David Gray on “Publishing Ethics”

dgrayToday, I would like to share a post by my colleague and former guest blogger David Gray on publishing ethics.  Here is his post:

My thanks to Danielle for granting me this one-time-post-guest spot to pose a few questions to the Co-Op community about law review submission practices. What follows is from me, and should in no way be attributed to Danielle.

I am at best a neophyte, so apologize straight away if this is ground that has been covered elsewhere, but I have been thinking a lot lately about normative issues germane to the process for placing articles in law reviews. I have seen and read with great interest a number of blogs, websites, and SSRN postings relating to practical and strategic considerations, but have yet to see a sustained discussion of what, if any, rules of conduct or decorum we ought to respect along the way. After the jump I stumble through some of my sketchy thoughts and solicit views, advice, and anecdotes from authors, law review editors, and others in a much better position than I am in to inform this discussion.

My sense is that this is touchy territory, so let me begin with this caveat: the purpose here is to provoke discussion and solicit information and views from others.  I have glommed together some practices of my own, but they are evolving and I have neither a meta- nor applied-theory of what might be called “placement ethics.”  So, assume that anything that sounds preachy is a transmission error.  With that caveat in place . . .

I am a fan of the law review submission process.  With just a brief taste of peer-review, it is hard to overstate the value of having a diversity of law reviews, little if any personal politics in the process, and the time-compression and information return provided by multiple-submission. 

It is not at all uncommon for peer-reviewed journals in the humanities and social sciences to take six months or more to reach a decision.  Because submission is exclusive, authors cannot use the abstract threat of a competitive market or the more direct threat of a competing offer to speed up that process.  As a consequence, work worthy of publication on any inter-subjective standard may languish for years before it finally hits the press.  Multiple submission changes that dynamic.  We all know how it goes.  Freed from exclusive submission, authors submit manuscripts to scores of law reviews, wait for someone to make an offer, and, then ask the offering journal for ten days or two weeks to respond.  In the meantime, the author “expedites” by using that offer to prod other journals to come to a decision.  If another journal makes an offer, the author repeats the process, hoping to deal the draft up to an offer from YLJ or HLR.    In the meantime, the law review editors who made the initial offer are left to bite their nails, hoping that their offer will be accepted, and living in fear that they will not be able to fill their volumes.    

The mind boggles at the strategic possibilities with just these few points in place.  Moreover, we—authors and editors alike—are a competitive bunch, so there is a real temptation to approach the process with self-interest as the only guide and short-term self-interest the main distraction.  Consider the following scenarios as potential points of departure for discussion:

1.  An author has worked very hard on her latest article and is firmly convinced that it should place in a top-ten law review.  She has more than her own confidence to back this view.  She has circulated drafts to trusted colleagues on and off her faculty, presented at several conferences, and everyone agrees this is hot stuff.  Nevertheless, she knows how the law review game is played and suspects that her chances of getting a top-ten placement depend on expediting from a lower-ranked journal.  In fact, she has heard that, with the exception of submissions from a few high-profile authors, many of her target journals do not review submissions in the first instance, but wait for expedites from journals whose tastes they generally respect.  So, our author submits to fifty law reviews with no intention of publishing in any but one of the fifteen or so journals in the top ten.  For her, the remaining thirty-five journals on her list are there for expediting purposes only.  If she does not get a top-ten offer, she will withdraw the article and resubmit in the next season.

2.  An author submits to fifty law reviews and gets an offer with a one-week window from the journal he reckons as number forty.  He then expedites at journals 50-41 and journals 39-30 in the hope that he will get another offer which he can use to expedite again, to pry more time from the first journal, or both. 

3.  An author submits to fifty law reviews and gets an offer with a one-week window from the journal she reckons as number forty.  The author knows that one week is not enough time for many journals to complete an expedited review, so immediately demands that the offering journal give her two weeks rather than one week.  Out of an interest in maintaining good relations, and because it is early in the season, the EIC accedes.

4.  Same as #3, but instead of immediately demanding time, the author waits for six days.  Despite hearing nothing from other reviews, the author calls the offering journal and asks for more time.

5.  An ambitious author with an article he believes in submits to fifty law reviews.  He is prepared to take the best offer he gets, but hopes for something in the top-ten.  The article does well, and the author gets an initial offer, which he uses to expedite.  During the expedite period, the author gets three more offers.  The author continues to expedite, keeping all offers open.  The author eventually amasses and holds five offers. 

6.  After a long season of expediting and negotiation, an author accepts an offer from a journal he reckons is number thirty.  He is satisfied, but not overly pleased.  Two weeks after accepting the offer, the journal he ranks as number two gives him a call.  It seems that the board just lost an article to another journal and would like to offer the author a spot.  The author is momentarily torn, but accepts and sends his belated regrets to journal thirty. 

7.  Tired of losing articles to the expediting process, a law review that most folks would rank somewhere between thirty-five and fifty decides that it will no longer give long windows or extensions.  Instead, board members decide to streamline their review process in order to get ahead of other law reviews.  They find an article they are excited about, as are their faculty advisors.  The editors know, because their faculty advisors told them it was so, that getting this article would be a coup because the article is bound for a top-five journal.  The journal makes an offer days after receiving the article and, in the hope of forcing the author’s hand before other journals can join the show, gives the author four hours to accept.

