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CODE OF ETHICS OF
THE TN JOURNAL OF PRACTICE AND PROCEDURE
PREAMBLE
1. The Journal is not published in a vacuum. The Journal has the potential to stimulate critical thinking, provoke sharp debate, and through adoption by courts, arbitrators, legislative agencies, and other decision makers, change the course of life and liberty. Hence, legal journals hold a special place of trust and importance in the legal system and in society.
2. The Journal performs various functions. As a synthesizer of the law, the Journal provides an overview of the law. It details growth and change in the law. As a commentator on the law, the Journal introduces ideas upon which others may reflect. As a critic of the law, the Journal challenges the past and current state of the law in order that changes may be made that will improve the law, thereby securing greater justice in society.
3. In all actions, the Journal staff and the Journal author must be competent, prompt, and diligent. The Journal staff and the Journal author must maintain communications as described by these rules. The Journal staff and the Journal author must keep in confidence certain information as set out in these rules.
4. The conduct of the Journal staff and the Journal author must conform to the requirements of the law. Legal journals may be used only for legitimate purposes. Journal staff and Journal authors must demonstrate respect for the legal system and must seek to uphold legal process. At the same time, Journal staff and Journal authors can and should seek to inform and advocate so that the legal system can be changed.
5. Legal journals play a vital role in the preservation of society. The fulfillment of this role requires an understanding by both Journal staff and Journal authors of their relationship to our legal system. These rules, when properly applied, serve to define that relationship.
SCOPE
1. These rules are rules of reason. They should be interpreted with reference to the purpose of legal journals and of the law itself. Following each rule are one or more comments. These comments are designed to explain the purpose and demonstrate the application of the rules. The comments are meant as illustrations, and are not to be taken as exclusive applications of any given rule.
2. The rules presuppose a larger legal context shaping the Journal's role. That context, whose outside boundaries are society and whose inside boundaries are the law, consists of many factors. These rules do not exhaust the moral and ethical considerations that should inform Journal staff and Journal authors of their obligations, since no code or set of proscriptions can ever completely guide or regulate human activity. Thus, these rules are meant to provide a framework on which to build.
3. Failure to follow these rules is a basis for invoking the rules. Such invocation can take many forms, from mere private disapproval to public reporting of an incident (such as to a regulatory board or a professional society or association). The severity of the punishment depends upon an assessment of all the relevant circumstances, including the willfulness and seriousness of the violation, the existence of extenuating factors, the harm caused, and the past history of violations by the offender. These rules do not in any manner affect the operation of public laws, such as the law of libel and the law of copyright.
TERMINOLOGY
1. "Author" or "Journal author" as used in these rules denotes the author of any manuscript, regardless of whether the individual is a student or a non-student and regardless of whether the individual holds a J.D. degree or its equivalent.
2. "Journal" denotes a law-related publication, edited either by law students, law faculty, or both, which appears at least once each calendar year in a permanent form, and which as used in these rules has as its main mission the scholarly presentation of legal issues, ideas, or developments on one or more subjects.
3. "Journal staff" denotes any member of the Journal, including the editor in chief, senior editors, junior editors, members of the Journal board, candidates for positions with the Journal, clerical and printing personnel, and faculty or other advisors while engaged in their roles as advisors.
4. "Manuscript" denotes any address, article, bibliography, comment, essay, note, speech, survey, or work, regardless of its stage of completion and regardless of its source or authorship, which either appears, or is intended to appear, in whole or in part, in the Journal.
I. GENERAL OBLIGATIONS
RULE 1.1 INTEGRITY
JOURNALSTAFF AND AUTHORS SHALL CONDUCT THEMSELVES AT ALL TIMES WITH INTEGRITY.
COMMENT:
[1] It is not easy to define integrity. In its broadest sense it means, at a minimum, to act in an honorable and decent fashion.
[2] What constitutes acting in an honorable and decent fashion will depend in each instance on the particular circumstances then existing.
RULE 1.2 DILIGENCE
JOURNALSTAFF AND AUTHORS SHALL CONDUCT THEIR AFFAIRS IN A DILIGENT MANNER.
