03 Apr Efficient Breach of An Agreement to Publish?
Last week I accepted an offer to publish my forthcoming article in the Ohio State Law Journal. They expressed great enthusiasm about the article, provided ample time for me to accept, and are reputed to be wonderful to work with by professors in the know. I am delighted to publish with them. Two days later I received another offer to publish the article from a competing journal. Without hesitation I responded that I had already placed the article with another journal. After that offer, I went to Expresso and withdrew my article from all journals that had not yet notified me of their intentions.
This experience raised an interesting issue that is rarely discussed: Is there a point when an author ever engages in an “efficient breach” of an agreement to publish with a law review? I know a colleague who accepted an offer to publish from a mid-tier international law journal, only to decline in anguish an offer from a top-tier law review three weeks later. She just couldn’t bring herself to break her promise. When I raised the issue with a friend at the Opinio Juris reception on Thursday, he said he would never do this, but he knows of professors that readily break agreements to publish if a better offer comes along. The gist of the comment was “These professors reason that there is no institutional memory at these journals, they suffer little harm as they can turn to the next very good article on their list, and this way the market efficiently places the best articles in the best journals and the authors advance in their careers. No harm, no foul.”
I would be most curious what our readers think. Is there ever a time when you would retract your acceptance of an offer to publish? To make it useful, let’s assume in Scenario 1 that you accepted an offer from a journal ranked 75th and then one day later received an offer from a top five law review. In Scenario 2 you accepted an offer from a journal ranked in the top twenty-five and then one day later received an offer from a journal ranked in the top ten. Would you retract your acceptance in either scenario? At the risk of biasing the poll, I will disclose that guided by “the vaguer sanctions of conscience,” I would not retract in either scenario. What is your view? Also, if authors or student editors have anecdotes, feel free to comment (although please don’t name names).
Once I was promised an essay would appear in a journal in a particluar issue. I noted it in my CV and the article never appeared. I e-mailed the journal editor. After close to two months without a response I mailed the piece to another journal, whereupon it was quickly accepted. Eventually the previous editor responded, expressing dismay that I had gone elsewhere, apparently not giving any weight to the fact that I had corresponded seeking an explanation. The editor said he simply moved my article to a future issue. Had I received his explanation in a timely fashion, I would never have sent the piece elsewhere. On a recent occasion, I was told by an editor’s asst. my essay would take up to 11 months for a decision. After about three months I decided this was too long and sent a letter that I was withdrawing my manuscript. The essay was again sent to another journal and quickly accepted. Meanwhile, I heard back from the previous journal that my essay was under review and would I consider not withdrawing it. The intervening length of time had allowed me to send the essay to another journal, have it reviewed and… Read more »
I might have mentioned above that these were not law review journals.
After having accepted a publication of an article, my article was accepted by another journal that is higher ranked. I talked with my Dean and I understood that it would be better if my article was in the higher ranked journal. So, I called the first journal, explained the situation and asked them whether they would release me from my obligation. They were very understanding and released me. In exchange, I promised to write them another essay – which they accepted. This I did do. So it is possible to do this if one is transparent about it -I would think journals would be even more understanding when one is pre-tenure.
Hope this helps.
Best,
Ben
I would not retract in either scenario; I’d rather be (and rather be known as) the person with the article in the so-so review than the person who breaks commitments. The clear assumption of multiple submissions and shopping is that there’s a period for such shenanigans, and that period is supposed to come to a conclusive end when an offer is accepted. Sure, I’d be tempted to think about it differently if the journal to which I committed the article were willing to release me from the obligation, but it’s hard for me to imagine asking — largely because, for me, there’d be something offputting about the dynamic (the author-student relationship already being prone to abuse) and the reasoning seems too broad (placement will always be far more important to the author than to the journal, tenure or not). Admittedly, this reasoning may be idiosyncratic. Anyway, if one were being fully transparent, wouldn’t one tell the second journal that one had already accepted an offer? I’d be very surprised if the second journal reacted by saying, in effect, “Well, go see if you can extricate yourself,” as opposed to, “Congratulations — maybe next time.” Or is that information somehow none… Read more »
Here was an interesting comment I received by email from a former student editor: “This is quite an interesting post, and–as a former submissions editor–I have very strong opinions about it. I am also not sure if your analogy to efficient breach holds. For the first issue, whatever their respect for law reviews in general, professors need to realize that the editors on law reviews work very hard at what they do. Moreover, it is often extremely difficult to secure articles, much less to find another article after waiting a couple of weeks for a reply. This statement is especially true for speciality journals and journals that are not “top tier.” I, for one, worked on a specialty journal at a top tier law school, where we were always stressed out about getting good articles, and had to compromise more than once just to put out an issue on time. From speaking with students at other schools, I got the sense that our situation was not unique. In short, the only journals that could easily absorb the loss caused by rescinding an agreement to publish are those journals that would not face such a problem in the first place. As… Read more »
There may be no institutional memory, but there is personal memory. The students you might jilt will remember who you are. And it’s a small world; who can say it won’t someday matter.
Re: the email Roger posted.
My experience is similar (specialty journal at a top ten school) and we definitely kept a “black list” of authors to look out for for various reasons (not just for rescinding but for plagiarizing, reworking older pieces, etc.). I am not sure that I would not breach in any situation but you do have to do the calculation of whether you intend to ever work with the journal again (if you don’t, it may be no big deal).
And I have found from limited experience that a phone call to the submissions editor or EIC, and a frank discussion about your motivation for withdrawing, can go a long way towards smoothing over any hard feelings.
I completely agree with the e-mail posted above regarding the efficient breach analogy. Absent a commitment by the author to compensate the original journal in some form (money, promising a future article?) there is simply no pareto-optimal scenario at issue.
Thanks. Maybe I should have also said that I told the higher tier journal it was already accepted somewhere else and the higher tier jounral said that I could nevertheless see if the lower tier journal would free me from my obligation. I think an important part of why the lower tier journal releases is whether there has been some work done on the article. I see no reason why an author should not ask whether they can be released – the journal is also free to say yes, no or make some other arrangement. On the other hand, not asking and breaching is of course very bad form. Asking and getting a no and still breaching seems like worse form. Hope this helps.
Best,
Ben