Professor Dzienkowski at Legal Ethics Forum has posed timely questions regarding ethical duties in the law review submissions process. Among the issues he flags, he reminds us that in the bidding-up game, we should be candid about the nature of the offers that we are attempting to use as leverage. I agree, even though I have been tempted to mumble or fade off the last part of an offer to make it sound better.
I teach a seminar in Business Ethics, and we have recently discussed this phenomenon: in situations that we believe to be amoral situations or unfair situations, we don't feel obligated to follow ethical duties anymore. (For example, in sales, everybody lies and everybody expects to be lied to, so I don't have a duty not to lie if I'm a salesman.) I think I have almost fallen prey to that misguided analysis in the bidding up game. I rationalize to myself that the game is stupid or unfair and that everyone else playing the game is lying or engaging in unethical behavior. Therefore, if a law review editor is going to judge my paper based on my law school affiliation or dagger footnote, then I am justified in saying that my offer is from "University of State" and not "University of State -- Western Branch." I have never succombed to the temptation, I am happy to say.
Another ethical dilemma assistant professors hypothesize about involves retracting an acceptance given to a law review when a better-ranked law review calls a week or two later. I have known several people in this position, and none of them retracted their earlier acceptance. The most frustrating case I know of involved a colleague who was in the middle of the AALS hiring process and accepted a placement at a specialty journal at Harvard. Then, the main law review at Stanford called. He did not retract his earlier acceptance, although I'm sure the temptation was high given his job search. All's well that ends well -- he is in a situation that is great for both him and his wife -- and I hope that he's glad he took the ethical high road.
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