COMMENT:
[1] In all human conduct, but particularly in matters of a legal or quasi-legal nature, timeliness often is critical. When matters are put off, promises are left to wither, and obligations are allowed to become stale, relationships become strained, opportunities are lost, and justice may be denied.
[2] Although it is not easy to define diligence, and what may be an appropriate timetable in one case may be wholly unacceptable in another, as used in these rules diligence should be understood as meaning that all activities are carried out with that degree of speed and promptness that the ordinary person in similar circumstances would consider appropriate upon measured consideration of all relevant factors.
[3] If a Journal member or a Journal author finds that a matter cannot be attended to promptly, steps must be taken to ameliorate any negative consequences that are likely to occur as a result of the expected delay.
RULE 1.3 CONFIDENTIALITY
JOURNALSTAFF AND AUTHORS SHALL MAINTAIN SUCH CONFIDENCES AS THEY MAY BE GIVEN.
COMMENT:
[1] In the course of carrying out their duties, Journal staff and Journal authors may at times become privy to sensitive material, information, or news. When this occurs, the recipient must take all necessary steps to ensure that the confidence is maintained.
[2] Whether a particular item is confidential can only be determined on a case-by-case basis, although close cases should be decided in favor of a finding of confidentiality. Where it is known that the item is considered confidential by one or more persons, the item should be treated as confidential unless it is patently obvious that the item is in the public domain.
[3] Although Journal staff and Journal authors have an obligation to maintain inviolate confidential items, they may reveal such items when required to do so by law or in order to defend themselves against charges of misconduct. In the event of a conflict between this Rule and Rule 1.5, the latter Rule shall control.
RULE 1.4 CONFLICTS OF INTEREST
JOURNALSTAFF AND AUTHORS SHALL AVOID CONFLICTS OF INTEREST, AS WELL AS THE APPEARANCE OF SUCH CONFLICTS.
COMMENT:
[1] A conflict of interest is any matter, influence, person, thing, or emotion which tears at the loyalty, impedes the duty, affects the judgment, or interferes with the proper functioning of the Journal.
[2] A conflict of interest may be overt or covert. Because many conflicts are subtle in nature and therefore difficult to discern, both Journal staff and authors have a continuing duty to be on guard against conflicts of interest.
[3] Because of the grave threat posed by conflicts of interest, even the slightest appearance of a conflict should be treated as though it were a conflict of interest.
RULE 1.5 REPORTING MISCONDUCT
JOURNALSTAFF AND AUTHORS SHALL REPORT MISCONDUCT IN A TIMELY FASHION TO THE APPROPRIATE AUTHORITIES.
COMMENT:
[1] If the Code of Ethics is to be effective, transgressions against its provisions must be reported in a timely and complete manner. All Journal staff and authors have a continuing and individual duty to report misconduct as well as perceived misconduct. In the event of a conflict between this Rule and Rule 1.3, this Rule shall control.
[2] Instances of misconduct should not be reported until the reporter has satisfied himself or herself that misconduct appears to have taken place or is about to take place. At the same time, it is unacceptable to delay reporting misconduct in the hope that the problem will cure itself. It is also unacceptable to fail to report misconduct in the belief that it will be reported by another, unless steps are taken to verify that such a report has been made. A failure to report misconduct is itself misconduct.
[3] Who is an "appropriate authority" turns on the facts of each case. By way of example only, the following might be appropriate authorities: senior members of the Journal; the Journal faculty advisor; a bar association; a professional or trade association; an employer.
RULE 1.6 REMEDIAL MEASURES
WHERE A VIOLATION OF THE CODE OF ETHICS HAS OCCURRED, THE JOURNAL STAFF OR AUTHOR (AS THE CASE MAY BE) SHALL TAKE ALL NECESSARY REMEDIAL MEASURES.
COMMENT:
[1] Just as there is a duty to report misconduct, so there is an obligation to set matters straight once the misconduct has come to light. A failure to engage in meaningful remedial measures is misconduct in its own right.
