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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


I suspect if most of you spent more time preparing for class and less time on this first world alleged problem law students would be better off

Posted by: Steve Prof | Apr 1, 2015 6:55:56 PM

As reflected in the comments to this post, withdrawing the article clearly violated some received professional norm. However, as a couple of commenters have observed, no one has offered a coherent justification for the norm. So why enforce it? More to the point, why exactly do we bother with law reviews at all anymore? Hasn't SSRN rendered them essentially irrelevant? Perhaps we should look for more productive ways of occupying our students' time.

Posted by: Brian L. Frye | Mar 31, 2015 5:08:42 PM

Before outing the person, why not give him or her a chance to do the right thing? When this happened at our journal, it led to a productive discussion and an apology from the author. (The author was on the market at the time, and our faculty advisor got involved.) For what it's worth, the article was well received despite not placing as well as it could have and the author ended up with a job.

Posted by: Former Editor | Mar 31, 2015 4:26:31 PM

Thanks very much to everyone for their thoughtful feedback. TLR really appreciates the care with which you've engaged in discussion on this topic. I know I speak for the entire Editorial Board when I say it is comforting to know we are supported as we navigate the articles process.

We've nearly filled our Volume for next year but are still seeking one more article. If you've written on administrative law, public health, or insider trading and have not yet accepted an offer elsewhere, we would be very happy to review your scholarship. Please contact TLR via Expresso or Scholastica.

Posted by: TLR_EIC | Mar 31, 2015 2:04:24 PM

Just another data point: this situation happened to me early in my career, pre-tenure. Got an offer from a top 10 law review. Deadline was noon on a particular day, and I accepted. A few hours later, I got an offer from a top 3 law review, because the editors didn't read my expedite request carefully and didn't realize the deadline was at noon. (Doh!)

I must admit that I thought about this for just a moment, before regretfully declining the new offer. In the end, the ranking difference wasn't all that great, so not as much of a temptation as it could otherwise have been.

It helped that my Dean later learned of this and wrote me a very nice personal note. This does suggest how ethical/professional norms can usefully be reinforced, both by leadership and by posts like this.

Posted by: JD | Mar 31, 2015 12:57:44 PM

On the subject of getting better offers, by the way: one thing the untenured professor can do is say that he *could have* published in the better journal,because it thought his paper was good enough to publish.

I made that argument in my junior days, though I don't know if it helped. I had an acceptance from Virginia, if I remember correctly, but Yale said they'd already accepted worse papers than ours. We turned down Virginia, then Yale didn't accept our paper after all, it was too late for Virginia, and we ended up publishing with UCLA, which is great except that it was our home institution's law journal, and hence rightly discounted.

Posted by: Eric Rasmusen | Mar 30, 2015 9:15:34 PM

"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."

I'm always amazed by the lengths lawyers will go to to protect crooked lawyers. If what this guy did is bad, then name him. It's just telling the truth about him to the world. By not telling, you are letting him go ahead in his career with people thinking he's got integrity, so you are enabling him--- and teaching your students that the worst that can happen if you break the rules is that people say bad things that will never come back to actually hurt you unless you have a strong conscience-- which you don't.

Judges do the same thing. They say a lawyer's behavior is outrageous--- and then protect him by not revealing his name! At the same time, of course, lawyers and judges have no qualms whatsoever about revealing all kinds of personal details about innocent plaintiffs, victims, and defendants. It's sickening.

Posted by: Eric Rasmusen | Mar 30, 2015 9:11:59 PM

I am Anon @ 3/30/15 4:19.

I work at a Tier 1 law school, and since I have been here someone has been denied tenure for placements that were lower than the institution will count. He is no longer at the institution and does not currently have a full-time position. I will not pretend like there weren't other reasons, like lower than average teaching evaluations, but a tenured faculty member told me that the placements were an issue.

People make broad generalizations about placement and what is good and what isn't, but everything is local. In my locality I initially thought Temple would be a strong placement, and then I checked its Washington & Lee ranking, something that our school sometimes takes into account. I decided it wasn't worth chancing a placement that my institution might consider iffy based on the the two rankings, so I let the offer lapse. I would not have gone back on my word if I had accepted and then realized it might be institutionally unacceptable, but I might have asked to be released, and I would hope the students would understand.

All that to say, my fears as an untenured person about placement impacting my ability to feed my kids are rooted in fact and not in fantasy or speculation.

Posted by: Anon | Mar 30, 2015 9:01:35 PM

Should Prawfsblawg be the site that outs any law professor who allegedly engages in culpable behavior? Maybe the site can be re-branded as TMZPrawf.

The fact that some law professor, somewhere, withdrew an acceptance on some article doesn't terribly interest me.* I find the bloodhounds on this thread far more fascinating.

*For whatever it's worth, my publication record would disprove any suggestion that I personally withdrew an article to place it somewhere fancy.

Posted by: andy | Mar 30, 2015 8:13:40 PM

What if you just reveal the name of the institution at which the professor teaches? That way, if it's a systemic issue - like bad advice from mentors - the institution suffers and not so much the individual.

