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Friday, March 27, 2015

Breaching a Law Review Contract?

I'm one of Temple Law Review's advisors.  Given my views on student-run journals, this is a  bit ironic. But the experience so far has taught me  how much student editors care about getting it right, and how invested they can be in their journal's success.  Or to put it differently, though in theory a goofy academic could generate a hundred more useful ways to spend students hours than law review, it's not at all obvious that any of those alternatives would generate equivalent passion and commitment from students. 

The advising process has also recently given me a new perspective on an old problem. Very often, in the insane & dispiriting process that we call the submissions cycle, you hear of professors getting a great (read: higher prestige journal) offer just after they've accepted at a less great (read: lower prestige journal) placement.  Counterfactual reasoning sets in -- "if only I'd pushed back against those meddling kids!" - and everyone who hears the story feels a punch in the gut, excepting those who refuse to play the game. Inevitably the question is entertained: what, exactly, is stopping the professor from backing out of the deal with mediocre law review A to accept the offer of awesome law review B? After all, the process is crooked, everyone is just reading expedites, and reliance arguments are weak.  Law reviews aren't going to sue for breach of contract -- even if one exists, which might be doubtful.  If they did , this is the clearest case of efficient breach possible. 

But then norms of professional courtesy typically set in. And, though I've been teaching for over a decade, and heard literally dozens of stories like this, I'd never actually heard of anyone backing out of a law review acceptance until this cycle.  Temple just had someone back out.  Because that person is junior - and no doubt listening to a more senior mentor's advice - I'm not going to provide more details.  I will say that the acceptance/rejection cycle was very dispiriting to the students involved, and it rightly might make them quite cynical. And it did make me wonder whether  publication decommitments are  more widespread than I'd thought, and whether journals could (or should) do anything to stop them. 

Have I just been naive? Is law review conscious decoupling common? Is that behavior, in fact, righteous?

Posted by Dave Hoffman on March 27, 2015 at 05:13 PM in Dave Hoffman, Law Review Review, Life of Law Schools | Permalink

Comments

What a shame that your students had to go through that. Temple is a very good placement--not that any breach against any ranked law review should be countenanced, but a breach from Temple suggests the professor was particularly craven and blindly ambitious. He/she fails to realize that the short term gain of a higher-placed law review threatens longer term losses in his/her credibility and trustworthiness.

Posted by: Steven R. Morrison | Mar 27, 2015 5:28:27 PM

A comment and a question:

Comment -- I've heard a story or two, backed by solid confirming evidence, of backing out. These stories matched yours in lots of ways (junior person "encouraged" to back out by more senior folks), but they are no less dispiriting (in your word) for that. Your students are right to be upset.

Question -- Given your aversion to anonymity*, why not name the person? Perhaps a little public shaming is just the response that's needed.

(*I realize that your aversion is focused on internet comments, and I don't doubt that this is a very different scenario in lots of ways. It's different to reveal others than to reveal oneself, etc. But still. Why are you being so delicate when s/he couldn't be bothered?)

Posted by: Plaid Man | Mar 27, 2015 5:32:22 PM

Steven: I'd prefer not to make the thread about the particular professor. I don't know what motivated that person, but think the charitable answer is best: senior mentor advice. My real question - and one I'd love for folks to respond on - is whether this is common.

"Plaid Man": I'm not averse to anonymity. I'm averse to anonymous commentators who share information that is totally unverifiable by virtue of being doubly clouded. If you used your name, I would at least have someone to put the information on, and would be able to judge the credibility of the information against what I know about you! As for why not "out" this person, well, obviously, it's because it would be totally cruel, and not the point of what I'm writing the post for. I'm actually curious as to whether this is a more common phenomenon than it used to be. When I was an assistant professor, it was a no-no. Now, maybe as journals have moved to shorter deadlines in response to the deluge of submissions, possibly it is more common? If so, I should feel differently when it happens.

Posted by: dave hoffman | Mar 27, 2015 5:36:40 PM

Hmmm.

Okay.

I'll accept that "the point" of your post is to gather information about this practice (such as it is), though I think the tone and trajectory of the post invites exactly the kind of reaction you got from Steven and me. Of course people are going to be angry and want to know -- and since you've got the details, of course people are going to ask. Don't disclose if you don't want to. But don't pretend that this thread isn't already somehow personal to that professor -- and don't act like we're not already on the cruelty path.

Anyway, for what it's worth, the stories of backing out I know of are old. Not ancient, but old enough not to fit the It's Because of Tighter Deadlines hypothesis.

And please stop making fun of my name.

Posted by: Plaid Man | Mar 27, 2015 5:48:11 PM

Dave,

I agree that you shouldn't name this professor--they can own up to their own wrongdoing if they like--but I DO think this has everything to do with the professor's personal integrity. And so to an extent it needs to be about the professor. Whatever a senior colleague suggested, this is a question of ethics, of sticking with an agreement that someone made. Would we want this professor teaching contracts or professional ethics? What if this professor's students learned of the stunt? Would they then learn that to get ahead in their careers they should feel free to withdraw from an agreement as long as it's not legally binding? This may be a small issue, ultimately, but because it's a small issue, the breach of trust and integrity is all the greater.

