Strangest Law Review Story Ever

Law review submission season is upon us, and accordingly, I have a bit of advice to law review editors: If you wish to make an offer of publication to an author, inform him or her of the fact. This makes things less awkward. Trust me, I speak from experience.

Last year I submitted a manuscript to a number of journals, but not getting the sort of interest I had hoped for, ultimately decided to revise it and see if I could get it placed in a more speciality, peer-reviewed journal. Fast forward several months, and I get a very odd email from the editors of one journal. The email contained the edited and subcited version of my manuscript. Students had clearly been busily at work on the piece. The odd thing, however, was that this was my first contact from the journal. I had no idea that they were even considering the manuscript, let alone that they wanted to publish it and were already well into the editing process. I had certainly never received an offer of publication, let alone accepted it. Some of my colleagues, with whom I discussed the situation, initially suggested that perhaps this was a new strategy on the part of law journals. Constructive acceptance they called it. Others wondered if perhaps the editors were setting themselves up for an unjust enrichment claim if I refused to publish with them. (I am pretty sure that I would be protected by the officious intermeddler doctrine.) Eventually, I got the situation hashed out with the current editor-in-chief of the journal. It seems that the previous editorial board had decided they wanted the manuscript, and had informed the incoming board that it had been accepted. They failed, however, to tell the new board that the author (me) had not actually been contacted with an offer. The new board set diligently to work, and then sent me the results of their labor. Alas, at this point my plans for this manuscript have moved on, and I refused the journal’s offer of publication (which is how I chose to construe the edited version of the manuscript that they sent me).

So, incoming boards, make sure that there aren’t any loose ends left dangling by your predecessors, and make sure that you always inform authors of your intent to publish before you start editing.

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10 Responses

  1. Bruce Boyden says:

    Wow, what a great contracts hypothetical — with just a little tinkering with the facts you can get a lot of mileage out of this one. Promissory estoppel, advertisements and offers, acceptance by performance, acceptance by silence, consideration — it’s all in there. I was constantly selling my car in class, but that was a good which was an awkward fit with the Restatement.

  2. TJ says:

    Agreed, change the hypothetical to a journal with an exclusive submission policy, and there will be even more issues to discuss.

  3. Eric Goldman says:

    At least you got an offer on your article! Eric.

  4. Dr. Weevil says:

    It’s a whole different field, but I once had an article on Greek tragedy forthcoming in two different journals simultaneously. I thought it had been rejected by the first one I sent it to, since the editor wrote something (in Italian) along the lines of “I would not recommend publishing this article”. I naturally assumed was a rejection, and submitted it to a second journal, but he sent it on to his staff to be typeset. It was quite embarrassing when I received the proofs to correct and had to tell him to cancel it, because it had since been accepted by the second journal.

  5. Matt Lister says:

    I had a somewhat similar experience with the very first philosophy conference I submitted a paper to- the Mid-South Philosophy Conference which takes place in Memphis every year. It’s a fun conference that gave me a chance as a completely unknown grad student, so I don’t hold anything against them. But, since I was a first-year grad student at the time it was somewhat traumatic. I submitted my paper but heard nothing from them so assumed it had been rejected. About a week before the conference I got comments from the person who had been assigned to respond to my paper and a message saying he was looking forward to our session. That was the first I’d head about it at all. I decided to go ahead and go even though the conference hotel was by this time sold out. Later I was told that people were annoyed that I didn’t show up to comment on someone else’s paper that I had been, apparently, assigned to. I’d not volunteered to do that, and even if I’d found out about it I couldn’t have done it since I’d never been sent the paper. It was quite a screw-up, but the conference in general was still fun and I went again the next year, and now whenever there is a screw-up at some conference I’m in I can just think, “well, at least it’s not as bad as the Mid-South all those years ago.”

  6. anon says:

    For someone who’s rocking a solid three publications outside of his law review note, I’m curious why you’d be so quick to turn down an offer, especially on one that had been rejected by everyone else to whom you’d sent it.

  7. Nate Oman says:

    anon: Delusions of grandeur, of course…

  8. marty lederman says:

    You can make the contracts hypo even more interesting by adding a dollop of IP: Did you incorporate some of their substantive edits? Could you?

  9. anon says:

    🙂 Good luck with the revised manuscript.

  10. Steve Lubet says:

    Back in the days of snail mail, I once wrote to a journal to withdraw a piece after I’d accepted another offer. In reply, I got a very snotty letter telling me they had no record of ever receiving my article in the first place. Of course, I had their acknowledgement letter in hand, which I copied and sent back. Then I took that journal off of my submission list for the rest of the year.