“We therefore commit, effective immediately, to give every author at least seven days to decide whether to accept any offer for publication”

Josh Wright —  19 April 2011

There is lots of talk about the various implications of the agreement between the various law reviews to cease and desist with the practice of exploding offers.   One interesting aspect of the commitment is that it is fairly transparent that the law reviews viewed exploding offers as a method of competing with one another, and the agreement seeks to replace that rivalry with cooperation.  The letter, for example,  describes the motivation for exploding offers as an attempt to “secure the best articles for our own journal,” which instead led to a “race to the bottom.”   It was not too long ago that Thom posted about the antitrust risks associated with collective action aimed at pulling out of the US News rankings.   As a practical matter, I don’t view this commitment as amounting to much, nor do I have a problem with exploding offers as a competitive strategy.  But in the spirit of final exam season: does the agreement articulated in the Joint Letter violate Section 1 of the Sherman Act?  Discuss.

6 responses to “We therefore commit, effective immediately, to give every author at least seven days to decide whether to accept any offer for publication”

  1. 

    Agree that rule-of-reason applies, because there is no naked restraint on price/output. And looks like a restraint ancillary to a procompetitive purpose: improving quality of legal writing. As for market power, impossible to prove without NYU being on the list. (Class of ’01)

  2. 

    Is this letter terribly different from “industry self regulation” types of agreements?

    • 

      Antitrustguy, read your cases. It depends on the self-regulation. A National Macaroni association set a product standard (percentages of durum and semolina) that was held illegal. The Indiana Federation of Dentists also crossed the line. The DC Superior Court Trial Lawyers Association held a one-day strike that Judge D. Ginsburg liked but the Supreme Court didn’t.

  3. 

    1. On first read, it seems to have a much stronger efficiency rationale than the Ivy League colleges had for agreeing to financial aid.

    2. Market power would not be trivial to show, if this were a rule of reason case. Dennis Carlton testified that the Ivy League colleges lacked market power.

    3. And, what exactly is the antitrust injury?

    4. The more interesting (currently hypothetical)question may be the following: Suppose that Josh Wright writes that this is a per se violation of Section 1 and subsequently discovers that none of these journals accept any of his articles. Will he be able to prove concerted action? Will he require Behavioral Economics to make his case?

    • 

      Wouldn’t making the accusation be a good strategy for getting articles accepted?