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March 14, 2011

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TJ

Tim,

I think those are separate questions: (1) have you negotiated, and (2) remedies for breach. Law review publication contracts are the ultimate in terms of the irrelevance of contract LAW. A professor always has the ability to pull an article (what are they going to do, sue for specific performance?); the remedy for a law review is self-help by blacklisting the professor in the future. And that remedy can be imposed even if the professor technically complies with the contract. The entire system functions on an honor code of convention and custom. One can set expectations by having an explicit deal, but even there only within the limits of convention and custom. For example, negotiating a first round edit within 3 months means that it will really be four months (instead of otherwise being six months); and on the law professor side, contract terms saying that the professor cannot add more than 10% in length during editing means that the professor will really add 20% in length (instead of adding 50% otherwise).

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