Posted by: Steven R. Morrison | Mar 27, 2015 5:58:39 PM

I haven't actually heard any stories of backing out, but I'm not surprised it exists on a small scale. My own view is that professional ethics condemn the practice, but I suppose there's nothing wrong with the author approaching the first-accepted journal, explaining the situation, and asking (with appropriate deference and sensitivity) to be released from the acceptance.

There are a few institutional practices that could dissuade this situation from happening. First, authors should immediately withdraw from all other journals once an acceptance is communicated. In today's electronic-submissions age, withdrawals ought to be fairly immediate and conclusive (though I know from personal experience that withdrawals do get lost in the shuffle sometimes). Second, journals could keep and share among each other information--both good and bad--about particular authors. What information to share and its reliability is beyond the scope here, but, at the very least, I would think it would be appropriate for a backed-out-from journal to share that information with the second-offering journal. The second-offering journal then could do its own backing out.

More generally, we should, as an institution with professional norms, develop and publish a "best practices" for journal submission, perhaps with student input. The result might be good for everyone.

Posted by: Scott Dodson | Mar 27, 2015 6:15:48 PM

Scott

Those are pretty good ideas. I wonder if Scholastica could enable/fascilitate them?

Posted by: dave hoffman | Mar 27, 2015 6:33:45 PM

That is unacceptable behavior. Period. I would suggest that you have one of your editors contact the upstream law review and report what the unscrupulous author did (I'm sure that he or she failed to mention it). At least the publishing law review ought to know how how things went down and whom they're dealing with. Who knows? Perhaps the offer will be rescinded on ethical grounds. A just punishment.

Posted by: huh? | Mar 27, 2015 6:55:34 PM

1. I once got an offer from a great journal which was contingent on actually withdrawing from everywhere else in the next few minutes, which I did.

2. I am certain that tenured faculty at high prestige schools have backed out in previous years. (I never have).

3. What if someone is in tenure trouble when they get the offer after the bell? Are they really supposed to be gracious if there might be a very high cost? Maybe the answer is yes, just asking.

4. What if one is at a school that pays a bounty for a top placement? Would it be sufficient to offer to split the money with the jilted law review?

Posted by: Jack | Mar 27, 2015 7:00:16 PM

"jack"-- On #4, wouldn't something more like 90/10 to the jilted journal seem fair, especially since the jilted journal is almost certainly at a school that could use the money?

Posted by: dave hoffman | Mar 27, 2015 8:24:55 PM

Congrats to the Machiavellian author who, in an instant, taught all the members of the Temple LR that self-interest overrides professional ethics. Congrats also for helping to demonstrate the ease with which people will rationalize their own unethical conduct simply because it was encouraged by an authority figure. I'm always pleased when someone proves yet again the importance of my work.

Posted by: "Stan Milgram" | Mar 27, 2015 8:49:37 PM

When I was a VAP I was encouraged not to withdraw my article from a journal that had accepted it because my colleague/mentor was certain I'd get a better placement elsewhere (I hadn't even gotten anything else). I didn't withdraw, but this is at least one additional data point for you Dave.

Posted by: VAP | Mar 27, 2015 8:52:22 PM

Dave, did you correspond with the author? I respect your reasons for not naming him or her publicly. But it seems appropriate for you to communicate that backing out to take a different offer is unethical and unprofessional. It might have more weight coming from you directly.

Posted by: James Grimmelmann | Mar 27, 2015 8:58:40 PM

>> 3. What if someone is in tenure trouble when they get the offer after the bell? Are they really supposed to be gracious if there might be a very high cost? Maybe the answer is yes, just asking.

Come on this is law school we are talking about. Maybe you meant considering lateraling for more money?

Posted by: DualAppointment | Mar 27, 2015 9:54:56 PM

James,
I imagine that, as a result of this post and thread (which I'm pretty sure the author now knows about), the author has experienced all the weight of shame that he/she will ever feel about his/her wrongheaded move.

Posted by: Steven R. Morrison | Mar 27, 2015 10:01:49 PM

Was there actually a breach of contract here? Had there been a signed publication agreement? I've always told law reviews that my acceptance is subject to coming to an acceptable agreement on copyright terms and so forth, though I've never actually had any problems with the agreement. (I am not asserting that the lack of a signed agreement means there was no breach, though it would certainly complicate the analysis.)

