ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Monday, April 29, 2024

Law Review Contracts

In Spring 2023, I was lucky enough to have one of my articles accepted for publication in a law review.  Of course, the offer was contingent on agreement to terms, but I didn't give that much thought.  Early in my career, I engaged in some negotiating with law reviews about my right to post drafts online prior to publication, but that practice is now so common that the standard contracts allow for pre-publication posting of drafts. 

However, this contract had two provisions that I found objectionable.  One was a blanket indemnification provision, which required me to pay fees and costs should the university pay a judgment or settlement in connection with any breach of the contract by me.  The other essentially rendered the agreement illusory by granting the law review the right to withdraw its offer of publication at any point in the process for any reason.  The law review must notify me of its reasons for the withdrawal, but the contract gives me no opportunity to object, so the notice provision is not helpful, beyond its value as evidence in litigation, the cost of which I would have to bear should I lose.

I surveyed colleagues about how to handle this situation.  I suspect that most professors just sign these things without much thought, as the likelihood of litigation or liability associated with legal publications is vanishingly slight.  Some law professors shared with me that they have just crossed out objectionable language and returned the documents, assuming that the law review editors will not pay much more attention to these matters than we do.  Others try to negotiate, and some told me that they had withdrawn their articles upon being told that the law review would not change its contractual terms. 

Some colleagues who have served as advisors to law reviews lamented the careless contracts that they found upon assuming the role.  They consulted with university counsel and soon contracts more protective of the universities' interests were drawn up and set in stone.  Faculty advisors were told that they contracts could not be changed; they communicated the same message to student editors, and so things remain until institutional memory fades.

I wrote to my student editors requesting that two provisions of the contract be removed or edited.  As I feared, they responded that university counsel would not permit any changes in the contract, and they knew this because another author had requested changes, and they had been told that they could not accommodate any changes.  I wonder what became of that author's submission.

Aaup-logoSome colleagues suggested that I might insure against this risk, so I looked into it.  The American Association of University Professors AAUP) provides limited coverage, but it does not cover all of the most likely risks attendant to publication, and the combined cost of joining AAUP and buying the insurance would exceed $500.  I next considered whether a general business liability insurance policy might do the trick and be a bit less expensive.  Nope.  Errors and omissions policies exist for publishers, but getting an insurer to write a policy for an author would be prohibitively expensive.  

At this point it occurred to me that the law review with which I was hoping to publish is housed at a university with a university press.  It follows that the university likely already has coverage that addresses precisely the risks for which it was seeking indemnification from me.  I spoke to a relative who had a long-time career as an underwriter, and he reckoned that such coverage comes pretty cheap to a university, as a rider or addition to its general commercial liability coverage.  

Armed with these surmises, I wrote to my student editors again.  It seems to me that the indemnification language in their contract is a solution in search of a problem.  I also proposed language that would allow them to terminate the agreement for cause, with notice and opportunity to cure, so as not to render their promise to publish illusory.  I asked them to share my concerns with their faculty advisor and university counsel.   Otherwise, I was going to have to withdraw my piece reluctantly.

Of course, the students are just caught in the middle.  They don't have any say in the verbiage in their form contract.  They liked my article, took the time to read it, discuss it, consider it for publication through their own internal processes.  They wanted to publish it.  The contract was an obstacle that might make all of the work that they had done thus far a waste of time.  Meanwhile, the opportunity to make offers to other authors may have passed.

The whole experience saddens me both as a contracts teacher and from an institutional perspective.  As a contracts teacher, I try to persuade my students that, because contracts facilitate mutually beneficial transactions, if they really want to make the world a better place, they should consider transactional work as a possibility.  If they do consumer contracts, they can help police one-sided transactions to strive for contractual approaches that allocate risk and reward in a socially responsible manner.  But experiences like this one remind me that one-sided contracts can sow distrust and thus prevent mutually beneficial transactions from arising, as I previously noted here.  I had hoped to work with this law review, as I have worked with dozens of others, and now that might not happen.  The benefits on both sides are largely intangible but not negligible.

