When the review just isn’t expedited enough
posted by Kaimipono D. Wenger
Via a reader comes this query (with details murkified for obvious reasons):
Let us say that Levinson receives an offer from the Basic Law Review (BLR), set to publish in spring 05. BLR tells Levinson that they expect their issue to go out in March 2005. Levinson turns down competing offers to accept the offer from Basic L. Rev.
Levinson waits for the follow-up. And waits. And waits. By late February, Levinson still hasn’t heard any follow-up. An e-mail draws no response. Levinson pokes around on the BLR website. It seems to indicate that they still have not published the first issue for their 2004-05 volume.
Levinson sends another e-mail to BLR, asking when they expect to publish the spring 05 issue. BLR article editor at last responds, indicates that in fact they are at least several issues behind, and that they can’t give any estimate for when the spring 2005 issue will be published. It might be a full year late; perhaps more.
Would Levinson be justified at this point if she chose to withdraw her article entirely and re-submit it elsewhere? Should she approach the journals that had previously made her an offer on the piece? If she did so, would she be subject to blackballing, as a contract-breaking author?
Or does the article at some point become “available” once again due to the journal’s foot-dragging?
I’ll stop at this point to mention explicitly that I’ve never had to deal with this problem myself. My own experiences with American and Wisconsin were both great, and USF has already sent me a follow-up. Levinson is not me. Levinson does, however, exist.
My sense is that at some point, a journal may lose its exclusive publishing rights by failure to meet its own obligations to publish reasonably quickly.
After all, if Levinson does have the ability to escape at some point due to unreasonable delay, then she will suffer real harm. This may be exacerbated depending on her circumstances. She may be a junior professor up for tenure, or a new entrant on the market. Or perhaps the piece is a crucial step in her research agenda, setting out a theoretical framework on which her future articles will rest, and she cannot continue the arc as this piece remains unpublished. Given the possibility of real harm to her, I think that there has to be an ability to escape the contract due to delay.
On the other hand, such a right should not be overly broad. Authors should not have a unilateral right to back out of their contracts at the first hint of lateness. Many journals are a few weeks or a few months late. Being part of a January book that comes out in March never killed anyone. Too strong of a withdrawal right would allow authors to unfairly game journals, and back out of commitments, using delay as a pretext, in order to further play the placement game.
So where, exactly, is the dividing line between acceptably and unacceptably late? I’m not entirely sure, but my instinct is to call it a one-year bright-line rule: If the journal is unable to put a published article into an author’s hands by one year after the date of acceptance, the author should be able to look elsewhere.
This line would be subject to reasonableness, of course. There’s nothing magical about the one-year mark. If the piece is in final proofs at the 1-year mark, there is no strong reason to let the author pull it; it will be in print soon anyway.
The real bite of a one-year rule would come into play a few months before the deadline. Around the 8 month mark, if no progress has been made, it becomes clear that the book will not be published by the one-year deadline unless the journal begins work on it right then, and works on it nonstop until publication. Thus, at that point — if the work on the article has not yet begun — the author should be able to demand confirmation and evidence that the article is indeed moving forward. And if it is not, she should be able to withdraw.
Anyway, that’s just my own instinct. I’m sure that someone disagrees with me. Am I being too harsh on the journals? Too easy on them? Feel free to let me know in the comments; perhaps we’ll figure out the community consensus (if there is one) on this topic.
(UPDATE: P.S. If you’re reading this and you’re an Articles Editor at a top-25 journal, please be aware that this post is in no way an indication that I would ever back out of a commitment with your journal. This discussion is purely theoretical. So feel free to make me wait longer than a year — after you accept my article, that is — and I promise, I won’t even try to back out!)
November 4, 2005 at 5:21 pm
Posted in: Law School
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Responses (2)
Mike - November 4, 2005 at 7:15 pm
I assume you’d add timeliness-of-the-topic to your analysis. Something tells me year-late articles touching Gonzales v. Raich might as well have not been written. The same thing could apply to a topic like reparations, or “hot” issue like the countours of Crawford v. Washington. Let’s say someone credible is about to file a reparations suit. Wouldn’t it be nice to have something published close to that date? Wouldn’t it be nice to have an article touching excited utterances before the Court hands down the case. (Hey, maybe you’ll get a cite!)
Anyhow, this whole thing stinks like the two-week’s-notice rule. When an at-will employee is terminated, it’s usually effective immediately. But if he doesn’t give two week’s notice, he will be viewed as some kind of bum. Is there any law journal that would allow an author to submit his articles one year late? It seems outrageous (to this outsider, at least) to be one-year late in publishing someone’s work.
Matt - November 7, 2005 at 1:48 pm
As a corporate practitioner and occasional law-review submitter, I would have thought the answer is obvious: negotiate your contract! Presumably the journal sends you a contract spelling out your and its obligations; I’ve negotiated terms in one of mine, and “Levinson’s” story should inspire others to demand a timeliness term, at least from off-Broadway journals.
As far as I know, at-will employees customarily get two weeks notice as well. The firing is effective immediately, but they get two weeks salary in compensation — which is much better than having to come in to work for two weeks after being fired.
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