[2] Suitable remedial measures are such measures as are likely to undo the harm caused by the misconduct to the greatest extent practicable. Although it is axiomatic that "more could be done," a good faith effort to set things straight normally will suffice.
[3] What constitutes a suitable remedial measure generally should be determined by the underlying misconduct. The greater the initial error, the greater the necessary restitution.
[4] The obligation of the Journal staff or the Journal author to engage in remedial measures is separate and apart from any efforts that may be engaged in or contemplated by the civil authorities.
II. OBLIGATIONS OF THE JOURNAL STAFF
A. Obligations to Authors
RULE 2.1 SOLICITATION OF MANUSCRIPTS AND OFFERS TO PUBLISH
THE JOURNAL STAFF SHALL BE DILIGENT, TIMELY, AND HONORABLE IN SOLICITING MANUSCRIPTS AND EXTENDING OFFERS TO PUBLISH MANUSCRIPTS.
COMMENT:
[1] The Journal staff shall act honorably in the processes of soliciting manuscripts and extending offers to publish. Individual staff members who have any degree of self-interest in the solicitation of particular authors or the acceptance of particular manuscripts shall not take part in such processes. For instance, a Journal staff member shall not take part in any decisions involving authors who are close personal friends, present or future employers, or family members. The foregoing, however, shall not prevent any Journal staff member from providing to other members of the Journal the names of persons who might be approached for manuscripts.
[2] The Journal staff shall not engage in any decision-making for personal gain in connection with the solicitation of manuscripts or offers to publish manuscripts. Personal gain implicates such matters as the influencing of friendships, sexual relationships, professional references, professional relationships, and financial gain.
[3] The Journal staff shall avoid even the possible appearance of impropriety in regard to the solicitation of manuscripts and offers to publish manuscripts.
[4] The Journal staff shall avoid misleading authors in regard to the solicitation of manuscripts and offers to publish manuscripts. The Journal staff shall clearly set forth the degree of commitment of the Journal to the author at each stage of the solicitation and publication process. With regard to the solicitation of manuscripts, for example, the Journal staff shall indicate clearly whether there is a promise to give a good faith review of a manuscript or whether there is a firm promise to publish a manuscript or proposed manuscript.
RULE 2.2 PUBLICATION SCHEDULES
THE JOURNAL STAFF SHALL SET AND MAINTAIN REASONABLE AND TIMELY PUBLICATION SCHEDULES.
COMMENT:
[1] The Journal staff shall inform authors in writing of the proposed publication schedules for their manuscripts and promptly notify authors in writing of any modifications of such schedules, particularly with respect to delays in the process.
[2] The publication schedule is to be one about which both the Journal staff and the author are informed at all times and to which both parties have assented.
[3] The Journal staff shall establish reasonable schedules for the publication of manuscripts, which schedules shall reflect honest and diligent efforts to approximate the time necessary to accomplish the publication of manuscripts. The Journal staff must not announce unreasonable publication schedules in order to attract commitments from authors.
[4] Unreasonable delay by the Journal staff in abiding by the established publication schedule constitutes grounds for the withdrawal of the manuscript by the author.
RULE 2.3 EDITING OF MANUSCRIPTS
THE JOURNAL STAFF SHALL EDIT MANUSCRIPTS WITH DILIGENCE, FAIRNESS, AND IMPARTIALITY.
COMMENT:
[1] The Journal staff's primary substantive function is to ensure the accuracy of the manuscript in terms of its clarity of language, correctness of grammar, and completeness and accuracy of research and analysis.
[2] The Journal staff may not censor manuscripts by manipulation in the editing process. This prohibition applies to both the modification of the author's views and the inclusion of the views of the Journal staff.
[3] The Journal staff must, in fairness to the Journal author, advise the author of proposed corrections and changes sufficiently in advance of the deadline for the completed manuscript to permit consideration by the author and further communication between the author and the Journal staff. This exchange shall occur at every stage of the editing process.