From an institutional perspective, I think this problem arises because of a few bad actors – authors who malign others, treat law review editors shabbily, or fail to diligently respond to reminders about deadlines. University counsel might not think that a law review is an enterprise important enough to justify risk of exposure to liability, even if that risk is very slight.  If I were to pull my piece, it would have zero impact on the rank or reputation of the law review.  The law review would publish something else.  University counsel thus has little incentive to change the terms of a contract that it regards as protective of the university’s interests. 

But university counsel is focused on risk management, and without forceful advocacy, they will prioritize those business concerns over furtherance of the university’s educational and scholarly mission. Moreover, given the networks of law review editors, faculty advisors and university counsel, all law reviews may soon adopt similar contracts.  Untenured professors will then have no choice but to put up with contract terms that are so one-sided that they would raise serious questions of unconscionability but for the likelihood that a court will treat law professors as sophisticated parties.  Contracts Profs know that sophistication doesn't help when an entire industry adopts similar, one-sided terms.  

My university's general counsel teaches at our law school, and she's a good egg, so I sought her advice on the matter.  I expected that she would give me insights as to how this all looks from the university counsel perspective, but she was as appalled by the language in the contract as I was.  She offered to call her counterpart at the law review's institution to see if hearing from a peer might yield some results.  She thought there was a reciprocity problem. Universities need professors.  Professors need to be able to publish (often through other universities publications) without putting their financial stability at risk.  But then she thought about our university's  insurance coverage and suggested that our policy might cover me in the case of a law suit relating to my professional activities.  After researching the issue, she concluded that it was not clear that our policy would protect me, and she advised me not to sign the contract.

Even if my university's insurer could provide a solution for me as to my own exposure, there would still be the other provision, which allows the law review to withdraw its acceptance at any point for any reason.  In future submission cycles, I will begin negotiating the contractual terms before I withdraw my piece from consideration elsewhere, and my ability to find a law review with reasonable contractual terms will be an important component of my decision where to publish.  But if, as I expect, law review contracts converge on language that leaves authors exposed and unprotected, I may just conclude that the world can live without my scholarship and I can live without the risks associated with publication.

In the end, I was able to get the law review editors to appeal to their university counsel and accept some of the revised language that I offered.  It didn't give me all the protection I wanted, but it gave me enough that I did not lose any more sleep over the issue. Screenshot 2024-04-27 at 4.56.03 AMThis year, I took a break from the student publication mishegoss, and just published with my law school's Law Review, after reviewing their wholly unobjectionable terms.  Given that people are far more likely to come across my work on the web than through a publication, it seems like the reasonable choice, and working with our editors was very easy and enjoyable.  

https://lawprofessors.typepad.com/contractsprof_blog/2024/04/law-review-contracts.html

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Comments

I had a similar experience, albeit with a state bar. I was contacted about writing one or more business law bar essay questions for a nominal fee of several hundred dollars. Because it wanted the question, an analysis, and a model answer, it was going to take a bit of time, and because of the nature of the assignment I wasn't going to get to keep any of the work product. That seemed sensible on the bar examiners’ part.

The state bar in question wanted me to sign an agreement, which I didn't see (because it was on an encrypted email) until after I had spent several hours writing a damned good question, analysis, and model answer.

I found the agreement and was prepared to sign and send but then thought maybe I should read it first. OMG. Over the top aggressive in its one-way indemnification (me to them for all sorts of things including personal injury or death arising from my work - hmm, somebody encounters my question and has a stroke during the exam???), inapplicability (adding them as additional insured to my auto insurance?????), representations and warranties up the yin-yang, ADA compliance, and agreement to a dispute resolution forum at least 2,500 miles away from Boston.

I raised this with the bar exam administrator, who went back to the state bar's lawyers, who refused to budge. So I declined to sign the agreement and told the administrator that it was a shame because it was good but I was just as happy to keep it for myself to use on my students.

