The Melbourne Journal of International Law Screws Me Over

So, last February I received the following invitation from the Melbourne Journal of International Law, a peer reviewed journal at the University of Melbourne in Australia:

Having reviewed your recent work, ‘Interpreting the Nuclear Nonproliferation Treaty’, we are confident that any submission of yours would serve as an important contribution to this field of inquiry. MJIL publishes Commentaries of between 5000 and 8000 words, which are fully-referenced think-pieces aimed at exploring or critically examining an issue or idea without needing to come to a definite conclusion.MJIL is a peer-reviewed journal, publishing commentaries, review essays and full articles dealing with public and private international law issues” (italics added)

The invitation I think quite clearly set the parameters for what I was invited to submit: a commentary that was to be a “think-piece” exploring the agreed area, without necessarily advancing and supporting a thesis as one would do in a full academic article. This commentary format for the piece was clearly distinguished from other formats published by the journal, including review essays and “full articles.”

So I did precisely what I was invited to do. I spent months researching and writing a commentary on an agreed topic – the rights of states in international law. The commentary was tailor-written to this invitation. I did not set out to write a “full article.” That’s not what I was invited to do. The tone and substance of my piece were perfectly in keeping with the “think-piece” commentary that I was invited to submit.

A few days ago, I received the three peer reviewers’ reports, and a rejection of the piece by the editors of the journal. Now, I’ve been through peer review of my work many, many times. And I’ve had my share of rejections. What upsets me most about this particular instance is not that the reviewers didn’t like my piece, it’s that the reviewers clearly used the wrong standard of review when evaluating my piece. Here’s a couple of excerpts from the reviews.

“A much deeper theoretical exploration would be needed to justify publication, and this the piece lacks. Assertions like “I would like to argue that the states’ rights program can be seen as adding a new dimension to the scholarly literature on the constitutionalization of the international legal system” (p. 16) are left in isolation from the rest: these are assertions with nothing like the integral connection to the raw material (history, practice, treaties) that would be necessary for a serious academic article.” (italics added)

“This article contains the seeds of a potentially interesting and worthwhile project on the concept of states’ rights.  However, in its current form it is not sufficiently well developed to stand alone as an article. The tone is too casual, the range of issues addressed is too broad and therefore too thinly covered (the development and maturation of the international legal system, globalization, fragmentation of international law, developments in the security council etc.) and the order and organization of the ideas requires significant further refinement. (italics added)

When I read these reviews, it’s clear to me that at least two of the reviewers were not reviewing my piece as a “think-piece” commentary, but as a “full article,” and that their criticism is based on this erroneous standard. That’s what frustrates me about this. I think that the definition of the invited work in my invitation letter is just impossible to reconcile with at least two of the reviewers’ responses.

I have tried to explain to the editors of the MJIL how this is a serious problem for the journal. They invited me to write a piece in a specific format, implying a promise that my work would be reviewed for publication according to the proper standards relating to that format. I wrote exactly such a piece, expending a lot of my time and effort in good faith reliance on their invitation and implied promise. They are now refusing to publish my work in the journal because they have caused/allowed the peer reviewers to review my work according to a clearly erroneous standard, and even after this problem has been demonstrated to them, they are stubbornly refusing to right this wrong. Essentially, this is a bait and switch – asking me to do one thing, and then switching the standards for accomplishing that thing to much different and more demanding standards later.

I have tried to work with the editors directly over the past few days, but they are refusing to work with me in a reasonable way. Basically, I’ve been baited and switched out of months of work, and now have nothing to show for it.

This is all a shame, because up till now I’ve always had a high opinion of the Melbourne Journal of International Law. But I would now sound a note of caution to my international law academic colleagues out there about working with the MJIL in the future.

UPDATE:  Many will have seen Kevin Jon Heller’s reply to this post on Opinio Juris. Though you can’t see it anymore. He has taken it down, likely because the comments were overwhelmingly supportive of my position, and several questioned the propriety of his detailed justification of the MJIL’s treatment of me in that forum.

In my original post, I purposely left Kevin’s name out of my complaint, to avoid personalizing the issue with him. He, unfortunately, did not show the same level of respect and judgment in his post.

But before he deleted it, I think he actually provided some of the best evidence yet of the failings of the MJIL editorial staff that were a primary cause of the incorrect outcome in this case. Kevin wrote:

“In one important respect, Dan’s objection was unjustified: the emails that MJIL sent to the reviewers asking them to review Dan’s submission clearly stated that the submission was a commentary, not an article. That said, the emails did not specifically lay out the standard of review appropriate to a commentary — and I agreed with Dan that it seemed likely at least one of the negative reviewers had, in fact, held his submission to the standard of an article, not an informal commentary.”

In this quote Kevin says two important things. One, that the MJIL editors failed in their correspondence with the reviewers to explain the correct standard of review. This fact alone shows negligence and a lack of professionalism and I think is the primary cause for the erroneous reviews of the reviewers.

Second, Kevin says that on his read of the reviewers’ comments, he agreed with me that at least one of the reviewers appeared to use the wrong standard of review. He later explained that the MJIL editors spoke with the reviewers again after I raised my objections. At that point, it would be natural for the reviewers not to want to repeat their review, and therefore to say that their review still stands, even under a different standard.

In my view, this ex post facto discussion with the reviewers is irrelevant. What is relevant is the ex ante facts that the reviewers did not have explained to them the correct standard of review, and that both I and Kevin could see that at least one or possibly two of them had objectively used the wrong standard in their review.

In my opinion, these are sufficient facts to justify setting aside one if not both of the negative reviews. Again, however, even in light of this evidence supporting my complaint, the MJIL editors have refused to work out a reasonable resolution with me.

In his most recent Tweet on the matter, Kevin says it’s sad that I can’t just get over this. But I suspect that if the tables were turned, and he had put months of work into something tailor-made to match an invitation, and then had that piece rejected according to improper procedures, and had to just eat the loss of all that work, he’d be singing a different tune.