Professor Bainbridge...on law, politics, religion, culture & food

While I agree that it is unprofessional, I disagree that it was a stunt. It seems more like a screw-up. irritating? Yes. deserving of your (potential) vitriol? No.

A pleasant, professional, but pointed letter to the Dean might be a nice touch.

Message:

Is this any way to treat a colleague?

It is not like they didn’t cause you several hours of unnecessary work.

I’m on a student edited journal, and we just had an author withdraw his article… after it had gone through considerable editing.

It’s lame on both sides of the equation, though I think it’s much worse in your case than in mine.  I cannot imagine any reason why a journal would work up a piece and then decline it.  Reputation is everything to these journals, and it’s easy easy easy to lose some.

Most annoying--and rather odd, given the amount of work they had already put into the thing.

I presume that the line “We do hope you will keep the [redacted] in mind for future projects” is academy-speak, either for:
“It’s not you; it’s me.” --or--
“We can still be friends”

Either way, why being coy with the journal name?  Us lawyers are paid handsomely to publicly humiliate those who ahve done others wrong.

Sounds like there was an honest administrative screwup, but then once it was discovered it was handled badly. I can’t imagine it would have cost this journal much to just print the essay and make a note to improve their internal communications in the future.

As a recent student though, I have to point out that student-edited journals are not immune from ridiculous administrative screwups:

A few weeks ago I got an email at my GMail address that was meant for a law professor who happened to have my identical name, in which a student editor of a law journal rejected an article the law professor had submitted. After about 30 seconds with Google and then SSRN to confirm, I found the correct email address for the professor and forwarded the rejection to him, with my condolences.

I quickly received a response from this law professor, saying that he had actually withdrawn his submission using the ExpressO service back in March when he accepted an offer at a different journal.

Professor Brainbridge,

Please submit your article to the George Mason Law Review, at and we would be thrilled to take a look at your piece.
Thank you very much,

Josh Blackman
Articles Editor, George Mason Law Review

Game, set, match - George Mason, including the Freudian slip on the spelling of Prof. B’s name.

Apologies for the typo Professor B.

Your final theme not only failed to excoriate capitalism, corporatism, or economic rationalism, it made a facial case for the proposition that each might be a healthy, life-enabling concept, a heresy provided by you too smoothly, too misleadingly for the original editor to catch.

So surely you can’t be surprised that (while it took some time for this to come to the attention of some otherwise-uninterested senior faculty at the law review), a higher power would responsibly jump in for the sake of the publication itself (whose reputation for correct thought might be strong now, but, good lord, to publish - publicly! - the obviously neo-corporate canard that service to such concepts as you advocate might be as useful to humanity as direct service to The Holy Public - is simply too anti-intellectual, too vacuous, too . . .  well, just too wrong! - that the review’s reputation might well never recover from such a blow. One might as well write about how tax decreases could increase tax collections, or the flatness of the earth!

Professor, can you give us the time frame over which the e-mails were sent? If they were all sent within an hour or two of each other, I could see that as an unfortunate administrative error. But if they are separated by several days, then that is indeed an egregious error.

Is the GMU L. Rev. really begging for articles publicly in blog comments these days?  What benefits could possibly outweigh the harm to your “brand” of a move like this??

It looks to this lawyer as if the GMU folks are go-getters - and I have no affiliation with GMU, being a Vanderbilt grad.  The Prof is one of the top-cited scholars in corporations and securities law, and has been slighted - why not go for it?  From the fear that they would be subject to down-nosed looks from snooty blog commenters?  Seems that the calculation comes out with a much bigger upside than downside…

Why not just post the article online and bypass the on-paper law reviews, whether student-edited or not? I realize that you don’t get scholarly credit for self-publishing online, but Prof. B. has tenure, and his scholarly reputation is established and secure.

Given that the original blog offered the essay, it’s misleading to say that GMU is “begging” for articles.  One was offered, they asked for its proper submission.  It’s not like someone from GMU came here and posted a comment, irrelevant to the original blog, “We need law review articles.  Send us what you’ve got, folks!”