Posted by: Anonprof | Mar 30, 2015 8:06:53 PM

So I take it I'm the only one who thinks it is ironic - and very, very funny - that so many anonymous people are calling for another anonymous person to be outed? What's next, thumbs up or down, voted by the preponderance of comments on the thread?

Mr. Brock - now that's an interesting story. I wonder how he'd feel about tax shelters!

Posted by: dave hoffman | Mar 30, 2015 7:39:51 PM

I agree that the person's identity should be revealed. They are free to pull the article, but they should also have to accept the consequences of such actions.

Posted by: Senior Law Prof | Mar 30, 2015 7:35:37 PM

Dave: As an 84 year-old retired lawyer perhaps I am from a different time and place. But I always thought that personal honesty was the key to being a lawyer. I recall that in preparing to take the Virginia Bar I reviewed Professor Woodbridge's notes (a popular study aid at the time) within which he discussed the application of the statute of limitations. He did not like the use of limitations to avoid paying a legitimate debt. In fact, he said he would advise the client of the defense but tell him he would have to get another lawyer if he wanted to use it. Now that, my friend, is a LAWYER!

Sylvester (Jim) Brock

Posted by: S Brock | Mar 30, 2015 7:22:37 PM

Yes I know personally of someone at my institution that was denied tenure for that reason.

Posted by: anonprof | Mar 30, 2015 7:11:57 PM

Anon @ 3/30/15 4:19:
Do you know directly of anyone that was refused tenure by a law school because of insufficiently prestigious journal placement? Not third or fourth hand, or heard a story once, but direct knowledge? Anyone else?

From what I've seen the law school tenure process is a near guarantee, especially as compared to most the social sciences.

Posted by: DualAppointment | Mar 30, 2015 6:54:22 PM

If you buy the efficient breach argument, you should still out the candidate. The candidate should internalize the reputational consequences of her behavior. This doesn't happen if she does this in the dark.

Consider the selection implications for other candidates on the market. Assuming similar quality papers, candidates that keep their word may be at a significant disadvantage.

Posted by: On The Entry Level Market | Mar 30, 2015 6:25:38 PM

Want to put an end to this? It's easy -- just publish the names of those who engage in this behavior.

Posted by: FedupLawProf | Mar 30, 2015 5:11:04 PM

I received an offer from Temple several weeks ago and was given 2 business days to respond to the offer. Obviously the professor shouldn't have gone back on his or her word, but refusing to give the standard 7 days is also putting untenured professors in a bad position. For good or for ill, my ability to get tenure is tied to how high a placement I receive, which means I, for strong professional reasons, have to do my best to get the highest placement I can. For me, that meant forgoing the offer and waiting to see if something else came in, but I'm early in my tenure clock, so I have time. The professor should not have gone back on his or her word, but students should keep in mind that their decisions are tied to people's livelihoods. It is not a game for the untenured. It's the ability to pay a mortgage, student loans, and feed kids. I am certainly not suggesting that the students aren't doing a lot of work. Students are managing a huge load of responsibility between class, journal, life, etc., but to suggest that the placement means more to the journal members than to the untenured professor is, I think, naive. That doesn't excuse the professor's bad behavior, but I can understand it.

Posted by: anon | Mar 30, 2015 4:19:10 PM

The theory of efficient breach is not quite so bloodlessly act utilitarian as it's being portrayed here. Maybe in the very original incarnation but I'm pretty sure even Posner has backed off from the arguments that would also endorse "efficient theft" (I like your car more than you do, so I drive off with it and leave a suitcase full of money behind... efficient!). Here you'd want to look at the overall effect on the submission market if publication contracts were seen more as one sided options than binding commitments.

I'm inclined to agree with Paul Gowder. The reward for good behavior is fleeting gratitude from a student who will be gone in two years. The reward for bad behavior is a permanent gold star on your CV. What do you expect people to do?

Posted by: Jake | Mar 30, 2015 2:24:00 PM

I do not see the ethical problem here. If the author waives copyright, the review has the authority to reprint, but not the right to override subsequent second thoughts of the author. If the contract compels the author to allow the journal to reprint the piece and that contract is inviolable through to publication, then sue for breach upon withdrawal. If the norms of professional courtesy bind both sides, the journal could negotiate -- allow the piece to run in exchange for a symposium assignment later, perhaps. Acceptances are subjective decisions and the long lag time from acceptance to publication places many authors in a double bind. In addition, shouldn't scholars and graduate students be invested in assuring that the best articles appear in the best publications?

Posted by: JEH | Mar 30, 2015 2:21:44 PM

How many days after signing the contract did the professor withdraw?

Posted by: anonprof | Mar 30, 2015 2:01:48 PM

Senior faculty encourage this sort of behavior? That is even more disappointing than the youngster behaving badly.

Posted by: jt | Mar 30, 2015 12:44:32 PM

I don't think the behavior is outrageous. I just think it's wrong. And I certainly am not going to name the professor based on the exhortations of an anonprof!

Posted by: dave hoffman | Mar 30, 2015 10:52:05 AM

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

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

@ 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

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

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

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 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 - 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

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

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

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

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


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

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


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


"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

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

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

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

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

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


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

"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


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

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

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

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

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

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

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

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

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

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

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

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

"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

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

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