[4] The Journal author is entitled to place reasonable time limits on the steps in the editing process, and the failure of the Journal staff to honor such reasonable time limits constitutes grounds for the Journal author to withdraw the manuscript.
[5] Where there are differences of view as to editorial changes in the manuscript, the Journal author enjoys the ultimate authority about the style and content of the manuscript. If the Journal staff and the Journal author cannot agree on matters of sufficient consequence to cause the Journal staff to withdraw its offer to publish, such decision must be made and communicated to the author at the earliest practicable time.
RULE 2.4 PROGRESS REPORTS AND OTHER COMMUNICATIONS
THE JOURNAL STAFF SHALL KEEP AUTHORS APPRISED OF WHAT PROGRESS HAS BEEN MADE ON THEIR MANUSCRIPTS IN A REASONABLE MANNER AND SHALL ENGAGE IN COMMUNICATION WITH ALL AUTHORS IN A REASONABLE MANNER.
COMMENT:
[1] The Journal staff shall periodically advise all authors of what progress has been made in regard to their manuscripts.
[2] The Journal staff shall respond in a timely and diligent fashion to all reasonable requests for information from authors. The Journal staff must be fair about such communications and should expect authors to respond to inquiries from the Journal no more promptly than the Journal responds to inquiries from authors.
RULE 2.5 COPYRIGHTS, ADAPTATIONS, AND REPUBLICATIONS
THE JOURNAL SHALL HAVE THE RIGHT TO SEEK THE COPYRIGHT ON A MANUSCRIPT, BUT THE JOURNAL STAFF SHALL HONOR THE SUBSTANTIAL INTERESTS OF THE AUTHOR IN THE MANUSCRIPT.
COMMENT:
[1] The Journal must accede to the request of an author to have the copyright to his or her own manuscript.
[2] If the Journal holds the copyright, the Journal shall allow the author to adapt and republish the manuscript.
[3] If the Journal holds the copyright, the Journal shall not allow adaptation or republication of the manuscript without the prior written consent of the author, which consent shall not be unreasonably withheld.
RULE 2.6 ADVISING AUTHORS OF THE CODE OF ETHICS
THE JOURNAL STAFF SHALL UNDERTAKE EFFORTS TO PUBLICIZE THE EXISTENCE OF THIS CODE OF ETHICS TO ALL AUTHORS WHO SUBMIT MANUSCRIPTS OR WHO INDICATE AN INTENTION TO SUBMIT MANUSCRIPTS TO THE JOURNAL.
COMMENT:
[1] The fact that the Journal abides by this Code shall be noted in its masthead. If the notice also contains a reference as to where the text of the Code can be found, the Journal shall be deemed to have fulfilled the requirements of this Rule.
[2] Copies of this Code shall be included as part of the orientation materials of all candidates or newly accepted members of the Journal.
B. Obligations to the Profession
RULE 3.1 SELECTION OF THE JOURNAL STAFF
THE PROCESS OF SELECTING MEMBERS OF THE JOURNAL STAFF SHALL BE CONDUCTED IN AN OBJECTIVE AND FAIR MANNER.
COMMENT:
[1] The procedure for selecting members of the Journal shall be set forth in writing and published conspicuously for all interested persons to read.
[2] The written procedure must be scrupulously adhered to in order to ensure the fairness and integrity of the process and to minimize the possible effect of improper influences, such as popularity or friendships.
[3] Information about students that is private in nature must be treated with the strictest confidence, as is consistent with Rule 1.3.
RULE 3.2 SELECTION OF THE JOURNAL EDITORS
THE PROCESS OF SELECTING EDITORS OF THE JOURNAL SHALL BE CONDUCTED IN AN OBJECTIVE AND FAIR MANNER.
COMMENT:
[1] The procedure for selecting the editors of the Journal shall be set forth in writing and published conspicuously for all interested persons to read.
[2] The written procedure must be scrupulously adhered to in order to ensure the fairness and integrity of the process and to minimize the possible effect of improper influences, such as popularity or friendships.