Posted by: junior prof | Mar 27, 2015 11:15:07 PM

As someone who just finished up a year as an articles editor, I suppose I should be on the name-and-shame side of this debate. But I'm not. Breaking the commitment was a dick move, but law review students are on the receiving end of many dick moves by faculty. Where does this rate a scale that includes symposium pieces that are barely cited, or more than twice the word limit, or riddled with material factual inaccuracies*? And what about authors who ignore deadlines, don't respond to questions, and seem to have pulled pincites out of random number generators? It's a fairly broken system, and we shouldn't pretend that this one guy is that much worse than everyone else.

Also, no piece was stolen from my journal in this fashion in the last year and, to my knowledge, we never stole a piece this way.

*Meaning most numbers in the piece were wrong, and there were a lot of numbers.

Posted by: Former AE | Mar 27, 2015 11:54:52 PM

I'm curious about the suggestion that he should have just asked the journal if he could have out. Maybe the journal would have insisted he stick with them, but if the jump was to Harvard or even Texas, maybe he could explain what it would mean for his career. I've always thought asking the journal to waive its rights is completely acceptable.

Posted by: anon prof | Mar 28, 2015 8:00:53 AM

I suspect that a good number of the people excoriating this have no problem with efficient breach in general when applied to other industries...

Posted by: publius | Mar 28, 2015 8:38:42 AM

Steven, you're probably right about this case. But as a general principle for the future, faculty advisors are in a good position to express professional and ethical norms to authors and raise the psychic costs of breach.

Posted by: James Grimmelmann | Mar 28, 2015 8:42:40 AM

Technology may help solve this problem. If every journal used the same electronic submission system, we could have a system where each journal would have to make an offer by doing so on the submission system, with a public window that the other journals would immediately see. There would be no "expedite requests," as the other journals could automatically see that the other offer was made and could make a competing offer in the window. The author would then accept or reject the offer publicly in the submission system, so that all journals would know that the article either was still available or had been accepted. If the offer had been accepted already, the submission system would not allow other journals to make an offer on the article.

Posted by: Orin Kerr | Mar 28, 2015 8:49:52 AM

Former AE makes a good point. Arguably, the ethical breaches s/he cites are even more serious, because they are breaches of academic integrity (or at least they endanger the collective project of scholarship). The author in the post perhaps lacks personal integrity, but there are jerks everywhere, and this sort of breach doesn't threaten the body of scholarship in the same way.

(And if the piece gets a more widely read placement, and it is in fact worthy, maybe the author did the field a favor?)

Posted by: WG | Mar 28, 2015 8:54:58 AM

>> I suspect that a good number of the people excoriating this have no problem with efficient breach in general when applied to other industries...

I see nothing in the OP to suggest that a payment was made from the reneging professor to the journal. It what sense does the efficient breach analogy apply?

Posted by: brad | Mar 28, 2015 10:24:09 AM

Institution* Irrationally** Rewards*** Bad Behavior, Actor Behaves Badly: Full Story at Ten!


_______________________________
* Which institution? Well, that's an interesting question. Are there people on this junior person's faculty who will count the placement of his/her articles toward a tenure case? If so, what are their motivations? Is this about the lateral market (are we still pretending there is one?), and if so, why are the people at the institutions that hire laterally not being given an incentive to invest more in things like actually reading scholarship? Is it U.S. News, somehow (isn't everything U.S. News, somehow)? Is it the path-dependence effect generated by the Conventional Wisdom that listing the fancy law reviews in which one has published in the past in one's cover letter to the fancy law reviews to which one is presently submitting one's work appreciably increases the probability of today's FLRs publishing one's work, thereby giving one more FLRs to list in the future in pitching one's future papers to still more FLRs as the rich get richer and richer almost as if Piketty were talking about legal scholarship rather than returns to capital, in which case, ultimately, should our vicious junior person ultimately act like a total ass and blame the law students themselves, qua collective body? (But who teaches them to act like that, we may say, and watch our bad actor slink away in shame yet again, but this time carrying away the rest of us with him.)

** Maybe the cost of rewarding this bad behavior would be worth paying if law review "rankings" meant anything. But they don't and we should stop taking them seriously. Of course, it would be incredibly costly to do so so long as law review articles typically have to be 80-page monstrosities full of "pincites" and explanations of the simplest concepts, that is, so long as they are edited by law students.

*** "Incentivizes" is not a damn word. You people need to stop using it. I'm not a prescriptivist normally, but this is a barbarism.

Posted by: Paul Gowder | Mar 28, 2015 10:41:24 AM

"I see nothing in the OP to suggest that a payment was made from the reneging professor to the journal. It what sense does the efficient breach analogy apply?"

I don't think it was an analogy but an actual efficient breach.

In any event, presuming a contract is formed, I am unfamiliar with any requirement that an efficient breach can only occur if actual money changes hands, as opposed to other consideration. All you need is a means for the breaching party to compensate the other party; in this case the breaching party could compensate the law review staff through quantifying the value of lost time, money, or reputation. The fundamental justification behind the efficient breach doctrine -- that contracts are intended to promote efficient economies and in service of that breaching one should not result in moral opprobrium -- would be followed.

