Thief: Fair Use and Unpublished Works, 9 Cardozo
......Arts & Ent. L.J. 15 (1990). On unauthorized copying, see, e.g., Morris v. Business Concepts, Inc., 2000 WL
......323118 (S.D.N.Y., 2000), 54 U.S.P.Q.2d 1561.
56. See 17 USC § 201(a).
57. See George Washington University's policy at <http//www.hfni.gsehd.gwu.edu/~research/copyrightplcy.htm>.
58. For a listserv survey about what universities are requiring in terms of allocating intellectual property rights, see .....LawProf Listserv Message No. 000524-8 (dated May 24, 2000) on IP rights in faculty contracts.
59. Scott Campbell, When Professors Create Software, Do They Own It, or Do Their Colleges? Chron. Higher .....Educ., July 21, 2000, at A29.
60. See, e.g., <http://home.att.net/~slomansonb/publica.html>.
61. Bernard Hibbits, Last Writes? Re-assessing the Law Review in the Age of Cyberspace, 71 N.Y.U. L. Rev. ......615 (1996), available at <http://www.law.pitt.edu/hibbitts/lastrev.htm>; Gregory E. Maggs, Self-Publication on ......the Internet and the Future of Law Reviews, 30 Akron L. Rev. 237 (1996).
62. See William R. Slomanson, Electronic Lawyering and the Academy, 48 J. Legal Educ. 216 (1998). See also
.......the University of Toledo College of Law's first annual symposium on Leadership in Legal Education, available
.......at <http://www.law.utoledo.edu/lawreview/deansessayissue.html> (consisting of short essays by 35 current and
.......former deans). Their insights are useful for new scholars in search of varied perspectives about the local
.......environment in which they will function.
63. LSN was founded by legal academics. See its Web page at <http//www.ssrn.com>. The licensing cost can be
.......borne by your institution's library.