February 11, 2005

Legal Scholarship: A Vision of the Future

Christine has been keeping us up to date on recent developments in law review publishing, most importantly the decision of the Harvard Law Review editors and the editors of several other top law reviews to establish page limits on articles. One aspect of this development that Christine has not mentioned and that deserves some consideration: these are students telling professors what will be published in their primary academic journals!

That last sentence -- especially the exclamation mark -- should convey a sense of outrage, but I am not outraged at the current students who edit law reviews. Nor am I outraged that the editors of the Harvard Law Review or the editors of any other law review have decided to impose page limits. I was one of those students not all that long ago (ok, 15 years ago, but it doesn't seem that long to me), and I participated in the survey that led to this policy. Moreover, I was one of the 90% of respondents who felt that law review articles are too long. So I am sympathetic to these students and supportive of their efforts.

So where is my outrage directed? At our scholarly community for the perverse structure of academic publications about law, in which students call the shots and professors kowtow to them. Do you have any doubt that law professors kowtow to student editors? How do you think law review articles got so long in the first place? There are two obvious sources of length:

(1) Every law review article is expected to contain within it a literature review, which usually comprises Part I and takes anywhere from five to 20 pages. Or more. In other disciplines, literature reviews are occasional, freestanding pieces written by established scholars. They are an opportuntity to take stock of developments and to suggest trends and directions. In some ways, we legal scholars have the advantage of being forced to constantly survey our fields, but writing these literature reviews is time-consuming and redundant. Why do we do this? Because we know -- usually from personal experience -- that the editors who read our work will have no idea where it fits into a larger framework. With rare exceptions, student editors are unable to assess the significance of the work within the field unless we provide some guidance.

(2) Law review articles are painstakingly footnoted. Articles with 500 or more footnotes are common, and articles with fewer than 100 footnotes are rare. Those of us whose names are not immediately recognizable to law students at top journals (i.e., almost every law professor except those at the editors' own school plus 10 or 15 others) feel the need to prove ourselves, and one way to demonstrate the care with which we have assembled our argument is to footnote expansively.

The irony of the new Harvard Law Review policy, therefore, is that we were writing long articles for the students!

Over the past few months, I have had many conversations with other legal academics about our system of publishing, and for the first time in my career, I sense a desire for fundamental change. I attribute this shift to the development of electronic publications, such as the Social Science Research Network, which has been wildly successful in disseminating working papers in law and other social sciences. More recently, it has become a useful source for accessing full-text articles published in various journals. The Berkeley Electronic Press, which sees itself as a competitor to SSRN, has begun to publish very high quality work in its own electronic journals.

In my view, electronic journals provide an opportunity for law professors to claim our own scholarly domain. We need to look increasingly to peer review in legal scholarship, and electronic journals lower the barriers to entry. As we start our own peer-reviewed journals, we should maintain two advantages of the current system. First, our new journals need to be fast. Law review publications typically move at a very high speed compared with peer-reviewed publications in other disciplines, and law professors have come to expect that. One of the major sources of speed is the availability of multiple submissions. Placement of law review articles happens very quickly, and that is a good thing.

Second, we need to have a high volume of publications. We will develop our own "A" journals -- perhaps by specialty, such as a peer-reviewed "Corporate Law Journal" or "Constitutional Law Journal" -- but many journals must continue to publish because we find value in the diversity of views. We take seriously the marketplace of ideas, and Westlaw and Lexis allow us to find the best ideas, despite the high volume of legal publications.

The result of this change will be that many student-edited law reviews will close their doors. I expect that students will fill their time in more useful pursuits, perhaps publishing their own thoughts on law, as at Law & Entrepreneurship News.

Posted by Gordon at February 11, 2005 03:52 PM | Law Schools & Lawyering