Posted by: publius | Mar 28, 2015 11:20:00 AM

I wonder if Temple ever takes transfer students from lower-ranking schools, including students who have already committed to joining the law reviews (or other student organizations) at those schools?

Posted by: a | Mar 28, 2015 11:26:10 AM

Intuitively, I agree with and actually feel anger about this professor's actions. It unequivocally reflects generally ethically vacuous behavior all law students will experience in practice, but it is an awful lesson about business and lawyering to have to participate in. People with fewer moral constraints DO tend to reap the benefits of their "flexibility", but most of us like to pretend that the risks of such behavior outweigh the benefits. But, I think what actually makes most of us angry is not that there is anything bad PER SE about backing out on this type of agreement. There are plenty of articles to replace the one lost and there was likely little additional work done post-offer in reliance on the acceptance. So, the harm is largely psychic (for the law review) and systemic for the rest of us. However, the systemic harm results only from the fact that mos of the rest of us obey the "norms of professional courtesy" in this case. Why do we do that? And, what is to say that this particular norm is good? We obey the norm because we see ourselves as norm-abiding people, because we like norms generally, not because we have bought into the norm itself. Indeed, most of us believe the norms of legal academic publishing are woefully problematic. Still, we abide by them and want everyone else to do so, as well. That is where the outrage comes from. I want to do what you did, given the chance. But, I won't. I have "integrity." Maybe this guy has "integrity" too. Just not my kind of integrity or your kind for that matter. Just not one that requires abiding by valueless (?) norms. (He presumably did not lie or cheat or do anything that violated his moral principles. The fact that he probably was advised to do so from someone senior indicates that he knew it violated the norm but that he didn't buy or commit to the moral foundation of the norm. I don't need advice about whether to violate my moral code, if it is my moral code, I just abide by it.) That's why we're mad (as opposed to disappointed or frustrated). Because sometimes we want his kind of integrity.

Posted by: whyarewereallymad? | Mar 28, 2015 12:00:23 PM

A - I assume that any offer to join a law review is contingent on your being a student at the school.

Posted by: VAP | Mar 28, 2015 12:01:16 PM

Based on what's been relayed, I think this is a breach of professional norms. And while I grant the point that authors do other bad things (as do editors), this is a clear norm that is in theory easily policed. If I were the law review editors, and someone asked to be released from the commitment to publish, I might feel little alternative -- who wants to police specific performance by an angry author? -- but, unless I were satisfied by some excuse, I would calmly explain the following:
1. The rejected law review will accept the withdrawal as a declared breach and inform the law review accepting the piece of what the author had done. There are not insubstantial risks that both offers will be lost.
2. The author would henceforth be barred from any consideration at the rejected review (and maybe other reviews at the school might join on this front).
3. The rejected review will feel itself under no restriction in publicizing the reneging author's conduct, including in the form of posting its list of barred authors.
It may hard to do anything in this case. But I would support our review's declaration of such a practice, at least as to #1 and #2 (#3 may be more trouble and have side effects). And my guess is that if reviews announced and followed these policies, senior faculty would be less prone to advise junior faculty to behave in this way, and faculty would engage in more appropriate behavior, even if they did not internalize any ethical shift.

Posted by: Ed | Mar 28, 2015 12:19:21 PM

Interesting responses. I do think the behavior is bad, and nothing I've in this unrepresentative thread full of at least some real people suggests that the norms have shifted under me. But I also wonder how many folks wouldn't at least be *tempted* to make this choice if, say, Hypothetical Journal ranked somewhere around 52 made an offer with deadline of 5:00 pm. You accept. At 8:00 HLR calls.

(This wasn't the scenario. It wasn't HLR, and honestly the actual journal chosen would not, in my judgment, materially matter to any sane faculty at tenure time. But it it was, it's a gut check moment, right?)

Posted by: dave hoffman | Mar 28, 2015 12:33:10 PM

Sorry, "*if* it was"...

Posted by: dave hoffman | Mar 28, 2015 12:34:07 PM

Dave, many would be tempted, if they could feel confident that very few would know of their misconduct, and that they could be confident of retaining the HLR offer. People are frequently tempted to behave unethically. I think they should be freed of that temptation, by posing a serious risk that their conduct would be publicized and that HLR might pull the plug too. I see no reason that the rejected law review should lick its wounds in secret.

P.S. It may be that an author will refuse to say whether it is HLR or not. But things would get interesting if it *later* became known, before galleys.

Posted by: Ed | Mar 28, 2015 12:45:34 PM

I think it is a little (not entirely, but a little) like being in the AALS entry level hiring process, accepting a job at East Podunk State (where I taught for many happy years), when, say, Georgetown, where you are VAPing, offers you a TT job (because you got a fabulous LR placement!). I think you can call East Podunk State, tell them your situation, and ask them to let you out of your agreement. If the other party lets you out of your obligation, then there is no need or justification for them blacklisting you. On the other hand, in the LR situation, you do not have the fallback of saying "if you insist, I'll come for a year, but after that, I'm going to Georgetown."

