As a former editor-in-chief of a law review and a faculty advisor to several publication boards, I wanted to raise some ethical issues in law review submission.
Should authors submit an article to journals that they would not publish in?
I have had many debates with faculty colleagues around the country about this question. I think the correct answer is no, but we know that it happens. During my last article placement, several journals called me or e-mailed me to ask, "would you accept publication if we were to offer it to you?" I asked, is this a request for an immediate acceptance of an offer of publication if one is forthcoming? They said no; it was just a call to see if after the agreed upon bid up period no other acceptance is forthcoming, whether I would commit to publication. Of course, my answer was yes. There can be reasons why an author may not wish to commit to a publication relating to the conditions of the acceptance. Student demands as to length, placement in later issues, or request for comment on the article could all be reasons for rejecting the offer of publication. But using a lower ranked journal just to bid up an article without the author's good faith consideration of the offer of publication from the lower ranked journal is plain wrong in my opinion.
The Bidding Up Game
We could debate the merits of the bidding up process, but at a minimum, it should be played fairly. First, law reviews should demand a full name of the journal that has accepted the article and a contact at that journal. If the review decides to accept the article, the prior accepting journal should be contacted to verify the acceptance. I have heard a few stories where an author has called other journals saying, I have an acceptance at "School." The acceptance is not at School Law Review, but a second, third, or fourth specialty journal at School. Of course, I am not intending to disparage those journals, but I am criticizing an author who intentionally creates confusion regarding the journal acceptance in order to increase his/her chances of successfully bidding up the article acceptance. I have also heard of authors asking for expedited review without any acceptance whatsover by using other law review inquiries about the status of the article to create a misleading impression that those inquiries were offers of publication. A law review notice -- that bid up requests will require verification if the article is accepted -- should end misleading and false claims of acceptances.
NOTE: If journal editors discover fraudulent behavior, they should consult with their faculty advisor and dean to determine the proper course of conduct. I know of several cases in which the review notified the dean of the author's law school regarding the unprofessional conduct.
Second, I am a fan of negotiated one to two week firm bid up periods. Often, the entire time is not needed. I think that law review editors would alleviate much stress and delay if they communicate rejections in a timely fashion. With e-mail, it is so easy to send, on a timely basis, a note that the journal has decided not to accept the author's piece. Similarly, authors who receive a more desirable acceptance should notify other journals prior to the end of the bid up period to permit journals to review and make publication offers to other articles.