Friday, March 21, 2008

Fairness, Efficiency, and the Reliance Interest in Law Review Article Placement

Posted by Jeff Lipshaw

As I continue to get rejections from law review articles editors based on the expedite request I sent out with a deadline date two weeks ago, and having since accepted a publication offer, I have been going through a little thought experiment (read: fantasy) about how to deal with a tardy offer coming from, say, a "top fifteen" law review.

Would you abide by your commitment to the first one?

I can imagine this conversation:

Professor:  "Hello, EAE from East of the Rockies Land Grant University Law Review."

EAE:  "Hello."

Professor:  "A funny thing happened on the way to class today."

EAE:  "Yes?"

Professor:  "You know that piece of mine you accepted three weeks ago?"

EAE: "Yes?"

Professor:  "I just got an offer from the Founded in the Eighteenth Century East Coast University Law Review."

EAE:  "And?"

Now here we have a divergence:

(A): Professor Shavell and Kaplow Disciple:  "The utility I will gain from disavowing my acceptance far exceeds the cost to you.  This is an efficient breach.  See ya."

(B)  Professor Fried Discipline:  "I am morally bound to my promise to you.  I just wanted to let you know while I weep quietly."

(C) Professors Fuller and Perdue Disciple:  "Have you started cite-checking yet?"

(D) Professor Lipshaw:  "I am legally and morally bound to you.  Would you, however, release me from the obligation?  What can I offer you for the release?"

Tune in later for my views on another (from my perspective) fantasy:  the curse of the "top five" law review "short decision window" strategy.  To paraphrase Tevye:  "May the Lord smite me with it, and may I never recover."

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Had exactly that experience. I was untenured. I made sure I went around to all my tenured colleagues and asked them their opinions. They agreed I should honor my commitment. The advantage of this was that they all knew I'd been accepted at a higher-ranked review AND that I was the kind of guy who kept his word.

An efficient non-breach . . . .

Posted by: Frank Snyder | Mar 21, 2008 10:25:31 AM

Two true stories:

(1) After receiving a handful of rejections, I accepted an offer from a credible-but-not-outstanding law review. Several weeks later, I received an offer from a top 15 law review, which I immediately turned down due to my earlier commitment. The first law review then proceeded to take two years to get the article into print. (Happy ending: in my conversation with the editor of the top 15 journal, I mentioned another article that was almost finished. He asked me to submit it, and it was accepted and published in short order.)

(2) A top fifteen law review sent a letter to law professors touting their new "early submission" option (this was before email). If the author agreed to submit exclusively to their review, they would agree to respond (one way or the other) within 20 days. So I sent them an article in late February, invoking the early submission option. Twenty days later, no response. I wrote, I called; still no response. Finally, I sent the piece around to other journals, but of course I had missed the "turnover" submission window. I also wrote to the breaching journal, and told them they were estopped to reject the piece, having failed (to my detriment) to fulfil their obligation. Sorry, said the EIC (who has since, btw, become rather famous), but we won't do that. (Happy ending: the article was later accepted by a top six journal.)

Please draw your own conclusions.


Posted by: Steve Lubet | Mar 21, 2008 11:53:09 AM

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