Posted by: "Jack" | Mar 28, 2015 1:05:27 PM

When I was first teaching, I got a call from a family friend who was on the teaching market who, having accepted an offer from a strong specialty journal, received an offer from an HYS flagship. I advised that the norm was very strong and that they were ethically bound and likely better off in the long run sticking with their commitment. They did, still got a good academic job, and have published something like a dozen pieces in Top 25 journals (though amusingly never HYS). My gut check question is would I have the guts to give the same advice in today's much tighter hiring market?

Posted by: Mid-career Prof | Mar 28, 2015 1:28:44 PM

Sorry for repeated comments, but I am surprised at the willingness to hedge on this.

1. "Jack," the question is whether the other party can expect that, should they refuse to let you out, you will fully perform your side of the deal. My guess is that an unhappy author won't publish anything they think is bad, but that the editorial process will unfold differently than it otherwise would; all the other ways that authors can misbehave become more likely, and editors perceiving that will just fold. Perhaps I am wrong about that. But if I am right, it's hardly an even renegotiation.

Your hypothetical may be less alike than you think. If Georgetown actually holds open the offer for a year, permitting you to say "if you insist," you can probably satisfy the original bargain you struck with EPS, making it less of a wrongful threat (and they would probably let you cut to the chase). Otherwise, candidates willing to honor EPS's rights are probably wary of even asking, because they know that they risk coming to EPS as a would-be traitor and without a clear escape route . . . and that EPS retains leverage in the form of future job perks and security. So they stick to the original deal, perhaps struck after they asked for and were granted multiple extensions. In any event, I think the hazards of treachery by entry professors are far less pronounced than those posed by authors who may accept one offer and retain 30-50 paths of betrayal, all for sake of a morsel of glory.

2. "Mid-career Prof," one thing reinforcing your former advice: considering the tighter hiring market, and the norm's longstanding existence, and the risk that the newly grasped offer will have edged out other faculty from procuring the more august placement, there is a non-zero risk that an ethical lapse of that kind -- if it became known -- will interfere with faculty support at a hiring institution. For ethical reasons or otherwise.

Posted by: Ed | Mar 28, 2015 1:45:03 PM

The question of whether this was an efficient breach seems to hinge on whether "efficiency" means Pareto or Kaldor-Hicks efficiency.

If Pareto, then this was not efficient: one party (the prof) was made better off, but another party (the Law Review) was made worse off.

If Kaldor-Hicks, then this was efficient: one party was made better off, and (s)he could have compensated the other party, making that party no worse off.

Maybe more straightforward would be to say in plain English, "The professor stood to gain a lot, while the Law Review stood to gain very little." That seems like a static/pecuniary-centered view of things, in my view. The harm to the students (and the broader profession, now that this has been published on the Internet) may well outweigh the private benefits to the professor.

Posted by: anon | Mar 28, 2015 2:11:12 PM

Ed,

Great question, why are people willing to hedge on this. I think because it makes a huge difference to the author, and almost none to the journal. LR for most participants delivers full value at the moment of selection and resume revision. It does not matter all that much to the LR students except for esthetic purposes what they publish--in any event, it will not affect their careers. For an untenured person, or someone who wants to lateralize, where they publish, in some cases, is outcome determinative. For someone tenured who has no wish to move, reneging would be mere vanity. For others, it might mean a very different direction to one's career--and in service of what important moral end? Honoring one's word? There's a context. If I've promised to take my Little Brother to a Mets game for his birthday, but that's the day that the AG wants to interview me for the Second Circuit, the trip might get rescheduled.

And Ed, if it is technical contract law you are interested in, could I tell the journal: "I'd be happy to go with the EPS LR as I agreed, but we really should have a written agreement. Of course, I insist that you indemnify me for any lawsuits arising from the publication. No? Too bad, sorry we could not do business."

Posted by: "Jack" | Mar 28, 2015 2:26:05 PM

"Jack," it gets more complicated once you stop focusing ex post. If this norm collapsed, law reviews would I think be forced to require explicit up-front commitments that I thought this norm assimilated. Otherwise, why would they bother to focus time and attention on articles that might not only disappear before they can conclude their assessment, but might even disappear after they had accepted them, *and* (to bring real-time community interests into play) after they had told *other* authors they couldn't accept their submissions because the space was filled?

(Oh, and as a side note: this kind of need-based argument would, if taken seriously and used more often, justify law reviews in discounting the odds of retaining untenured authors from lower ranking schools, which is not the kind of discrimination one wants to encourage.)

