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):
- More on "Law Review Shenanigans":
- Law Review Shenanigans, This Time from a Faculty-Edited Journal:
It seems this law review's ethics need fixing.
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the author would have had to notify the journal of his acceptance, but he had not done so when the journal editor rescinded its acceptance.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.
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.
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.
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.
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.
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.
Bottom line, I got it published elsewhere within a week, so all's well that ends well, I guess.
(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.
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.
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.
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.
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.
Where I come from, you don't do people that way.
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.