To redress these issues, the author, relying on Eckhart Tolle’s The Power of Now, argues that we, all of us, must live in the now by surrendering our egoistic minds, the very source of fear, pain, or suffering—racism. Surrender places us at the center of our co-created experiences, and it allows us to reclaim our voices, true identity, and power. Without surrender, we will co-create continued suffering. Read more...
| [ 0 trackbacks ] | permalink | related link
Welcome to the inaugural edition of CONNtemplations, the interactive, online companion of Connecticut Law Review. The site initially features pieces from a number of authors on topics related to the relevance and future of legal periodicals. These pieces flow from the Commentary featured in Issue 1 of Volume 39 of the Law Review, which is available on Connecticut Law Review's website.
Please join the discussion by utilizing the site's blog-like format to submit comments on a piece which piques your interest, or on the topic generally. CONNtemplations promises to generate a lively, scholarly discussion, and we hope you choose to participate.
| [ 0 trackbacks ] | permalink | related link
Some revolutions begin with great fanfare; others start unnoticed. The rise of the blogger is perhaps the most heralded development in the world of legal education since the first rankings of U.S. News & World Report. The number of legal bloggers, as determined in the latest online census, stands at over 300.1 Symposia on the growth of legal blogs have been held, written about, and “live-blogged.”2 The focus on blogging within the law coincides with the larger cultural attention being paid to bloggers across the spectrum.
The new crop of law review online “companions,” in contrast, simply has been noted. When a law review launches a companion, the new site is mentioned in a blog post and may also be added to the blog roll.3 But there has been little attention paid to the overall phenomenon. In part, I believe this is because the role of the law review companion is still undefined and its future uncertain. These sites may simply become a repository for .pdfs of published articles, along with a light garnish of commentary that “raises questions.” On the other hand, these sites may develop into online presences of their own—formidable players in legal cyberspace.
In this Essay I lay out a structural analysis of the online companion. I begin with a brief descriptive discussion of the companion, including its design, content, and readership. I conclude with suggestions for such companions to consider in developing their approach for the future.
The online companion is a very recent phenomenon, dating back less than two years. Almost all law reviews now have web sites, whether they be independent or part of the law school’s collection of sites. But a law review web site simply lists contact information, methods for submissions, tables of contents, mastheads, and sometimes synopses or full-length e-versions of works published in the print version. Such sites contain no independent content and are simply designed to facilitate different types of interaction with the journal itself.
On October 18, 2005, the Yale Law Journal launched The Pocket Part, an online companion to its print journal.4 In its news release, the Journal stated that its purpose in creating The Pocket Part was to “bring the best of the print Journal’s content to the web and create an interactive forum for debate and discussion under the banner of the academy’s most respected home for legal scholarship.”5 The Pocket Part’s primary content would initially be short responses to articles in the print journal. It later added a new set of original content—short essays written with an eye towards cyberspace style and substance. The Pocket Part has its own website6 which highlights current articles and provides a subject-matter archive.7
The Pocket Part established the model for other online companions to follow. Although the number of companions will certainly grow, as of this writing there were eight (not including CONNtemplations):
Environmental Law Online (Lewis & Clark Law School)8
First Impressions (Michigan Law Review)10
The Pocket Part (Yale Law Journal)15
Although these companions generally share features with The Pocket Part, there are some important differences. Almost all of them have electronic versions of articles from the print journal along with short responses published only on the companion site.16 Some of the sites also include original content. For example, PENNumbra hosts online debates between two or more professors that include an opening statement, a rebuttal, and closing statements by each side.17 First Impressions is unique in that it consists only of responses to a particular symposium topic; the topics chosen generally relate to a recent change in the law.18
As First Impressions indicates, an online companion need not merely be a place for electronic versions of print articles together with short response pieces. Indeed, these “companion” sites do not have a monopoly on law journal web presence. For example, the New York University Journal of Law & Liberty has hosted a series of online symposia on its “blog.”19 The Hofstra Law Review has started an “Ideas” section consisting of five to ten-page essays, published both in print and on the web.20 However, I wish to focus exclusively on the online law review “companion” since it can be categorized based on the simple grounds of nomenclature. Why have these law reviews all created websites called “companions,” in a relatively short burst of activity?