I hereby propose a new course: Advanced Topics in Business Law: Deal-killing Lawyering and How to Avoid It.

Posted by: Jeff Lipshaw | Apr 30, 2024 9:57:18 AM

I wouldn't sign the indemnification; heaven knows what trouble students could create, and then expect me to pay for it. But the other provision -- right to withdraw its offer of publication at any point in the process for any reason -- is pretty standard in publishing contracts. There has been a similar paragraph in every contract I've signed with a university press. Although they have all said "if quality is unacceptable" rather than "for any reason," the outcome is essentially the same. Of course, in the case of a university press, I would still get to keep the advance, and submitting elsewhere wouldn't be prisoner to the ridiculous spring/fall submission cycles.

Two other observations: You should join the AAUP whether or not you need the insurance. Dues are a small price to pay for protecting academic freedom. (I say this notwithstanding my disagreement with the current AAUP leadership on many issues.)

Finally, you were not lucky to have an article accepted. The law review was lucky to have you as an author.

Posted by: Steven Lubet | Apr 30, 2024 1:56:42 PM

Steven, thank you for the kind words about my scholarship. I think the analogy you draw between book publication and law journal publication is problematic. I think general counsel overlook the differences in modeling law review Ks on publishing Ks and therein, I suspect, lies the problem.

First, by the time my piece was accepted, it was already in pretty much its final form. A book may be accepted based on a proposal, and only 10-20% may be written.

Second, there is no compensation of any kind for law review publication (please correct me if I'm wrong about this, and I will definitely submit to that journal!). Presses take a financial risk with every book deal. Law reviews are not seeking to make a profit and so, absent some pretty ridiculous conduct from the author, they have no reason to withdraw their offers after acceptance.

Ironically, the journal in question accepted my substitute language relating to its right to withdraw at any time. I proposed language that I presumed corresponded to their actual practices, and I guess they agreed.

Posted by: Jeremy Telman | Apr 30, 2024 4:30:19 PM

Actually, Jeremy, university press contracts allow for rejection even after submission of a completed manuscript. The same is true for peer-edited scholarly publications, which also occasionally retract articles.

Regarding compensation, advances can be substantial from the major publishers, but I believe they are nominal or nonexistent at the smaller presses.

I have not directly heard of any late-stage manuscript rejections at university presses, but there was a recent, highly-publicized rejection of a completed article by the Harvard Law Review.

Posted by: Steven Lubet | May 1, 2024 3:38:29 AM

Who needs law reviews anymore? https://info.cooley.edu/blog/showcase-your-scholarship-part-three-self-publishing

Posted by: Otto Stockmeyer | May 1, 2024 6:08:35 AM

Putting the objectionability of publication-agreement terms aside, the market solution to this is for law journals to publish their standard publication agreement on their websites, along with a statement (if true) that the terms are not negotiable. Then authors for whom those terms are unacceptable can avoid submitting to that journal in the first place. And, if the practice is widely adopted, the broad transparency may induce a race to the top in terms of loosening some of the more problematic terms. (I'm aware that many journals already do this.)

Posted by: Scott Dodson | May 1, 2024 10:10:29 AM

That is the elegant solution, Scott. There are cat-herding issues involved: (a) getting them all to do it; (b) getting them all to keep the public information about their journals current. Relatedly, I am no longer surprised, but it is striking to me how few journals have up-to-date electronic versions of their recent issues available. Even when journals have spaces on their pages designated for electronic issues, most update them only sporadically. To the extent that such problems can be overcome, I worry that publicity might lead to a race to the uniform and that race would more likely lead to the bottom (from the authors' perspective) than to the top.

Posted by: Jeremy Telman | May 1, 2024 12:35:43 PM

Let's not forget to join the AAUP.

Posted by: Steven Lubet | May 1, 2024 3:56:52 PM

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