8.  Suffering under the bi-annual deluge of articles, a board makes the decision not to do an initial review of most articles.  The journal editors are diligent when they review an article, regularly dedicating 5-10 personnel hours to articles they decline quickly and well north of fifty hours to articles they take all the way through the process.  Over the past several seasons, this has meant that thousands of hours were “wasted,” both on articles that are rejected and on articles where offers were made but declined.  Rather than continue along this road, the board decides that it will read only articles from those on an internally held list of significant authors, from young faculty at top schools who have the right credentials, from those who recently placed an article at a top-ten journal, and articles on expedite from “feeder” journals.  

9.  Faced with the same frustrations as our journal in #8, a law review inaugurates an exclusive submission processes wherein the journal promises to reach a decision in one week in return for an exclusive right to publish.  In a variation on this theme, another journal forms a small coalition with a few others, allowing authors to submit to the coalition, again with the offer of quick review in exchange for an exclusive right of publication to the first coalition member to make an offer. 

10.  Tired of being asked for and granting extensions, a journal initiates a practice of informing authors if their articles are going to final board review several days before the meeting and vote is scheduled.  Along with that notice, the journal informs the author that any offer of publication will be subject to a short, immovable window for acceptance.  The journal knows that the author will use this information to expedite at other journals, but decides that it prefers to limit its exposure post-offer.

11.  An EIC makes an offer subject to a fairly short window for acceptance, but agrees with the author that the board will grant reasonable extensions if requests are specific and grounded.  The author then expedites.  An articles editor at another journal reads the article in response to the expedite, likes it, and wants to put it to her board and faculty advisors.  Unfortunately, she cannot complete the process within the current window.  She contacts the author, apprises him of the situation, and asks for a three-day extension.  The author approaches the offering EIC, explains the circumstances, and receives the extension.   

12.  A board sits down with professors whose judgment they trust to hash out a set of negotiation strategies to guide their interactions with authors.  The round table agrees that the journal will no longer grant extensions absent some consideration.  Among the possibilities they endorse are: a) asking the author withdraw the article from journals ranked below or within ten-spots above the offering journal, b) soliciting a promise from the author that she will make a timely decision on any competing offers, or, c) if the extension is granted to give a specific journal the time it needs to go to board review, asking the author not to use the extension to issue a new, general expedite request. 

Whether any or all of these practices are respectable, I will leave for public discussion.  My preliminary view is that some are perfectly okay, some perfectly not, and others subject to taste or slight modification.  I hope, however, that I have presented them in sufficiently sympathetic terms so that the interests at stake are clear. 

Authors want their work to be read and cited.  Placement in a highly-ranked journal can advance those goals in at least two ways.  First, most faculties have journal displays in their lounges.  Getting an article in one of the journals featured on most of those displays can get your work noticed.  Second, placement at a top journal is often used as a proxy for quality and contribution.  There are also secondary advantages to placing an article in a top journal: it feels good; colleagues often say nice things to you; and, at some schools, deans pay bonuses. 

Boards want to fill their volumes and to maintain or advance the reputations of their publications by getting the articles most likely to drive conversations or to be read and widely cited.   

All of these are respectable goals.  The questions I want to raise relate to where those goals should lead us in our conduct during the submission and review process and what, if any, normative considerations ought to temper our conduct.  I don’t have any ready answers, so will leave it here for now.  I look forward to the discussion and with particular anticipation to reading comments from current and recent law review editors.  If you want to yell at me in private, please feel free to do so at dgray@law.umaryland.edu.

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10 Responses

  1. Anonymous says:

    As an editor, the board and I are by now familiar with “the game.” We have accepted that authors will view our offer as both a safety net and a ladder. It is difficult to watch a piece that you wanted for your volume fall into the lap of another journal, which has happened whether we allowed for an extension or maintained a firm deadline. The disappointment of losing an author does fade with the relief of an acceptance, however.

    While some authors have been frank with us, some have subjected us to situation five and other such scenarios. As the submission season continues, I can only hope that authors remain honest with editorial boards instead of stringing them along. Accepting the initial offer would be even better, of course!

  2. Orin Kerr says:

    I think there are three basic ethical guidelines in this process:

    1) First, each side has an obligation to stick to what it has promised. Once an offer is made, authors must stick to the terms of the offer; once an offer is accepted, authors must stick to the acceptance.

    2) Second, each side is free to decide what it will promise. Editors are free to structure the terms of the offer however they want; authors are free to hold offers so long as the offer is still open. (There are common courtesies that are preferable in both situations, but it isn’t unethical to be discourteous.)

    3) Third, each side has an obligation of good faith to the other. Authors should not submit to a journal unless they would plan in good faith to accept the offer if it is the “best” offer they receive; journals should plan in good faith to review the submitted articles whether or not there is an expedite.

    That’s my view, at least.

