The Laboratorium (3d ser.)

A blog by James Grimmelmann

Soyez réglé dans votre vie et ordinaire afin
d'être violent et original dans vos oeuvres.

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 the Generic Law Review. If I had to guess how much Professor Scratchgrab valued an offer from the Ivy Law Review, my mean would be 100 quatloos.1

Those 100 quatloos of utility for Professor Cutpurse don’t come out of nowhere. The value of an Ivy slot is being allocated to one professor or another, one way or another. Statistically, Cutpurse’s decision to cut and run will tend to be efficiency-improving only if there is some reason why Cutpurse’s situation is special, why Cutpurse really would value the placement more than Scratchgrab, who is next in line at Ivy. But there is no way to know that up front because, the way this market works, neither Cutpurse nor Podunk has any idea who Scratchgrab is. The system does not work in a way that elicits all of the willingness-to-pay information Cutpurse would need to make a good efficient breach argument at the time of breach.

The law review placement process doesn’t ignore price signals because of some kind of regulatory failure. It systematically suppresses them because the process is supposed to reflect something else: scholarly quality. Authors want “prestigious” law review placements because placement is a proxy for the quality of the author’s work rather than the size of the author’s bank account. Put money in the picture and the result is not that authors bid up the price of a slot in the Ivy Law Review but that publication becomes close to worthless for all authors.

There is also a deeper moral concern at work. Law reviews are able to ignore money in making publication offers because they are heavily subsidized with student time and law school dollars, both of which come ultimately from the pockets of law students and taxpayers. The only way in which that subsidy could be anything other than gravely immoral is if publishing scholarship yields social benefits and not just private benefits to Cutpurse.

So the efficient-breach claim (and with it the claim that this should be a matter for negotiation and side payments between Cutpurse and Podunk) is self-defeating. If we looked at law review placement only by asking what authors and law reviews want individually, the entire system would collapse, and would deserve to.

The law review system is broken. But it is not so broken that I would like to tear the whole thing down. And certainly not in this way.

And my best estimate of how much Ivy values publishing Cutpurse than Scratchgrab is 10 quatloos – the same amount Podunk values Cutpurse over Peppercorn. ↩︎