Law Review Contracts
In Spring 2023, I was lucky enough to have one of my articles accepted for publication in a law review. Of course, the offer was contingent on agreement to terms, but I didn’t give that much thought. Early in my career, I engaged in some negotiating with law reviews about my right to post drafts online prior to publication, but that practice is now so common that the standard contracts allow for pre-publication posting of drafts.
However, this contract had two provisions that I found objectionable. One was a blanket indemnification provision, which required me to pay fees and costs should the university pay a judgment or settlement in connection with any breach of the contract by me. The other essentially rendered the agreement illusory by granting the law review the right to withdraw its offer of publication at any point in the process for any reason. The law review must notify me of its reasons for the withdrawal, but the contract gives me no opportunity to object, so the notice provision is not helpful, beyond its value as evidence in litigation, the cost of which I would have to bear should I lose.
I surveyed colleagues about how to handle this situation. I suspect that most professors just sign these things without much thought, as the likelihood of litigation or liability associated with legal publications is vanishingly slight. Some law professors shared with me that they have just crossed out objectionable language and returned the documents, assuming that the law review editors will not pay much more attention to these matters than we do. Others try to negotiate, and some told me that they had withdrawn their articles upon being told that the law review would not change its contractual terms.
Some colleagues who have served as advisors to law reviews lamented the careless contracts that they found upon assuming the role. They consulted with university counsel and soon contracts more protective of the universities’ interests were drawn up and set in stone. Faculty advisors were told that they contracts could not be changed; they communicated the same message to student editors, and so things remain until institutional memory fades.
I wrote to my student editors requesting that two provisions of the contract be removed or edited. As I feared, they responded that university counsel would not permit any changes in the contract, and they knew this because another author had requested changes, and they had been told that they could not accommodate any changes. I wonder what became of that author’s submission.
At this point it occurred to me that the law review with which I was hoping to publish is housed at a university with a university press. It follows that the university likely already has coverage that addresses precisely the risks for which it was seeking indemnification from me. I spoke to a relative who had a long-time career as an underwriter, and he reckoned that such coverage comes pretty cheap to a university, as a rider or addition to its general commercial liability coverage.
Armed with these surmises, I wrote to my student editors again. It seems to me that the indemnification language in their contract is a solution in search of a problem. I also proposed language that would allow them to terminate the agreement for cause, with notice and opportunity to cure, so as not to render their promise to publish illusory. I asked them to share my concerns with their faculty advisor and university counsel. Otherwise, I was going to have to withdraw my piece reluctantly.
Of course, the students are just caught in the middle. They don’t have any say in the verbiage in their form contract. They liked my article, took the time to read it, discuss it, consider it for publication through their own internal processes. They wanted to publish it. The contract was an obstacle that might make all of the work that they had done thus far a waste of time. Meanwhile, the opportunity to make offers to other authors may have passed.
The whole experience saddens me both as a contracts teacher and from an institutional perspective. As a contracts teacher, I try to persuade my students that, because contracts facilitate mutually beneficial transactions, if they really want to make the world a better place, they should consider transactional work as a possibility. If they do consumer contracts, they can help police one-sided transactions to strive for contractual approaches that allocate risk and reward in a socially responsible manner. But experiences like this one remind me that one-sided contracts can sow distrust and thus prevent mutually beneficial transactions from arising, as I previously noted here. I had hoped to work with this law review, as I have worked with dozens of others, and now that might not happen. The benefits on both sides are largely intangible but not negligible.
From an institutional perspective, I think this problem arises because of a few bad actors – authors who malign others, treat law review editors shabbily, or fail to diligently respond to reminders about deadlines. University counsel might not think that a law review is an enterprise important enough to justify risk of exposure to liability, even if that risk is very slight. If I were to pull my piece, it would have zero impact on the rank or reputation of the law review. The law review would publish something else. University counsel thus has little incentive to change the terms of a contract that it regards as protective of the university’s interests.
But university counsel is focused on risk management, and without forceful advocacy, they will prioritize those business concerns over furtherance of the university’s educational and scholarly mission. Moreover, given the networks of law review editors, faculty advisors and university counsel, all law reviews may soon adopt similar contracts. Untenured professors will then have no choice but to put up with contract terms that are so one-sided that they would raise serious questions of unconscionability but for the likelihood that a court will treat law professors as sophisticated parties. Contracts Profs know that sophistication doesn’t help when an entire industry adopts similar, one-sided terms.
My university’s general counsel teaches at our law school, and she’s a good egg, so I sought her advice on the matter. I expected that she would give me insights as to how this all looks from the university counsel perspective, but she was as appalled by the language in the contract as I was. She offered to call her counterpart at the law review’s institution to see if hearing from a peer might yield some results. She thought there was a reciprocity problem. Universities need professors. Professors need to be able to publish (often through other universities publications) without putting their financial stability at risk. But then she thought about our university’s insurance coverage and suggested that our policy might cover me in the case of a law suit relating to my professional activities. After researching the issue, she concluded that it was not clear that our policy would protect me, and she advised me not to sign the contract.
Even if my university’s insurer could provide a solution for me as to my own exposure, there would still be the other provision, which allows the law review to withdraw its acceptance at any point for any reason. In future submission cycles, I will begin negotiating the contractual terms before I withdraw my piece from consideration elsewhere, and my ability to find a law review with reasonable contractual terms will be an important component of my decision where to publish. But if, as I expect, law review contracts converge on language that leaves authors exposed and unprotected, I may just conclude that the world can live without my scholarship and I can live without the risks associated with publication.
In the end, I was able to get the law review editors to appeal to their university counsel and accept some of the revised language that I offered. It didn’t give me all the protection I wanted, but it gave me enough that I did not lose any more sleep over the issue. 