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Law Review Shenanigans, This Time from a Faculty-Edited Journal:

My colleague Stephen Bainbridge (Business Associations Blog) reports on a faculty edited journal that basically accepted the piece and then in fairly short order withdrew the acceptance, apparently with no justification, offering "scrambled communications" as the only excuse. (I describe the first e-mail as an acceptance because of the statement, "I look forward to hearing back from you at your convenience with a revised final draft that I could then send along to [the chief editor] for conversion into galley proofs.") Not the best behavior, it seems to me.

Related Posts (on one page):

  1. More on "Law Review Shenanigans":
  2. Law Review Shenanigans, This Time from a Faculty-Edited Journal:
Bill Poser (mail) (www):
No, not the best behavior, but probably not a breach of contract as Professor Bainbridge suggests. It seems to me that submission of a paper to a journal is not an offer and acceptance of the paper therefore not acceptance for purposes of the law of contracts. Rather, submission of a paper is an invitation to treat and acceptance of the paper an offer. A contract is therefore only formed on the author's agreement to have that journal publish the paper. I suggest that this is the appropriate analogy because it is understood that what will be published is subject to negotiation. The author is saying to the journal: "Here is a paper that I have written. If you would like to publish it, propose a specific deal." Unlike the case of a retail transaction, the negotiable part is normally not the price but rather what modifications if any will be made to the paper.
6.9.2008 7:27pm
Smokey:
The law review's email states:
All changes have been tracked, and you can easily accept or reject any of them, as well as make any other changes you wish.
Doesn't that sound like a counter offer? If Prof B had accepted the proposed changes, wouldn't that constitute an offer and acceptance? I'm not sure, but the author states that he was essentially in agreement with all proposed editing.

It seems this law review's ethics need fixing.
6.9.2008 7:44pm
Bill Poser (mail) (www):
Smokey,

On your analysis, the contract was never formed and therefore could not have been breached. The latest stage to which it got was the journal editor's request for revisions. On your analysis, that was a counter-offer. To complete the contract, the author would have had to notify the journal of his acceptance, but he had not done so when the journal editor rescinded its acceptance.

In any case, I don't see how the journal's proposal of revisions can constitute a counter-offer if I am right in saying that the submission constitutes an invitation to treat rather than an offer.
6.9.2008 8:06pm
Smokey:
Bill Poser, I'll defer to your expertise. However, it still appears that there were behind-the-scenes shenanigans, no?
6.9.2008 8:18pm
Bill Poser (mail) (www):
Smokey,

I think that there are people here with greater expertise than mine. In any case, yes, I agree that what the journal did was improper. I'm just not convinced it was a breach of contract.
6.9.2008 8:24pm
Ex-Fed (mail) (www):
If only Prof. Bainbridge had chosen to write about Cambridge Commons statues and what they have to say about whether law students should pay for coffee or for starving children, it would have been snapped right up.
6.9.2008 8:31pm
AnonLawStudent:
Bill/Smokey,

Given the way the law review submission process works (mass submission to multiple journals), I think Bill is correct that submitting an article seems like an invitation for offers that is analogous to an advertisement. The acceptance by a particular journal would be an offer to publish (a conclusion that is reinforced by the fact that multiple journals may offer to publish). The author would then accept an offer from a particular journal. As long as the changes aren't material to the contract (e.g. clarifications, as seems to be the case for Prof. Bainbridge) it shouldn't be a problem that the final wording hasn't been agreed upon. That being said, I would be very surprised if on-point caselaw doesn't exist on this very issue.

Even if there weren't a contract, one could easily see a promissory estoppel claim if the author accepted from one journal while turning-down offers from other journals. For all of the contracts profs out there, this could be the spark of a great self-deprecating exam question.
6.9.2008 8:51pm
wb (mail):
As a journal editor, I find the comments about contracts etc rather off base given that the erroneous acceptance notice was promptly retracted. Errors are embarrassing to both the editor and author. Whether this is "not the best behavior" depends on how often such errors occur. That is an issue for the publisher to judge.

This is the case of a simple human error; at least from all the information given. The alternative to the corrected action is the editors affixing a notation directly to the paper stating that the paper is printed despite being below the threshold of quality, relevance, interest, etc.
6.9.2008 9:58pm
wb (mail):
I should further note that many - if not all publishers - follow up the acceptance with a formal agreement that the author is to sign. Such agreements may include transfer of copyright and if so what rights are to be reserved to the author. It is that signed agreement that constitutes the contract.
6.9.2008 10:05pm
AnonLawStudent:

It is that signed agreement that constitutes the contract.


Nope. Although a full transfer of copyright requires a writing, 17 U.S.C. Sec. 204, "[i]t doesn't have to be the Magna Charta; a one-line pro forma statement will do." Effects Associates, Inc. v. Cohen, 908 F.2d 555
(9th Cir. 1990) (Kozinski, J.); cf. Dean v. Burrows, 732 F.Supp. 816 (E.D. Tenn.1989) (signature on check is sufficient). Moreover, no writing is required for a non-exclusive license to publish, and such a license may be inferred from the conduct of the parties. See Effects Associates, 908 F.2d 555.

The alternative to the corrected action is the editors affixing a notation directly to the paper stating that the paper is printed despite being below the threshold of quality, relevance, interest, etc.

That would also likely be viewed as a breach, given the apparent deviation from the industry-standard terms that a court would imply in such a case.

