David Gray on “Publishing Ethics”

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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.”