Scholastica Sunt Servanda

Law review publishing is weird. Any system that runs on massive simultaneous submission is bound to be. Everyone who’s published a law review article knows the wistful feeling that comes after you accept an offer of publication and now need to tell the other journals that your article is taken. There is always that sense of what might have been, the temptation to hold off sending the email just a few more minutes. Prestigious Law Journal never got back to me. What if?

Then, if you are a normal person, you put the feeling aside and hit “send,” because you gave your word to the first journal when you accepted their offer, and it is time to move on and get back to prepping for tomorrow’s class. But every so often, someone gets that second email out of the blue, and the temptation to procrastinate turns into a different and much worse one. An offer from the Prestigious Law Review – how could I turn that down?

A few weeks ago, Dave Hoffman at PrawfsBlawg wrote about someone facing that second temptation, and giving 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.

Dave’s post sparked a long and interesting discussion about the complicated ethics of the law review submission process. I found one aspect of the conversation troubling; it has been gnawing at me for a while. Several of the commenters brought contract theory into play, and argued that backing out of a law review publication agreement to take a “better” offer is a case of efficient breach. The gains to the author who runs off with Dustin Hoffman outweigh the losses to the journal left standing at the altar. Other commenters objected that the author doesn’t actually compensate the journal for its loss, as a breaching party in a contract case would be expected to. Orin Kerr playfully suggested that a “liquidated damages condition for withdrawal” might be the answer, because “law review editors get a lot of beer money if the author backs out, which they’re happy to have, and the author can pay the damages and accept the better offer, which the author prefers.”

I find the whole line of analysis problematic, because it misdescribes the relationship between authors and journals. They don’t interact in a market with prices and payments; if they did, the system of selection for scholarly quality would collapse in short order, and with it a large part of law reviews’ reason for being.

Law reviews ration article slots rather than auctioning them; the author-journal matching process doesn’t reflect willingness to pay. But that means there are significant externalities to the publication contract; authors and journals don’t fully internalize the effects on the other parties they deal with. The private costs to an author and a journal dealing with each other will almost always depart significantly from the overall social cost of their actions.

Suppose that Professor Cutpurse has already agreed to publish with the Podunk Law Review when he gets an offer from the Ivy Law Review. If Professor Cutpurse backs out, then Podunk will fill the slot by accepting an article from a second author: Professor Peppercorn. But if Professor Cutpurse doesn’t back out, then Ivy will fill its slot by accepting an article by a third author: Professor Scratchgrab. When you take into account Professors Peppercorn and Scratchgrab’s own offers and decisions, there are ripple effects for still more authors and journals.

Hence we can’t show that what is efficient between the author and the less prestigious journal is efficient taking into account the other affected parties. It might be. It might not. But we have no strong reason to think that it will be. The fact that the author values a placement with the more prestigious journal more than the less prestigious journal values publishing this particular author tells us almost nothing, because this will almost always be the case.

Some numbers will illustrate the point. Suppose that Professor Cutpurse would pay 100 quatloos to publish with the Ivy Law Review, and that the Podunk Law Review would be wiling to let Professor Cutpurse go for 10 quatloos. Obvious gains from trade, right? Not so fast. The problem is that Professor Scratchgrab would also value the Ivy placement more than her own current best offer from