Ex Fed wins the thread, btw.
6.9.2008 11:08pm
Bill Poser (mail) (www):
I've actually experienced the inverse situation. I once submitted a paper to a (non-law) journal. I received an acknowledgment but thereafter nothing for several months. While traveling I got into a discussion of journals' editorial practices with a colleague and mentioned the journal in question, asking if he had heard that they took a long time to review papers. He said: "Wait a second, didn't I just read that paper?" He was right. When I got home I found my copy of the journal, with my paper in it. They had accepted it and published it without revision without contacting me further!
6.9.2008 11:13pm
Constantin:
This happened to me at the Michigan Journal of Political Science when I was in law school. The journal accepted and even edited a seminar paper I'd submitted, only to yank the the offer due to "concerns" of the faculty editor. Bottom line was my piece advocated some foreign policy positions that the faculty member didn't agree with, so he spiked the piece. Some of the student editors were apologetic, and others tried (I can't blame them) to support the professor's claim that he'd discovered some kind of latent problem with the paper.

Bottom line, I got it published elsewhere within a week, so all's well that ends well, I guess.
6.9.2008 11:22pm
Hoosier:
Bill Poser--Congratulations?
6.9.2008 11:37pm
OrinKerr:
Nope. Although a full transfer of copyright requires a writing, 17 U.S.C. Sec. 204, "[i]t doesn't have to be the Magna Charta; a one-line pro forma statement will do." Effects Associates, Inc. v. Cohen, 908 F.2d 555
(9th Cir. 1990) (Kozinski, J.); cf. Dean v. Burrows, 732 F.Supp. 816 (E.D. Tenn.1989) (signature on check is sufficient). Moreover, no writing is required for a non-exclusive license to publish, and such a license may be inferred from the conduct of the parties. See Effects Associates, 908 F.2d 555.


Is the issue of whether there was a contract necessarily the same as whether there was was sufficient conduct to establish a license under the copyright law? I wouldn't think so.
6.9.2008 11:43pm
Hoosier:
I'm unclear on one matter: Are faculty-edited law journals peer-reviewed?
6.9.2008 11:45pm
AnonLawStudent:

Is the issue of whether there was a contract necessarily the same as whether there was was sufficient conduct to establish a license under the copyright law? I wouldn't think so.


I completely agree. My point was simply to refute wb's assertion that a later signed memorandum "constitutes the contract." The signed memorandum may be necessary or beneficial to the journal, depending on the type of license being granted, but I argue that such a writing is most definitely NOT necessary for the subsequently-rejected author to have claims in contract (which is what Prof. Bainbridge suggests in his post). Given modern academia's extreme fetish with publications, I can certainly see authors taking such a subsequent rejection quite seriously as a career matter.
6.9.2008 11:56pm
Bill Poser (mail) (www):
Hoosier,

It wasn't a problem. For one thing, in almost all fields other than law, it is considered improper to submit a paper to more than one journal at a time, so submission carries with it an implicit agreement to publish in that journal so long as the journal does not require revisions unpalatable to the author. Since they hadn't made any revisions, I had no reason to complain. It was just a bit weird.
6.9.2008 11:58pm
Bill Poser (mail) (www):
AnonLawStudent,

While I can see that the author might have claims based on promissory estoppel, he only has such claims if he has (a) reasonably (b) relied on the promise to his detriment. If the retraction of the acceptance by the journal follows the erroneous acceptance by, say, a week, the author would have acted reasonably in withdrawing the paper from other journals, but supposing the interval to have been very brief, as it seems to have been in this case, would the author's detrimental reliance be reasonable?

I'm dying to know if there is a case in which someone in this situation has sued for negligent infliction of emotional distress rather than breach of contract.
6.10.2008 12:10am
OrinKerr:
AnonLawStudent,

I appreciate the response, but what does copyright law have to do with whether the written contract is in fact the contract? The fact that you can grant a license without a formal written contract doesn't necessarily shed light on whether a formal written contract is needed to form a contract. Or is your assumption that because publishing contracts generally require the author to grant a license, then the law of licensing in effect governs the contract?

As for your comment about "authors taking such a subsequent rejection quite seriously as a career matter," this isn't Professor Bainbridge's concern. He's an established bigwig; my sense is that he doesn't care about the rejection but rather is just annoyed by the waste of his time.
6.10.2008 12:18am
Jim Rhoads (mail):
And in addition, Orin, impolite, discourteous and disrespectful to a fellow professor.

Where I come from, you don't do people that way.
6.10.2008 1:31am
Dr. Weevil (mail) (www):
Jim Rhoads:
When you write that they were "impolite, discourteous and disrespectful to a fellow professor", I hope you're not implying that it's OK to treat a grad student or adjunct instructor that way.
6.10.2008 6:46am
Xanthippas (mail) (www):
Whether or not there is breach of contract, there is certainly sorry-ness afoot.
6.10.2008 2:04pm
Jim Rhoads (mail):
I certainly did not suggest that, did I Dr. W? But this was faculty to faculty communication which made it even more problematic in my opinion.
6.10.2008 5:54pm
wb (mail):
The comments about the damages of withdrawing the paper from other journals reminds me that it is the peculiar view fixation of lawyers and law journals that simultaneous submissions are the practice. In almost every other profession and type of professional journal such a practice is highly and explicitly unethical.
6.10.2008 7:00pm