Thursday, April 05, 2007

The Perils of Publishing in Online Law Reviews

APRIL 13 UPDATE: See follow-up post here.

(Alternate title: Why Author Agreements are Important)

Yesterday afternoon I discovered that the Yale Law Journal's Pocket Part altered an essay I published last year to include a link that refers readers to a webpage that contains false and misleading information about my former employer and me personally. This was done without my consent, and without even contacting me before a decision was made to get my input. I have been told that the Pocket Part did this due to pressure from certain individuals within the Yale Law School community who were upset about perceived inaction by my former business partner on issues that I had absolutely no control or authority over. My essay, which was about the impact blogs have on student scholarship, had absolutely nothing to do with this recent controversy except that it mentioned the position I held at the time in my author byline at the very end of the essay.

I have blogged about online supplements before (see here and here), as has at least one of my co-bloggers (see here). Though many have written about the drawbacks of law journals that are published exclusively online (such as the potential that the site hosting the law journal may one day simply disappear), I do not recall anyone seriously raising the possibility that a law journal may alter an article or the webpage hosting the article out of an animus against the author after publication--likely because no one would consider that a serious academic publication would actually engage in such behavior. Unfortunately, now that it has happened once, I expect it to happen again.

But it won't happen to me. I believe the arguments I make in my papers are important, and I want those papers to be read by the widest audience possible. However, as an author I simply cannot take the risk of publishing in an online journal when there is a very real possibility that some future board will alter my article itself or the webpage containing the article long after publication. Neither I nor any other author should be put in a position where we have to worry that one day we will not be able to refer people to a paper published in an online journal because the page now links to a page whose only purpose is to engage in character assassination and to damage one's professional reputation.

Based on this experience, from now on I will insist that my author agreement contains provisions that explicitly forbid my article or the webpage containing the article from being edited in any way without permission after publication. If an online journal refuses to include such a provision, I will not publish there. Since one never knows when one might end up on the wrong side of the news cycle (or just the wrong side of an Editor-in-Chief), I would encourage other authors considering online journals to take the same protective measures, if only for peace of mind.

I really wish this wasn't necessary since I know from firsthand experience that there are many great online journal editors who do not engage in these underhanded tactics and strive hard to try to get the same amount of respect as print journals. But unfortunately journal boards turn over every year, so there is absolutely no guarantee that future Editors-in-Chief will share the same views as the Editor-in-Chief one deals with during the submissions and editing process.

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Blogger N.J.L.S. said...


After reading your posting, I went to the Pocket Part to get a better idea of the alteration you described. By no means do I condone an editors unilateral change to an author's work, but I have two issues I was hoping you or others would elaborate on.

1. The Editor's did not (apparently) delete any content from your article, but instead removed a hyperlink. They retained information relating to your association w/ AutoAdmit -- so the lingering question boils down to whether removal of a hyperlink, but retention of the original language constitutes 'altering' your content. I'm not sure that it does (although, I think it is entirely too close of a call to make without at least advance warning). While it potentially changes the reader's experience with your work, the underlying information is still available, and the 'alteration' is acknowledged and explained. Thoughts?

2. You noted that the editorial note contained "false and misleading information" about AutoAdmit and you personally. I certainly don't know all of the underlying events, but is it not accurate to say that "threats" and "defamatory comments" were posted on the site by users?

4/05/2007 10:44 PM  
Blogger Anthony Ciolli said...

There are several false and misleading statements in the editorial note. Defamation has a very clear legal meaning and most (if not all) of the posts in question, while offensive and in bad taste, are not defamatory. "Stupid B---- to Attend Yale Law," for instance, is clearly an opinion and not a statement of fact. Furthermore, there is no evidence that the statements that could be construed as statements of fact, like the allegation that the girl in that thread has a 159 LSAT, are actually false. Given that Yale Law School admitted three students with 3.75+ GPAs and sub-160 LSATs last year, there is a possibility that the statement actually is true (and the only poeple who can prove it false--the girl, LSAC, Yale's dean of admissions--have not released the information).

Second, AutoAdmit did not publish any of this information. In the absence of Section 230, AutoAdmit would likely be treated not as a publisher under the common law of defamation, but a distributor. After all, AutoAdmit itself did not author any of this content--unaffiliated third parties did--and AutoAdmit did not prescreen content before it was posted or advertise itself as a place that prescreens content. An individual reading that editorial note who is unfamiliar with AutoAdmit would conclude that AutoAdmit itself was authoring defamatory comments, which is simply not true.

Third, and most importantly, because the editorial note is linked to from my Pocket Part essay, readers would be misled into thinking that I somehow had decision making authority over the AutoAdmit message board. This is simply not true. My title at AutoAdmit was Chief Education Director. I had that silly title for a reason--I was the administrator of AutoAdmit Studies. Jarret Cohen has always had sole decision making authority over the message board--in fact him retaining absolute control over the board was a provision of our partnership agreement. Believe me, if I had sole decision making authority over the message board, I would have done things differently.

Once again, my real problem here is altering my essay's page to include a link to that statement, and implying that I was in a position to do something about what they're condemning without subjecting myself to a potential lawsuit for breach of fiduciary duty, breach of contract, and other assorted causes of action. I wouldn't care if the Yale Law Journal condemned AutoAdmit elsewhere on its site--in fact, depending on how that condemnation statement was worded, I might have signed it myself!

4/13/2007 1:14 AM  

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