Every academic has papers they never published because they grew tired of editor rejections or because they simply grew tired of revising them over and over and over again. Generally, these papers are dropped in a drawer (or, in the modern world, in a distant folder in the cloud) and they never again see the light of day. This is a shame for scientific advancement because any work that pushes forward understanding of the world is worth being seen and discussed. This rejection phenomenon is, perhaps, most prevalent in the social sciences where journal acceptance rates are quite low (in political science, for example, the rate at the American Journal of Political Science is usually below 8 percent - click here for details). In this spirit, then, I found five of my favorite papers from early in my career that I believe should have been published, never were and, in turn, were relegated to the dust bin of history. With a short description for each, these papers include:
“The Solicitor General, Signals, and Supreme Court Oral Arguments” (final version coauthored with Sarah Treul and Justin Wedeking). I began this paper while I was a graduate student. It ended up at 5 different journals as I added theory, added data, and added coauthors. No editor would bite. The main finding — that the U.S. Government wins more as amicus curiae at the U.S. Supreme Court when the Solicitor General personally appears at oral arguments — was published by Black and Owens (2012) in their excellent book about the SG. This made the paper irrelevant but I am happy the finding is out in the ether.
“Amicus Curiae, Signaling, and U.S. Supreme Court Oral Arguments” (coauthored with Matthew Roberts). This paper emanated from my interest in oral arguments and the role of amici curiae (friends of the court) at the High Court. The theory was that, like Solicitor General appearances, amici who obtain permission to present at oral arguments are more likely to help their preferred litigant win. After several attempts at publishing this original article, Matthew used the data for his dissertation and the findings appear in his subsequent book.
I came of age as a graduate student during the Strategic Model Revolution in judicial politics (applying formal models to SCOTUS decision making was all the rage in the early to mid 1990s). I was never very good at formal modeling but this was my best attempt (the paper came from a seminar on solving equilibria). “Bargaining, Strategic Interaction, and Supreme Court Decision Making” received Revise and Resubmits (and ultimate rejections) at two straight journals with Law and Society Review even offering a second round of revisions. After losing in the second round at LSR I was just done, especially after a reviewer outed himself and told me to “let the big boys deal with formal modeling.” That was pretty harsh and nasty advice and I had better and cooler papers to run through the review mill. I really like this paper even though the data I used to test the models are anecdotal.
More than a decade later I took another stab at formal theory. In so doing I worked with two colleagues — Jason Roberts (now at Chapel Hill) and Songying Fang (now at Rice) — to formally model the Court’s certiorari process and then to test the hypotheses derived from the model’s equilibria. We tried three times to publish “The Will of the Minority: The Rule of Four on the United States Supreme Court,” including one R&R. However, we were never successful and the paper fizzled. I still believe it is an excellent paper with interesting and important findings.
When the spring 1999 issue of Judicature was published, during my first year as an assistant professor, I was struck by one article in particular. It was written by a federal judge, who explained “why the Rehnquist Court was so anti-defendant” in criminal rights cases. His argument was based on four anecdotal examples to support his theory that the Court’s anti-defendant stance stemmed from the fact that none of the current justices had ever been a criminal defense attorney or a trial court judge. As a social scientist I wanted to systematically test this anecdotal account. My findings in “Testing the Supreme Court's Experience Gap in Criminal Rights Cases” showed the judge’s results were, at best, specious. My response took me a total of only 3 hours to complete (including coding data, estimating models, and writing). The editors at Judicature apparently did not like me criticizing a sitting judge and the paper was desk rejected. Given that there was no place to really put the piece after that, because it was a response to a current article, I shelved it for good.