Your suggested contract language seems irrelevant, but fine to ask for that -- why not? -- before you agree in the first place. And, BTW, the author facing truly career-determining stakes can always say "I accept, conditioned on your permission to allow me an additional week to wait for an answer from HLR/top 20/whatever." That is in fact sometimes done. Barring that, the opportunity to upgrade seems to have been bypassed, unless you think this kind of release is freely considered and granted by the review. I don't see why the law review should be forced to guess at the author's other preferences, opportunities, and career-based misgivings.

Posted by: Edlastime | Mar 28, 2015 2:51:22 PM

publius:

I don't follow. How does quantifying the value of lost time, money, or reputation compensate law review members? And further, what makes you think that happened here?

Efficient breach is supposed to leave both parties as well off or better than if the breach had not occurred. I don't see how the jilted law review is at least as well off.

Posted by: brad | Mar 28, 2015 2:55:45 PM

Student editors who are in this position can play hardball by threatening to expose the offending author publicly (on one of the many internet fora devoted to these topics) unless he reconsiders his withdrawal.

I know from personal experience that this works. In our case, the threat of public shaming even got the author to apologize and treat us very nicely throughout the editorial process.

Posted by: Former Editor | Mar 28, 2015 4:17:46 PM

If authors can gain more than the journal loses by the withdrawal, at least in some cases, I wonder if a liquidated damages condition for withdrawal would help. For example, if the author withdraws from the agreement on the 1st day, perhaps the author owes the law review $1,000; between the second day and the first week, $2,500; and $5,000 after that. That way, the law review editors get a lot of beer money if the author backs out, which they're happy to have, and the author can pay the damages and accept the better offer, which the author prefers.

Posted by: Orin Kerr | Mar 28, 2015 4:25:25 PM

Thanks for writing on this topic, Dave. Interestingly, with one of my early articles, I had a journal back out after it had committed to publish the article. After seeking advice from colleagues, I let sleeping dogs lie (although I did note my surprise and disappointment in a responsive message). Luckily, I had not yet withdrawn my submissions elsewhere. So, this may not be a one-way street . . . .

Posted by: Joan Heminway | Mar 28, 2015 10:19:39 PM

It strikes me as a bad idea for authors to start paying journals to let them withdraw. For one thing, it might have perverse consequences. We can't evaluate the ex post effects on authors' decisions to withdraw without also looking into the ex ante implications for journals' acceptances and for authors' submission strategies. For example, journals would have an incentive to accept marginal articles and give short deadlines in the hope that authors will take competing offers after the deadline--making the submission process even more opaque and frustrating.

Beyond that, authors and law reviews currently have a non-monetary relationship. I'd think long and hard before putting money in there. There are the crowding-out concerns: authors and editors might feel less solidarity with each other and be less inclined to cooperate during the editing process. There are corruption concerns: once it's acceptable for withdrawing authors to send editors some beer money, the line against paying editors to accept an article no longer seems so inviolate. And there are systemic concerns: the law review system has achieved the relatively rare feat of being open access without charging publication fees, and it would be a shame to lose that by going too far down the road of authors paying journals.

In fact, the more that I think about this, the more troubled I am by the bounties some schools apparently pay for "top" law review placements. I used to think it was merely distasteful; now, I think it's openly unethical. Journal placement is a terrible proxy for scholarly merit, the automatic trigger is blatantly anti-intellectual, and the cold-hard-cash aspect makes a mockery of academic ideals. It perfectly encapsulates every ugly thing law school critics say about law professors.

Posted by: James Grimmelmann | Mar 29, 2015 12:15:14 AM

I'm surprised that people do not think it is acceptable to ask the journal to let you back out. (I've never done it.) Obviously, in every other contract, parties can waive their rights. I think the journal could easily say, "We understand the other opportunity, but we really need to keep the article because [insert reason]." It is true that keeping the author would mean working with a party you had to disappoint, but isn't that true in any contractual relationship? Also, perhaps the journal has less power than the author in the situation, but the editors are about to be lawyers, so it does not seem crazy to expect them to be able to deal with a party asking to get out of a deal. I totally agree that just pulling the piece is wrong, but if you ask nicely without undue pressure, why not give them the opportunity to say sure?

Posted by: anon prof | Mar 29, 2015 9:55:20 AM

brad,

"I don't follow. How does quantifying the value of lost time, money, or reputation compensate law review members?"

That's how damages work. Or that's how compensation works, if you're talking about an economic transaction outside a court. You have to quantify before you can award/give money to the aggrieved party (which in this case would be the law review, not the law review members).

"And further, what makes you think that happened here?"

Not really relevant to my point; efficient breach theory removes the moral opprobrium from the breach and makes it about economics. Whether an actual efficient breach happened in this specific instance is not really necessary to address here.

