Bankruptcy

Open-Source Law Review Publication Contracts

By Adam Levitin

I know this isn't standard Credit Slips fare and will probably be of little interest to most readers, but it's of reasonable concern to academic readers:  the lack of standardization among law review publication contracts. 

I've encountered only a limited number of publication contracts, but it is already apparent to me that there is major variation among these contracts, some of which are drafted well, and some of which are rank amateur works.  Some are conscience of the need to address author's desire to post works to electronic distribution sites like SSRN and BePress, others are not.  Some transfer the copyright to the law review, others are merely a publication license, exclusive for some period of time (or not).  My sense is that some of the agreements were simply drafted by law students (who have little-to-no experience in contract drafting), while others went through a university's general counsel's office and conform with a university-wide standard. 

Now in 99% of cases, the contents of the law review publication contract don't matter--they will simply never come up, and when issues do arise (I had to deal with this problem this year), the langauge of the contract is irrelevant, as no one is going to sue.  Instead, the issue is all about relative bargaining power between the journal and the author.  Indeed, this raises the question of why a formal written publication agreement is necessary at all; two journals I've dealt with have not had a formal written agreement. 

Still, the law review publication contract strikes me as a case where there should be a standard form contract, maybe with some check-the-box options.  It's hard to imagine that either law reviews or authors want tremendous variation in the contract. 

Maybe some enterprising law professor (not me) will draft such a contract for the good of the profession.  Consider this a call for an open-source standard law-review publication contract.

Full post as published by Credit Slips on June 23, 2009 (boomark / email).