[3] Information about students that is private in nature must be treated with the strictest confidence, as is consistent with Rule 1.3.
RULE 3.3 JOURNAL STAFF RELATIONS
THE JOURNAL STAFF SHALL TREAT EACH OTHER WITH RESPECT, CIVILITY, AND PROFESSIONAL COURTESY.
COMMENT:
[1] Although the Journal is a hierarchial entity that must meet deadlines, it is also a living organism inhabited by human beings whose feelings and frailties must be recognized and respected.
[2] In the conduct of the Journal's activities, it is unacceptable behavior for one member to purposely attempt to embarrass, harass, humiliate, or otherwise interfere with the rights, duties, obligations, or dignity of another member. What constitutes unacceptable behavior depends upon the particular circumstances. Unacceptable behavior extends to inappropriate sexual suggestions or threats.
[3] The foregoing is not meant to impugn or limit the ability of an editor, staff member, or candidate from carrying out his or her duties by delegating work assignments or ensuring that such assignments are being completed in an appropriate and timely manner.
RULE 3.4 RELATIONS WITH THE STUDENT BODY
THE JOURNAL STAFF SHALL SHOW RESPECT FOR AND HONOR THE INTEGRITY OF STUDENTS WHO ARE NOT MEMBERS OF THE JOURNAL.
COMMENT:
[1] Consistent with the mandate of Rule 1.3, the Journal staff must not improperly disclose the substance of confidential information about any student, including students who are not members of the Journal. This limitation extends to information about students who may have been associated with the Journal and who are still in law school and about students who have left the law school because of graduation or for other reasons.
[2] The Journal staff must refrain from condescending behavior toward or criticizing students not on the Journal solely because they are not associated with the Journal. This directive also applies to inappropriate conduct aimed at competing associations and activities such as moot court participation and membership on specialty legal journals and journals.
[3] It is particularly inappropriate conduct for the Journal staff to attempt to undermine the position of other students in the course of their efforts to obtain employment in the legal profession or otherwise.
RULE 3.5 RELATIONS WITH THE LAW SCHOOL
THE JOURNAL STAFF SHALL ASSIST IN FOSTERING THE INTEGRITY AND COMPETENCE OF ITS LAW SCHOOL.
COMMENT:
[1] Although the primary mission of the Journal staff is the production of the Journal in a timely and competent fashion, the Journal staff also has a duty to support its law school.
[2] In carrying out the foregoing, the Journal staff shall be mindful of the directives contained in Rule 3.4 and the comments to that rule.
RULE 3.6 RELATIONS WITH OTHER LEGAL JOURNALS
THE JOURNAL STAFF SHALL RESPECT THE RIGHTS OF THE STAFFS OF OTHER LEGAL JOURNALS AND ACT WITH FAIRNESS IN THE SOLICITATION AND ACCEPTANCE OF MANUSCRIPTS.
COMMENT:
[1] A spirit of friendly and professional competition between legal journals for manuscripts and for the prestige that may correspond to success in connection therewith is appropriate and will improve the performance of the various legal journals.
[2] Such competition, to the extent that it exists and improves the quality of legal journals generally, shall be conducted in an absolutely honorable fashion as is consistent with other specific provisions of this Code.
III. OBLIGATIONS OF THE JOURNAL AUTHOR
A. Obligations to the Journal
RULE 4.1 ORIGINALITY OF MANUSCRIPTS SUBMITTED FOR PUBLIC-ATION
A JOURNAL AUTHOR SHALL SUBMIT ONLY ORIGINAL MANUSCRIPTS FOR PUBLICATION.
COMMENT:
[1] The most basic obligation of a Journal author is to produce manuscripts through the use of the Journal author's own talents, skills, knowledge, creativity, mental processes, research, and time. Thus, a manuscript that is not the product of the Journal author's own efforts is not an original manuscript.
[2] Consistent with the Code of Ethics, the limited use of other sources, if proper credit is given, does not make an otherwise original manuscript into one that is not original.