The companions themselves discuss several goals as the motivating factors behind their creation. First, several cite to the need to be more current. Given the lag time between submission of a law review article and publication, a scholarly work in a print law review will not appear until months after its initial creation.21 One benefit of online media is the near-instantaneous publication such media afford. Second, the companion offers the opportunity to add additional content without taking up additional print-journal space. The cost of printed law review pages renders additional published content quite expensive.22 An online companion site can offer additional content without taking up space in the journal proper. Finally, some of the sites specifically mention the rise of blogs as a motivating factor behind the online companion. For example, First Impressions states that its purpose is “to fill the gap between the blogosphere and the traditional law review article.”23 Given the extensive number of law professor blogs, as well as the growth of practitioner blogs, the online companion offers a site with which bloggers can interact in a dynamic fashion.
Timeliness, cyberspace, and the blogosphere are the influences, but they dictate very little about the form or content on the companion. Why then is there such similarity, at least to this point? Almost all online companions have an “article-and-response” section. Stand-alone online content is, to this point, fairly sparse. These patterns are completely understandable. The companion is intended to be an add-on to the parent law review, not a font of new material. The title Pocket Part is revealing, as it “refers to the pockets attached to the back covers of legal publications that hold updates to, and commentaries on, those texts.”24 The companion is intended to derive its substance from the review itself. Response essays are not only quick to write—they also draw additional attention to the original article. It is no surprise that companions have used the article-and-response format for their primary content.
Why not simply include the responses in the print journal? Space is one answer; the responses would take up additional and precious room. However, the typically brief responses would not necessarily take up that many printed pages. Instead, I believe that companions are primarily efforts to draw attention to the review from online players such as bloggers, media, and other online institutions.25 The article-and-response format has several factors that make it more attractive to the online crowd. First, the articles themselves are now online and available. Second, the responses provide easier “entry” into the article by providing a brief synopsis and highlighting areas of controversy. Third, the responses provide some degree of conflict—a necessary component in creating dramatic interest. Finally, several of the companion sites allow comments from readers. The traditional print medium does not afford readers the opportunity to participate directly and immediately in the online conversation.
Figure 1 represents an illustration of this model.26 The online companion draws its primary content from the traditional print review, and it draws its primary readership from blogs, the media, and other online institutions. However, as I note in the diagram, it is possible that the model is more dynamic than that. Because the companions rely on bloggers and other online players to drive their audience, it makes sense for the reviews to reach out to those players for content as well. Many of those providing responses or other original content to these companions have law-related blogs—including many of the writers in this inaugural edition of CONNtemplations.27 In addition, interest in the print content should ultimately drive readers to the online edition. A short responsive piece will often be a useful interpretive aid in reading an article, and savvy readers will know that the companion is a place to look for such insights. Thus, the more dynamic model involves interactions between the review, the companion, and online institutions that are more complicated than one might initially expect.
Like blogging, I believe the online companion will not be a long-term equilibrium state. There is so much inherent flexibility in the online experience that the online companions will continue to experiment and develop as time moves forward. However, there is a value to continuity, or at least to predictability of content. One of the great values of the law review is its stability: its substance has been cite-checked; its content will remain available in libraries and online; and it will follow a particular convention in style and structure that makes the information more accessible to those familiar with its form. This stability is important. Continual experimentation imposes information costs. Deviation too far from the form could cause confusion and may drive readers away.
Online companions have the capacity to develop into a formidable online presence. They carry the name of a law review—and judging by the thousands of submissions, authors want to publish in law reviews. At the same time, they have much greater flexibility than the print journal when it comes to form and even substance. The online companion could publish a variety of different content types all under the same website and institutional supervision.
However, the online companion also has several weaknesses. Publishing in the companion is not nearly as prestigious as publishing in the print journal. Response articles are useful and can be provocative, but they are somewhat limited in form and audience. Although law review staff could publish content from their own members, such content is time-consuming and would not offer as much prestige as publishing a note in the traditional review. And unlike blogs, online companions in their current configuration are unlikely to draw a community of readers on their own. Blogs retain a core audience because of their narrower focus and their frequent (generally daily) updates with fresh content. Online companions are updated much less often and have “thicker” content requiring more time and interest to digest. Perhaps some professors will take the time to check out each companion site on a regular basis. But in the main, online companions will need other online players to drive the audience to their sites.
With these strengths and weaknesses in mind, the following are some suggestions for the near future of online companions.