  3. Steve Lubet says:

    It is hard to draw a definitive line between courtesy and ethics in an area that is not otherwise subject to regulation, but I would say that holding multiple offers (for more than a short while) is unethical in the informal or lower-case sense.

  4. David Gray says:

    My thanks to anonymous, Orin, and Steve. I have been chatting with colleagues and law review editors at several schools about these matters over the last few weeks, so will draw on those conversations to press a couple of points, using Orin’s numbered list:

    1. I am happy to hear views to the contrary, but do not see much to argue with on the point that both authors and editors must respect their promises. I have heard horror stories along the lines of scenario #6 from the post, but hope that these are rare bordering on urban myths.

    2.A. I also agree that boards are probably free to structure their offers as they like. The only hesitation I have comes from ambivalence about how to understand the enterprise, which Steve may share. Is this a free market populated by fairly equal players, each of whom is at liberty to pursue her own goals using whatever strategies she chooses? Is it a matching game with an external measure for success of the enterprise that regulates player conduct? Is it a community process populated by law professors and law students, captured within the broader programs of legal scholarship and education? It seems to me that the answer to this question might have consequences for the range of acceptable conduct by boards and authors, including terms set on offers. That written, scenarios 11 and 12 draw on recent experience and raised no concerns for me—to the contrary, I was impressed with the board officers involved.

    2.B. As to the proposition that authors are free to hold an offer as long as it is open, I wonder what Orin or others have to say about scenarios such as #5 from the post. There is certainly a credible case for Steve’s view. Open offers limit the ability of boards to pursue other articles. Amassing and holding offers therefore may have deleterious effects on boards’ abilities to fill their volumes with the “best” articles they can get or, in some cases, to fill their volumes at all. Amassing and holding offers also affects other authors, some of whom might have articles just perfect for journals tied down by open offers. Do these effects on others raise the stakes sufficiently to invoke something more than good manners to recommend Steve’s view?

    3.A. The obligation to good faith also strikes me as entirely credible. Here, however, I would love to hear views on scenario #1. In particular, it would be interesting to know the extent to which the practical limitations on boards consequent of getting 2,000+ submissions a year leads them to adopt some or all of the practices described in scenario #8. Of course, even if the imprimatur of the expedite does provide some advantage, that does not mean that author #1 is in the clear.

    3.B. I’d also like to float a small variation on #1. As a colleague pointed out to me, authors often just do not know how “high” an article can go. So, imagine an author who submits to fifty journals with the intention of accepting the “best” offer he gets. Now imagine that during the process the author gets heavy interest from some of his most desired journals, but ultimately gets only one offer from a journal lower on his rankings. With that new information, the author decides to decline the offer in order to rewrite and resubmit in a later cycle. Good faith?

  5. Bill Reynolds says:

    Fred Rodell is finally right–“Goodbye to Law Reviews.” Law reviews serve no purpose in a digital world except to feed egos. We should use our own colleagues and students to do editing and we should stop relying on evaluations by second year students. Might also save a few forests.

  6. Orin Kerr says:

    David writes:

    Open offers limit the ability of boards to pursue other articles. Amassing and holding offers therefore may have deleterious effects on boards’ abilities to fill their volumes with the “best” articles they can get or, in some cases, to fill their volumes at all. Amassing and holding offers also affects other authors, some of whom might have articles just perfect for journals tied down by open offers.

    I wonder if this is best addressed by reminding authors of this cost when journals extend offers: They can give authors X time but emphasize that if the author knows sooner than that what her decision will be, it will greatly assist them if the author would let them know ASAP. That is, journals can make sure authors understand their situation. I suspect most authors would feel a social pressure (or, if you prefer, “guilt”) that would make them less likely to sit on multiple offers. Of course, some will still sit, but I suspect fewer would.

  7. Orin Kerr says:

    Bill Reynolds writes: “Fred Rodell is finally right–Goodbye to Law Reviews. Law reviews serve no purpose in a digital world except to feed egos.”

    When I talk to students, they generally want more law reviews rather than fewer: They want journals to work on as a credential and to hone their editing and research skills. So long as that function lives, I doubt law reviews are going anywhere.

  8. Bill Reynolds says:

    Orin. My students can hone their editing skills editing my articles (and David’s, for that matter). They do not need organized law reviews. They are obsolete.

  9. Ray Campbell says:

    What would be fun would be if the article in scenario six was addressing some aspect of efficient breach theory.

  10. Anonymous says:

    The tone of Professor Reynolds’s comments demonstrate the imbalance at play here, by framing the question as one of product rather than process. If the law review was eliminated as an educational tool, the opportunity to develop those skills would become available to significantly fewer students. I doubt that Professor Reynolds’s institution would be eager to employ the number of research assistants (even at University rates) as who currently comb carefully through each published piece for academic credit (or less). The result would be shoddier scholarship and fewer academic opportunities. To the degree that online scholarship (like this website) changes the landscape, that calls for a modification, not elimination. I can’t imagine that it would carry the same gravity if next summer an exhausted rising 2L had to explain to his parents that he was “petitioning for Blog.”