As a poster notes above, if you approach it in terms of Kaldor-Hicks efficiency the ability/willingness to pay is all that is required, though that simply shifts the question from "did he/she pay" to "could he/she pay," which we still don't know in this situation (though obviously the latter is more likely). Considering that the traditional remedy in efficient breach is expectation damages, and the fact that most areas of the law (and some areas of equity) tend to follow Kaldor-Hicks efficiency rather than Pareto efficiency, it's probably best to approach it through the latter (or some variation), though Pareto is feasible too (or even some more exotic social welfare function like Bergson-Samuelson), but again I was simply stating that I suspect a lot of the people excoriating this on moral grounds would have no problem with breaching in general in other commercial transactions not involving the legal academy.

This is not some indictment of legal academy as corrupt. Obviously many legal academics are vehement opponents of efficient breach on moral grounds. It was more of a comment on the tendency of people in every field to be a lot more sanguine when applying their theories to people other than themselves (try telling a pro-outsourcing economist that you're replacing him with a less expensive foreign economist, or psychoanalyzing a psychoanalyst).

Posted by: publius | Mar 29, 2015 9:57:30 AM

publius,

That looks a lot like voodoo ethics to me. "I'm screwing you over, and I'm not going to compensate you for your loss. However, my actions are completely moral because I could have compensated you. Again, I have no intention of doing so. Have a nice day."

To put it differently, I don't think whether or not an efficient breach happened in this specific instance is irrelevant, it's the whole the ball game. If as you say efficient breach removes the moral opprobrium *and* the author in question performed an efficient breach (i.e. made the law review whole) than the commentators heaping moral opprobrium on him are wrong to do so. In the far more likely event that he did not make the law review whole, the moral opprobrium is well deserved and the efficient breach line of discussion is a red herring.

Posted by: brad | Mar 29, 2015 10:10:28 AM

Also, I'm very interested in seeing one of these cases where a court refused to award damages in a breach of contract case because it was sufficient to find that it could have awarded damages.

Posted by: brad | Mar 29, 2015 10:12:16 AM

brad,

It's not ethics, that's the point. It's economics. If the point of contracts is to efficiently allocate resources in an economy, then when contracts get in the way the proponent of efficient breach argues that you correct that inefficiency by breaching the contract.

Let me step back: the overwhelming response here seems to be that by withdrawing the article the author was wrong, full stop. A law-and-economics devotee (and who knows how many here are proponents of efficient breach theory? I could be totally wrong on that) would say that no, it was just the first step in maximizing efficiency.

You characterize the compensation in this case as being required to "remove[] the moral opprobrium" but that's not really the right way of thinking about it. Under the law and economics model, the moral opprobrium doesn't attach in the first place. The compensation is required (and will be compelled) to maintain the functioning economic system and encourage forming efficiency-promoting contracts.

Honestly, even if you disagree with efficient breach theory contract law has traditionally divorced morality from obligation more than other branches such as tort or criminal law, as can be seen in the fact that generally you can't get punitive damages for breach of contract.

And if you want to argue the law-and-economics position against the moralist one, you have picked the wrong person because I am actually a moralist. I just find the passions exhibited in this thread kind of funny considering how coolly logical many legal academics analyze these kinds of issues when they're not themselves implicated.

Posted by: publius | Mar 29, 2015 11:06:22 AM

Just guessing, but I expect any students reading this take no comfort from the economic analysis. The issue, as I understand it, is whether a professor can unilaterally pull a piece after accepting an offer of publication, on terms not permitted by the agreement, or ask for permission to do so. Can this be analogized to breach or renegotiation in a standard contractual setting? Maybe, one in which there is no mechanism for enforcement if renegotiation is refused -- other than a remote prospect of reputational sanctions, diminishing with each passing comment -- and compensation is entirely unrealistic, leading authors (were they undeterred by a professional norm) free to make their own, doubtless unbiased calculation about transaction-specific efficiency and broader systemic considerations.

Anonprof, re your question about permission, here's the nub for me. Is the author in question really, truly, saying something like this: "I made a commitment, and I will stick by it if you decline to release me from the obligation: the choice is yours, and I will cooperate fully and happily with the publication process. I just wanted to ask in case you were indifferent, or happened to agree with me that my needs were more pressing than yours. No pressure, thanks for all you do, etc. Oh, and I own this decision, and feel free to communicate it to all concerned." Maybe some can imagine themselves saying those words and genuinely meaning them, but we've as yet no reason to think that it corresponds with the facts prompting this post. If it did, and consent felt freely given, I doubt we'd see the frustration/disappointment expressed originally.

I continue to think that the time for negotiating such an out is before accepting an offer, that the present submission scheme assumes a professional norm in which a non-caveated acceptance is binding on both absent much more unusual circumstances (not, e.g., a subsequent better offer for the author, or a subsequent better submission to the journal), and that the consequences of relaxing this norm would be or should be its explicit adoption by journals.

Posted by: LastimePS | Mar 29, 2015 12:11:36 PM

When I was a Law Review Senior Article Editor, we had an author accept with our sister specialty journal, but withdrew when a better offer came in. And then the author tried to expedite to our main journal. (Apparently, the author had not yet accepted at the higher offer and was trying to work the expedites again).

