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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

>> 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

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

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

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

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

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

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

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

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

>> 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

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

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

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

"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

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

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

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

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

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

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

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

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

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

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