RULE 4.2 SOLICITATION AND ACCEPTANCE OF PUBLISHING OFFERS
A JOURNAL AUTHOR SHALL BE DILIGENT, TIMELY, AND HONORABLE IN SOLICITING AND ACCEPTING PUBLISHING OFFERS.
COMMENT:
[1] The solicitation and acceptance of publishing offers by Journal authors has been the subject of much abuse over the years. In particular, instances of a Journal author using an offer by one Journal staff as a "bargaining chip" with another Journal staff are rampant. Similarly, instances exist in which a Journal author has withdrawn a manuscript from one legal Journal when another has made an offer to publish. Such "trading up," as these practices are commonly called, are both reprehensible and unacceptable.
[2] As an adjunct to the phenomenon of trading up, it has become fashionable for Journal authors to send out copies of the same manuscript simultaneously to numerous legal journals. While this practice is lamentable, it is not a breach of these rules for an author to do so if: (a) the author makes it clear that he or she is engaging in the practice; and, (b) the author does not as a result of such simultaneous distribution engage in trading up practices.
RULE 4.3 WITHDRAWAL OF MANUSCRIPTS OR PROMISED MANUSCRIPTS
A JOURNAL AUTHOR SHALL NOT WITHDRAW AN ACCEPTED MANUSCRIPT, NOR FAIL TO DELIVER A PROMISED MANUSCRIPT, UNLESS GOOD CAUSE EXISTS TO JUSTIFY SUCH ACTION.
COMMENT:
[1] A Journal author who has accepted a publishing offer from the Journal, or who has agreed to deliver a manuscript to the Journal, is under a duty not to breach his or her promise. This is true for at least two reasons. First, the Journal enterprise is one that is uniquely built on trust. Just as the readers of the Journal trust that the manuscripts that appear in the Journal are original, complete, and accurate, so the Journal staff trusts that its authors will live up to their commitments. Where the trust is broken, the Journal begins to crumble. Second, the nature of the Journal enterprise requires the timely delivery and publication of manuscripts. Where this fails to occur the Journal is unable, except by luck or happenstance, to fulfill its role in society. When this occurs, the ability of the llegal Journal to guide the law along the proper path is upended.
[2] At certain times, however, it is both appropriate and desirable for a Journal author to withdraw a completed manuscript or decline to deliver a promised manuscript. By way of illustration only, these times include: when the author has been misled by the Journal as to the expected date of publication; when an impasse has occurred between the Journal staff and the author that cannot be resolved despite the good faith efforts of both sides; or when the author has come to the honest conclusion that the promised manuscript either cannot or should not be completed or delivered.
[3] As noted in the comments accompanying Rule 4.2, it is never acceptable for an author to withdraw an accepted manuscript, or fail to deliver a promised manuscript, if the author's sole motive is to be able to accept a publishing offer from a competing legal Journal.
[4] Because of the serious nature of a decision to withdraw or refuse to
deliver a manuscript, the Journal author must make and communicate all such decisions to the Journal staff in a timely manner, as set forth in Rule 1.2.
RULE 4.4 DEALINGS WITH THE JOURNAL STAFF
A JOURNAL AUTHOR SHALL ACT FAIRLY IN ALL DEALINGS WITH MEMBERS OF THE JOURNAL STAFF. AN AUTHOR SHALL NOT TAKE ADVANTAGE OF ANY OFFICIAL OR UNOFFICIAL POSITION THAT THE AUTHOR MAY HOLD.
COMMENT:
[1] In the relationship between a Journal author and a Journal member, there may be times when the Journal author is in a position to take advantage of the Journal member by misleading the member or exerting undue influence. This is particularly true where the Journal author is on the faculty of the law school of which the Journal member is a student.
[2] Instances in which a Journal author may come to have the opportunity to mislead or exert undue influence on a Journal member are so numerous that it is impossible to catalogue all of them. The most blatant example, however, is where the Journal author conditions the awarding of a grade or the giving of a recommendation on the Journal's acceptance of a manuscript for publication. Another example is a Journal author's premeditated decision to have Journal staff members extensively revise a manuscript due to the Journal author's knowing failure to properly prepare the manuscript prior to its submission to the Journal. A third example is a Journal author's use of threats against the Journal member, especially where such threats imply that the member's law school record will be damaged. In certain circumstances, sexual liaisons with a staff member may also provide opportunities for a Journal author to violate this Rule.