I dinged the article promptly and let the author know why. I think he found my response unprofessional, but my specialty-journal colleagues were glad we stood by them. As the OP says, law review generates a lot of passion and loyalties.

I was mostly stunned by the sheer chutzpah involved, though. Did the author think law review staffs don't talk to one another?

Posted by: SM | Mar 29, 2015 2:00:41 PM

I encountered this scenario early in my academic career, but coming from a long stint in practice did not waver for a second in thinking that I was ethically (if not contractually) bound to my agreement. What kind of lesson does this send to the Temple Law Review staff? In practice they will encounter countless examples where an unethical shortcut might prove momentarily advantageous, and there will be much more on the line than a law review placement.

Posted by: JBellin | Mar 29, 2015 2:24:50 PM

I find it amusing that Former AE considers "breaking the commitment" to be a "dick move," but presumably doesn't hold the same assessment regarding the practice of rejecting hundreds of articles without reading them.

I tend toward the structuralist assessment that I see as implicit in Dave's initial post. The law review process is set up so that dick moves are routine at a variety of points along the way, and those who make dick moves from one posture are often (a) outraged when others in the process make dick moves; (b) unable to take the perspective of those others to understand why they make dick moves; and (c) oblivious that they, themselves, also make dick moves as a matter of course.

Posted by: SMRG | Mar 29, 2015 3:10:26 PM

SMRG - as someone who is currently not even getting *rejections* because I didn't use lower-ranked journals as chum, I get the intuition. The system at all points, including in this instance, rewards bad behavior. But while that does counsel empathy, it doesn't mean we should celebrate, right?

On efficient breach, how would folks feel about backing out of an offer to clerk for a district court and taking an appellate judge's offer? No way, right? And not *just* because of the enormous consequences.

Posted by: dave hoffman | Mar 29, 2015 3:18:29 PM

Dave-

I agree that this case is not a cause for celebration, so much as an occasion for empathy and introspection. It sounds like the law professor in question behaved badly. My comment was meant to suggest that the reactive attitudes being invoked here might be tempered with a dose of self-criticism, especially by those (like Former AE and SM and anyone else who has been a student editor but not a scholarly producer; or those in the legal academy who outsource their professional service responsibilities to students and then throw shade) who have also committed serious offenses.

Perhaps the Temple LR can start some kind of semi-permanent shit list as a way of learning from this event?

Posted by: SMRG | Mar 29, 2015 3:29:16 PM

SMRG, you set up a false symmetry. One set of parties to this interactions is paid very highly for its work and the other pays in order to work. Perhaps in the legal scholar community should consider taking some of their extraordinary compensation and putting it towards paid reviewers if they wish to continue skirting what every other scholarly community considers part of the job.

Until then, some gratitude towards those you are exploiting would be in order, not accusations of unethical behavior because they didn't spend thousands *more* hours reading law review articles.

Posted by: FormerEE | Mar 29, 2015 7:51:25 PM

I so wish there were a way to voluntarily opt in to a more transparent submission process. Like Dave Hoffman, as a matter of principle, I do not submit to lower ranked journals that I would not be happy publishing in. This is probably hurting me right now, as I am generally being ignored because I am not peppering the law reviews with expedite requests. How about a feature on Scholastica that allowed me to indicate to the law reviews that I was only submitting my article to say, 30 other journals?

Posted by: Junior Prof | Mar 29, 2015 8:36:08 PM

Junior Prof,
You could do so and indicate as such in your cover letters to law reviews. Furthermore, you could tell each of those law reviews you would accept any offer they chose to make and refrain from expediting. My sense is that editors respond positively to such incentives.

Posted by: Steven R. Morrison | Mar 29, 2015 9:34:49 PM

@ Steven R. Morrison, doesn't your strategy presume the opposite of Junior Prof's implication -- that the journal is making it to read the cover letter. But, if Junior Prof wants a T30 placement and can't expedite because s/he submitted only to the T30, they will be unable to respond to the incentive. If Scholastica, on the other hand, allowed one to indicate this information--maybe like the original version of their diversity metrics?--journals could see who was making these promises and prioritize their time accordingly.

Posted by: waves? | Mar 29, 2015 10:24:08 PM

This kind of conduct is completely unethical. At the same time, it's also a symptom of the unhealthy obsession with prestige and proxies in our profession. I have always withdrawn from all journals immediately after accepting an offer, and will continue to do so. But if I were to advise a VAP in that situation, I'm not sure what I would recommend. The stakes are tremendous and an eye-popping placement can really be a game changer.

Posted by: hypo | Mar 29, 2015 10:39:20 PM

I think you SHOULD name the professor. Being outed for such despicable behavior will go a long way to discouraging such actions in the future. I hope all the very least that you write this person's home institution and inform the tenured faculty there of this person's outrageous behavior. Sickening!

Posted by: Anonprof | Mar 30, 2015 10:45:47 AM

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