Academics in other disciplines usally find it surprising that law profs submit their papers concurrently, to many law reviews at a time. Their surprise often turns to jealously when they learn that law profs typically get a two week deadline to accept any publication offer, and that we can use that time to "shop up" our articles to more highly regarded publications. (The U.S. News & World Report's rankings of law schools, moderated by common sense and various personal preferences, usually serves as a proxy for "more highly regarded" in such calculations.) This, we do by contacting those more highly regarded publications and requesting expedited reviews of our articles.
After years of practice, I've become pretty adept at this shopping-up process. I've worked the Misunderestimating Dastar article up from a 95th-ranked school's law review to a 41st-ranked school's, and worked the Treason article up the rankings from 90th to 58th. Both articles, furthermore, are still in play, so I have a chance at still better placements.
Nontheless, I find "shopping up" my articles decidedly tiresome and disturbingly mercenary. Granted, nobody suffers fraud in these transactions; everybody knows the rules, harsh though they may be. Still, I'm interested in exploring better alternatives.
I thus tried something new in some of the emails that I sent out this morning, in which I updated the expedite requests I already have out for my Misunderestimating Dastar article. I said, in relevant part:
I promise to accept any reasonable offer from those few publications--yours included--to whom I am directing this special proposal. By "reasonable" I mean primarily that the paper must see print within the next year and that the copyright terms must not be too onerous. (Throwing in some extra term like "the law review gets your first born son" may also prove a deal-breaker.) The first such law review to reach me by email or phone will win the benefit of my proposal.
With this, I hope to break the seemingly endless cycle of offer, deadline, shopping up, new offer, new deadline, etc. However, if you are more comfortable with that, the customary way of reaching publication agreements, you may see fit to disregard my proposal. It's your call. I mean only to give you a new, and possibly better, approach to landing your preferred articles.
Students of game theory might like to work through the ramifications of this sort of offer. Students of contract law might like to question whether it really does qualify as an offer. Students serving on law reviews might like to ponder whether they would prefer a submission system built on these sorts of proposals, or whether they would prefer to stick with the present system. As for myself, I'd simply like to get offers from top-ranked journals and call it quits for the season!