[3] Yet another example of a Journal author acting in bad faith is the author who fails to meet reasonable deadlines, particularly when asked to inspect page proofs. Excessive delay by the Journal author shall constitute grounds for the Journal staff to either publish the manuscript "as is" or to drop the manuscript from production.
RULE 4.5 COPYRIGHTS, ADAPTATIONS, AND REPUBLICATIONS
A JOURNAL AUTHOR SHOULD PERMIT THE JOURNAL TO HOLD THE COPYRIGHT ON THE MANUSCRIPT. WHERE THE AUTHOR ELECTS TO HOLD THE COPYRIGHT, THE AUTHOR SHALL PERMIT THE JOURNAL REASONABLE ACCESS TO THE MANUSCRIPT FOR PURPOSES OF ADAPTATIONS AND REPUBLICATIONS.
COMMENT:
[1] Consistent with Rule 2.5, a Journal author should, except in unusual instances, permit the Journal to take out and hold the copyright on any manuscript published by the Journal. One acceptable reason for the author rather than the Journal to hold the copyright is where the author plans to incorporate the manuscript into a larger work, such as a book. In the final analysis, however, it is up to the author to decide whether to grant the copyright to the Journal.
[2] Where the author elects to hold the copyright, he or she should consent freely to all reasonable requests by the Journal to adapt or republish the work, particularly where the request is for republication in an electronic data base. The failure of an author to respond to such requests in a timely fashion shall constitute the unreasonable withholding of permission.
B. Obligations to Readers
RULE 5.1 ATTRIBUTION
A JOURNAL AUTHOR SHALL ATTRIBUTE ALL MATERIAL THAT IS NOT ORIGINAL.
COMMENT:
[1] A Journal author will often rely on ideas that are the creation of someone else. In the abstract, such reliance is not only proper but actually necessary, since the law is a set of building blocks that is constantly being used to fashion new ideas. Thus, reliance on the ideas of others is to be encouraged, because such reliance is nothing more than the affirmance of the natural order of life.
[2] With the decision to rely on the writings of others, however, comes the responsibility of informing the reader that certain ideas have been borrowed. A reader can be informed in one of two ways. At the start of the manuscript, the author can advise the reader of the principal writings that have been relied on. This means of information is particularly suitable where general thoughts rather than specific ideas have been borrowed. Alternatively, a reader can be informed that borrowing has taken place by means of a footnote or parenthetical reference at the point in the manuscript where the borrowing has occurred. This means of informing the reader is to be preferred when a specific idea has been borrowed.
[3] How much of another's efforts can be borrowed without the manuscript becoming a mere paraphrase of the original writing, or, in extreme cases, an instance of plagiarism, is difficult to say. On the one hand, it may be argued with some sincerity that there are no original ideas. On the other hand, it may be argued that all ideas are original to a given individual, regardless of how many times the idea has been proposed by others. In the final analysis, whether a manuscript constitutes impermissible borrowing can be determined only on a case-by-case basis and by considering such matters as syntax, style, grammar, punctuation, and the like.
RULE 5.2 VERIFICATION OF SOURCES
A JOURNAL AUTHOR SHALL TAKE SUCH STEPS AS ARE NECESSARY TO PERMIT THE MANUSCRIPT'S SOURCES TO BE VERIFIED.
COMMENT:
[1] All sources cited by a Journal author must be indicated in such a fashion as to make their retrieval as speedy and easy as possible. This is so for two reasons. First, it allows the reader to more critically evaluate the Journal author's arguments and come to a more informed decision regarding the validity of the manuscript. Second, it facilitates the reader's use of the manuscript.
[2] In most instances, reliance on one of the commonly-used systems of citation, such as those published by the Harvard Legal Journal (the Blue Book) or the University of Chicago Legal Journal (the Maroon Book), will satisfy this Rule.