Develop the “companion essay”—original content that combines certification with snappiness. Although it may sound like a strange notion, I believe there is room for a new form of scholarly writing that combines traditional review values with the new world of the legal blogosphere. One might call it the “companion essay.” It is a short piece designed for a legal audience that presents one opinion, one narrative, or one bit of empirical investigation quickly and succinctly. It is accessible without being facile. It is shorter than a traditional essay, but more sophisticated than an op-ed and more scholarly than a blog post.
The companion essay would fit nicely within the current constellation of legal writing. Some blog posts come close to what the “companion essay” achieves. However, blog posts generally have a short shelf life, and they are not constructed with the care that is put into a companion essay. Blog posts are written by individuals and are generally not run through any formal editing process. A companion essay would give bloggers the opportunity to turn a particularly thoughtful or important post into something more—something that will receive more care in the editing and more attention once it has come out. It would be a way for bloggers to differentiate particularly thoughtful or important content from the ongoing accumulation of blog postings.
The companion essay would also be a different animal than the op-ed piece, as it would generally be a bit longer and aimed at a narrower audience. It would be an op-ed for the legal world—or more specifically, the world of legal scholarship. That is not to say that only professors would write such pieces. In fact, as some online companion editors have expressed, such essays offer the opportunity for practitioners and other legal professionals to participate in the world of legal scholarship. But such pieces would be more sophisticated than a traditional op-ed, as the audience would be more sophisticated. Instead of rounding out the legal edges in the piece, the companion essay could focus on the edges themselves and highlight complicated issues for discussion amongst experts.
The companion essay is not a new idea; in fact, some of the most popular content from online companions has been these “tweeners.”28 But developing this format more explicitly and more directly would help the new format take hold. The companion essay would allow for more substantive discussions than most blogging allows and would give the author the imprimatur that would get more attention than a simple blog post. And if the submission and editing process were handled correctly, these articles would be much more timely and accessible than most law review articles.29 They would be a way for legal scholars to disseminate their ideas more quickly and to a broader audience.30 And it might also be a way for practitioners, judges, government officials, and business leaders to get involved in the conversation with scholars and students. The trickiest part would be sorting through to get the best and most appropriate content. But if the online companions clearly indicate the type of format they are looking for, the content will surely follow.31
Make the companion’s content available and searchable. Although some have argued that online companion content should also be included in the journal’s print edition,32 the cost of journal pages makes online publishing a more attractive alternative. However, excluding companion content from the print edition does not mean that the content should be excluded from the Westlaw and Lexis/Nexis online databases. These databases remain the primary source for online content searches. If the content is not there, many legal readers will not find it. Thus far, it seems that reviews are doing this, but it is important to keep on this course. In addition, companion editors should take steps to ensure that their content is searchable as well as ranked highly by internet search engines. Perhaps a “Google Law Search” or even “Google Law Review Search” may be in the future. Until then, companion sites may need to configure their content so that it is searchable by the relevant search tools available on the web.
Reach out to the broader online community. Online companions were created in part to provide a way for law reviews to interact with the legal blogosphere. Companions have a symbiotic relationship with legal bloggers, as bloggers route readers to the companions’ content and, in turn, bloggers have often provided that content. The relationship between companions and bloggers is critical. Without blogs, the online companions would have a much more difficult time getting out word of mouth on the content they provide. At this point, online companions have not developed enough of a unique readership to stand on their own.
However, editors of the online companions would be short-sighted to end their horizon at the law professor blogosphere. Companions should cultivate other institutional players on the web that also have an interest in their content. Practitioners are one example. The “companion essay” is more accessible for practitioners, and online companion sites could solicit essays that would show how the print review’s content is relevant outside the academy walls. Along with practicing lawyers, however, online companions could also court judges, government officials, non-profit advocacy groups, and others who work in the law. Drawing these folks into the conversation might be a way to bridge the “gap” between the law reviews and the rest of the legal world. But online companions cannot simply hang out their shingle and wait for the world to arrive. These relationships must be pursued actively and creatively. Solicitations are a place to start. But reviews should endeavor to establish lasting relationships with other institutional players—relationships that extend beyond this year’s masthead. Professors at the home institution may prove instrumental in making some of these connections. However, student editors should also consider establishing some permanent ways for the review to interact with various online constituencies. As just one example, an online companion could enlist the Federalist Society and the American Constitution Society in an annual online debate/symposium on the highlights from the year’s Supreme Court term.
