October 21, 2011
Law Review Gaming and Silly Social Norms
Posted by Usha Rodrigues

Thom Lambert remarks upon a law professor conundrum: you submit an article, accept an offer from Law Review A, and then higher ranked Law Review B makes you an offer.  What to do?

Efficient breach, baby, says Lambert:

As all first-year law students learn (or should learn!), the law of contracts is loaded with doctrines designed to encourage efficient breach and discourage inefficient performance...

So why didn’t I — a contracts professor who knows that a promisor’s contract duty is always disjunctive: “perform or pay” — breach my initial publication agreements and offer the jilted journal editors some amount of settlement (say, $1,000 for an epic staff party — an amount far less than the incremental value to me of going with the higher-ranked journal)?  Because of a silly social norm frowning upon such conduct as indicative of a flawed character.  When I was looking for a teaching job, I was informed that breaching a publication agreement is a definite no-no and might impair my job prospects.  After I became a professor, I learned that members of my faculty had threatened to vote against the tenure of professors who breached publication agreements.  

A similar quandry was posted on a listserve recently, and I was struck by the varied  responses.  I'll summarize what I recall:

  • Law review submissions are an illegitimate process where 2Ls wield unjustified power over the fates of law professors.  Feel no compunction in withdrawing.
  • It's not a contract.  Pull the piece.
  • How much detrimental reliance has there been?  If it's early in the process, and Law Review A students haven't exerted much effort, then it's ok to withdraw.
  • It's bad form and just plain rude to pull an article.
  • Pull the piece but offer to write something else for Law Review A.

I vividly remember being a law review editor, and this probably colors my visceral reaction: there is no way I would pull the article.  I'm trying to work out why I feel so strongly.  It's certainly not because of "silly social norms": I doubt my faculty would ever learn about it, and in my experience law reviews have zero institutional memory. 

I think it's because I don't buy the "illegitimate system, let's gripe about the law students" view.  Sure, we're the only profession that doesn't have a peer reviewed system.  Sure, it's random and we can all call to mind wildly overplaced pieces.  But we law profs get the benefit of multiple concurrent submissions and closure: for better or worse, we know where our article will find a home in 2-3 months.  In contrast, you can be stuck in revise-and-resubmit limbo for 2 years and still come away with nothing.  The law review boards expend a lot of effort selecting pieces, and they often lose them to higher ranked schools.  It rankles, but that's part of the game.  So is sticking with the choice you've made. 

All of that is in response to the listserve discussion of the bare choice of whether to pull the article.  I don't feel as strongly about Lambert's suggestion, if it's framed as a choice: "Law Review A, would you allow me to withdraw the piece if I paid you $1000?"

But what if Law Review A says no?


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