[3] If, despite following the instructions set forth in one of the commonly- used systems of publication, the origin and location of a source are unlikely to be readily located, the Journal author must add sufficient additional information so as to comply with this Rule.
RULE 5.3 DISTORTION OF SOURCES
A JOURNAL AUTHOR SHALL NOT DISTORT ANY SOURCES CITED IN THE MANUSCRIPT.
COMMENT:
[1] At times, a Journal author will find that a source only partially supports the Journal author's point of view. In such instances, the Journal author may not use the source in any manner that would be misleading or untruthful.
[2] Thus, for example, a Journal author may not quote only part of a writing where to do so would be misleading. Similarly, a Journal author may not quote an earlier edition of a writing when a later edition contradicts the earlier writing. Similarly, a Journal author may not piece together portions of a writing in order to distill from it a meaning that is inconsistent with the writing when taken as a whole.
[3] While observing the foregoing, a Journal author may suggest that a writing is correct in so far as it supports the Journal author's own views but is wrong in so far as it differs from the Journal author's views.
RULE 5.4 CONTRADICTORY AUTHORITIES
A JOURNAL AUTHOR SHOULD CANVASS AND DISCUSS CONTRADICTORY AUTHORITIES.
COMMENT:
[1] One of the greatest strengths of legal journals is that they are able to present a balanced view of legal issues. In doing so, they rise above partisan and petty politics and assist in the law's growth through informed analysis that considers all aspects of a matter. The maintenance of this unique characteristic is of vital importance.
[2] In order to ensure that legal journals are able to continue fulfilling their unique role in society, Journal authors should respond to or otherwise deal with those authorities that are relevant to the subject of their manuscript, including those that challenge or contradict the Journal author's own deeply-held beliefs and views. A full and fair airing of such authorities helps the reader to evaluate and judge the worth and validity of the Journal author's own manuscript.
[3] The foregoing should not be taken, however, to limit the Journal's ability to publish manuscripts that do not strictly comply with this Rule. Such manuscripts often are among the most provocative and thoughtful pieces in a Journal issue. It may be useful, however, when publishing such a manuscript to label it as "opinion" or "commentary" for the benefit of the Journal's readers.
RULE 5.5 UNDUE CREDIT
A JOURNAL AUTHOR SHALL NOT TAKE UNDUE CREDIT FOR ANY MANUSCRIPT.
COMMENT:
[1] It is the exceptional legal Journal author who can produce a manuscript without the assistance of others. In the course of production a Journal author may depend, at one time or another, on partners, associates, law professors, librarians, student research assistants, members of the bar, government officials, private persons, and relatives and other loved ones. A feeling of gratitude may lead the Journal author to privately thank some or all of these persons.
[2] In addition to whatever private appreciation the Journal author chooses to display, the Journal author may be obligated to note the identities of such persons in the manuscript itself.
[3] In deciding which contributions must be acknowledged, the test to be employed is not one of common courtesy. Rather, the test is whether given individuals have made such significant contributions, or have performed their jobs in a manner so far beyond the normal requirements of those jobs, that to deny them public acknowledgment would constitute an unfair use of their efforts, talents, or time. In close cases, the Journal author should opt for acknowledgement.
[4] Although a general acknowledgment is proper, a Journal author may, where the circumstances warrant, indicate the exact role played by the individual in the production of the manuscript.
[5] Quite apart from the foregoing, a Journal author may not take credit for a manuscript with which the Journal author had only minimal involvement. Similarly, a Journal author may not allow the Journal author's name to be added to a manuscript simply because doing so increases the stature of the manuscript. Thus, for example, law professors may not add their names to manuscripts prepared by their students, even if the law student wishes to have the law professor do so in order to increase the likelihood of publication. In such circumstances, law professors may add their names to the manuscript only if they make a substantial material addition to the manuscript, such as by adding new portions or ideas to the manuscript or revising the text or footnotes in a meaningful manner.
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