Scholars Should Publicize Law Reviews’ Exploding Offer Policies

During 2010, while I had the privilege of serving as chair of the Harvard Law Review’s articles committee, I often commiserated with frustrated scholars who were handed a short-fused exploding offer mere days after submitting to every journal. I very much hope that journals will take it upon themselves to end this practice. But I also think that authors could significantly weaken exploding offers if they were better informed about each journal’s practices and acted accordingly.

If authors knew both (1) how quickly each journal reaches a decision and (2) each journal’s exploding offer policy, then authors could submit to slow, non-exploding-offer journals a week or two before they submit to the journals that are faster or that make short-fused exploding offers. Savvy scholars already do something roughly similar by submitting only to Harvard and Yale at first, then after ten to fourteen days submitting to the next-highest-ranked handful of law reviews, etc. When professors asked me for advice on submission strategies, though, I suggested also submitting earlier to schools without exploding offers (e.g., Stanford) and postponing submissions to very quick, short-fused journals until later in the process (e.g., Columbia and NYU).

Most scholars don’t know the policies and practices of the various journals. But professors could easily share such information on sites like PrawfsBlawg or The Faculty Lounge [update: or Copyright Experiences]. This information would allow each author to submit strategically and weaken the impact of exploding offers specifically on him or her. Moreover, it might shame journals both into taking more than a couple of days to review submissions and into giving authors a reasonable amount of time to decide whether to accept an offer — especially because strategic authors will negate much of the benefit these journals purportedly get from their exploding offers. Even if scholars don’t publicize journals’ exploding offer policies, the journals that signed the recent letter regarding exploding offers have pledged to keep offers open for a week — and one can assume journals that refused to sign the letter continue to employ aggressive exploding offers. Authors should take that valuable information into account.

Of course, professors need to calibrate their submission strategies based on how time-sensitive publication is (which might matter for certain subjects or for tenure review), what their roughly estimated placement for the piece is, how important a good placement is, etc. For example, someone who finishes an article in July that she expects will place in a 20th or 30th ranked journal should submit to Harvard, Yale, Stanford, and Chicago in July, then to top-20 journals without exploding offers and top-10 journals with exploding offers, etc. An author who finishes an article in late August and desperately needs it to be accepted for publication that year might rather submit everywhere at once. And some authors (perhaps the most sensible and/or tenured ones) simply don’t care much where their articles get published and would find multiple rounds of submission more trouble than it’s worth.

More radically, I also think that authors should feel freer to use their leverage. When a journal makes a short-fused offer, the author should feel free to disregard it by saying that she will give other law reviews a reasonable amount of time to reach a decision (say, seven or ten days, depending on how long ago it was submitted), and if necessary, she should let the journal withdraw its offer at the end of the 24-hour period (or one-hour period, in some cases). I have a hard time imagining that the journal will refuse to publish the author’s article if she comes back to the journal a week later when no one else made an offer. That journal undertook and completed its review process and decided the article was worthy of publication. The journal probably won’t stand up for its “principle” because there is no legitimate, scholarly reason for short exploding offers. Nor is there a reputational advantage for the journal to adhere to its bright-line rule because journals with short-fused exploding offer policies want those policies to be secret — otherwise authors will think less of them and will submit to them last. Unless the exploding offer was a complete fluke, at worst the author would have to wait until the next submission cycle and then get re-accepted at that journal or somewhere comparable.

Note: These views are mine alone and do not necessarily reflect the views of the Harvard Law Review.