And they did so in a way that got them some notice.  I’ll be heading over to look at some of their recent editions once I’m done reading here, and I can guarantee that I wouldn’t browse similarly at incompetent law reviews (like [Redacted]) or stuffy reviews (like the one worked on by “Really?") if they were identified.

Good luck Professor Bainbridge.  I look forward to seeing your essay in GMU Law Review.

Professor Bainbridge,

I’m also curious why you are not revealing the journal’s name.  I sincerely doubt that we submit to the same journals, but I for one would never want to publish with a journal that would treat a colleague—any colleague, of any political stripe—with such contempt.  In my opinion, the journal in questions richly deserves the public flogging to which identification would no doubt lead.

Assuming the best - that it was some kind of administrative foul-up - my question is:  Doesn’t the chief editor know about the telephone?  Does he not realize that a personal phoned apology would be more appropriate and more acceptable than an email?

Or am I just an old fogey?  Should Prof B have been happy to get an email rather than a txt message “sry 4t mstke bt we ebb yr RTcL tnx cul”?

The Contract formation questions are at least as interesting as the question of manners.  As exam material it may be a little tough.  Is this a bargain situation in the first place?  If it is, has a promise been implied by the first email?  By the request for changes?  Does doing editorial work on the article constitute the sort of performance act which could constitute acceptance?  At what point is Bainbridge committed so that he is unable to withdraw the article?  Can the review insist on certain changes as a condition of publishing the article.

It’s not a binding contract under the facts we were given.  Submitting the piece is an invitation to make an offer and the offer of publication is the offer.  The offer would have be be accepted by Professor Bainbridge, and though I suspect that Professor Bainbridge did accept, we have no evidence of his having done so in his post.

If a submission was an offer and an email back was an acceptance, then the common practice of submitting an article to multiple law reviews at once would violate the law of contract every time an author had to chose one offer to publish over another.

Anonymous’s point seems mistaken to me.  Email 1 said that the EIC “has assigned me the pleasant task of doing the initial edit.” I seriously doubt that law-reviews, student or otherwise, often assign initial edits for articles they have not accepted.

I think anonymous has it right that submitting the piece can hardly be an offer given the common understanding that articles are submitted to multiple journals.  However, some peer reviewed journals require that an essay be submitted only to them - e.g. Journal of Legal Education - which might leave a possibility that the submission could be seen as an offer.  The email announcing the intention to edit the piece is a pretty sketchy basis to claim an offer has been made, though a claim as to what a reasonable person might understand as a promise can’t be dismissed out of hand.  The point would be whether a commitment to publish the article has been made.  The email expresses no commitment.  Nor is it clear even at this point that Bainbridge has promised to permit his piece to be published or that the journal has given up its right to require (rather than suggest)editorial changes.

I think it also remains significant whether this transaction resembles a social engagement more than a bargained for exchange.

I certainly take your point that law-reviews would likely not “often assign initial edits for articles they have not accepted.” And I agree that the article most likely had been accepted at a prior point in time (in emails that we don’t have) in light of that point. 

But, without more facts (e.g., that the journal in question requires exclusive submission, or that other emails were exchanged between the parties), I don’t see how my analysis is mistaken.  Professor Bainbridge suggested that one could “argue that [his] submission of [his] article was an offer and the first email was an acceptance by the journal[.]"). 

Such an analysis implies that an author that followed the common law review practice of submitting an article to multiple journals would be in breach of contract the moment that author received multiple “offers” to publish the manuscript.  That can’t be right can it?  Surely if it was, a famous and in demand professor would have been sued over the common practice by now?  Wouldn’t it make more sense, in light of the common submission practice, to treat the sequence of events in terms of contract formation in the manner I described in my previous post?

Indeed, the anonymous analysis makes most sense as to the initial communications.  Viewing the situation as a law school exam or hypothetical however, the objective test of the reasonable person leaves questions open as to the later emails.  Could a reasonable person view the request for editorial work as an offer accepted by Bainbridge’s work.  I don’t think so, but would it be a case for summary judgment.

I think the Professor’s professed uncertainty marks this as a pretty good situation for classroom discussion, and i still am intrigued by the question of whether this is a bargain at all.

We need an offer for there to be a contract. Restatetment 2d Contracts Section 24 defines an offer as “the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”

Bainbridge’s submission was clearly not an offer, as no one is justified in believing that the journal’s acceptance of the article would conclude their bargain, and that Bainbridge would then be bound. Bainbridge’s submission is merely an invitation to bargain.

The journal’s response is not an offer, either. Nothing it it manifests a willingness to enter into a bargain, nor does it invite assent. While an acceptance might be implied, an offer cannot be implied.

Clearly there is no offer; thus, clearly there is no contract. We need not go into whether the junior editor as agent has the capacity to bind the principal (the journal), which would also present problems (journals usually have a formal acceptance process, and Bainbridge would be remiss in the absence of a formal acceptance in accepting the junior editor’s apparent authority to bind the journal without further investigation).

While we may debate the social niceties of the journal’s handling of the situation, it seems to me like this was an unfortunate case of a mistaken junior staffer. Such a situation should certainly be dealt with in a more professional manner than it was, but I don’t see any obligation, legal or moral, flowing from the journal to Bainbridge beyond a more formal apology and a better explanation of their mistake.

"Professor Brainbridge,

Please submit your article to the George Mason Law Review, at and we would be thrilled to take a look at your piece.”

Wow.  Just, wow.

And then:

“It looks to this lawyer as if the GMU folks are go-getters ...  The Prof is one of the top-cited scholars in corporations and securities law, and has been slighted - why not go for it? “

Confirming the idea that “big names” rule the law review publishing world.  (Apparently the old line that Richard Posner could publish the first 100 pages of the Chicago phone book in the YLJ if he so chose is, in fact, true).

No wonder it’s so hard for the rest of universities to take law-school scholarship seriously.  We all figured out years ago that even the “top cited scholars” are capable of producing crappy work, which is why we have peer review.

I’m surprised at the criticism of GMU L Rev’s actions here.  Typo aside, I don’t see a problem.

“Is the GMU L. Rev. really begging for articles publicly in blog comments these days?”

No, they’re not.  They’re inviting a well-known scholar to submit a piece to them.  That’s pretty common practice, really. 

“Confirming the idea that “big names” rule the law review publishing world.  (Apparently the old line that Richard Posner could publish the first 100 pages of the Chicago phone book in the YLJ if he so chose is, in fact, true).”

Except that GMU has said nothing of the sort, have they?  They’ve invited him to send them his paper, to be reviewed. 

Quote:  “Please submit your article to the George Mason Law Review, at and we would be thrilled to take a look at your piece.”

That’s not a blind offer to publish the phone book.  That’s an invitation to send in a paper.  (It probably implies quick turnaround as well—something like the expedited review a piece is given if it has an offer elsewhere.)

Presumably, if he sends them the phone book, they’ll reply with a polite, “no, thanks.” (And the article’s available on SSRN, linked from the original post.  The GMU editors may have taken a look at that link before commenting.)

On the other hand, if professor Bainbridge’s paper is good (and not just the phone book), then this is a way for GMU to try to get a leg up on the competition.  Check Westlaw—the last three generalist law reviews that professor Bainbridge published in were UCLA, Harvard, and Texas.  GMU’s a good school, but unlikely to beat Harvard in head-to-head competition, and so they’re being proactive to seek out articles they might not otherwise expect to land. 

There are legitimate potential complaints that one can make about student-edited law reviews.  But “articles editors actively encourage and invite submissions from well-regarded scholars” is not one of them.

Ditto what Professor Wenger said. 

I’m biased as a GMU Law faculty member who has also happened to have the pleasure of having the editor-at-issue as a student.  But as Kaimi points out, it seems pretty obvious that GMULR is courting a submission from a top scholar --- pretty standard fare for law reviews.  One might have thought that the editor would receive extra points, not criticism, for showing a little bit of initiative and entrepreneurial spirit by extending the invitation in a timely fashion in a non-conventional forum.