In closing, I would like to thank the inaugural editors of CONNtemplations for the opportunity to participate in this symposium. I applaud them for taking the leap into this new and uncertain world of the online law review. Online law review companions may be the start of a new revolution in legal scholarship – or they may not. It is hard to predict what the online legal world will look like in two years, let alone ten. But I hope that law review editors realize that they are not in this alone. There are many institutional resources to draw on, at their home institution and far beyond. By working with others in this new world of accessibility and collaboration, law reviews will find that not only is their influence magnified manifold, but they have also brought a whole new level of depth and deliberation to the ongoing legal discourse.
;)
| [ 0 trackbacks ] | permalink | related link
When Judge John Noonan wrote about law reviews in the Stanford Law Review back in 1995, he likened them to cathedrals.1 Just as every self-respecting medieval town had one, every self-respecting law school must have one. Schools that aspire to high rankings need more than one, actually. I might use a different analogy, more closely related to dissemination of written knowledge: every self-respecting 19th century town needed a newspaper—sometimes a lot of them. And just as we look back to newspapers and other literary output to gauge something about the culture of the 19th century, we can judge a school by its law review. In focusing on this theme (of the connections between law review quality and law school ranking), we can help improve legal scholarship and perhaps legal education as well.
I am honored to be present at the origin of CONNtemplations, this new form of publication by the Connecticut Law Review, and to be part of such an important conversation on the relationship between law reviews, citations, and rankings with two people whose work I much respect, John Doyle and Ronen Perry.2 For those topics are all central to a law school’s missions. Law schools seek to educate their students, push back the frontiers of legal knowledge, and also promote their reputations. I hope that in the mission of promoting their law reviews, law schools will both contribute to their students’ education and promote legal scholarship. When they do the first two well, they deserve to have a good reputation. This may be one of those instances in which doing the right thing also produces a private good.
My work to date, most of which has appeared in the fall 2006 issue of the Connecticut Law Review, has been more modest. It looks to the correlation between citations to law reviews and the ranking of their parent institutions. This all relies on two sources of data. The first is John Doyle’s significant and time-consuming research on citations. His research, which is reported in detail at his extraordinarily helpful website,3 employs the Westlaw jlr (journals and law reviews) and allcases databases to examine how frequently each law review is cited over the past eight years by both journals and courts.4 The second source is the U.S. News rankings of law schools. I focus in particular on the peer assessment scores, which U.S. News compiles by surveying a number of people at each law school (the dean, academic dean, most recently tenured faculty, and chair of the hiring committee).5 The correlations are close. For instance, considering the U.S. News top 50 schools, there is a .88 correlation between the U.S. News peer assessment scores and the citations by journals to those schools’ main law reviews.6 I’m not always sure that the U.S. News peer assessments measure what we should care about. And I have skepticism about the efficacy of using citations to a law review as a measure of law school quality. But whatever the problems with either of those measures, they are closely related. They are also closely related to other measures of quality like median LSAT score. Together these measures may not mean much, but they are at least related to one another. If they are specious, they are wrong together.
Table 1 updates the data in my initial article, using the 2008 U.S. News data (released in March 2007) and Doyle’s data for 1999–2006. It provides the correlations for 175 schools between a number of student characteristics (LSAT 25th percentile, LSAT midpoint—the mean of the 25th and 75th percentile, and LSAT 75th percentile), peer assessment and lawyer/judge assessment scores, and citations to the schools’ main law journals by other journals, by cases, and by impact (citations in other journals divided by the number of pieces published in each cited journal). There is a high correlation between peer assessment and journal citations (.90) and peer assessment and impact (.91). Table 2 presents the data for the top 50 U.S. News schools. Peer assessment correlates with journal citations (.89) and impact (.87) at similar levels. If Harvard Law School, which is an outlier (its law review is by far the most-cited), is excluded the correlation between peer and law review citations increases slightly to .91.
;)
;)
There are continuing agreements on journal citations (though we may quite legitimately ask what journal citations mean) and peer judgements. They correlate at remarkable degrees over time. And journal citations correlate more highly with peer assessments than with any other data studied here. Whether that supports the relevance of both peer assessments and journal citations is unclear.
Ronen Perry is skeptical of the inferences we might draw from the high correlations in “Correlation and Causality.”7 One of Perry’s key points is the observation that a correlation between citations to law journals and peer assessment scores does not prove causation.8 Of course this is correct. My primary interest in citations is in the utility of citations to a journal as a gauge of the parent institution’s quality.9 In a concluding section I discussed a little of the meaning of those connections, where I again emphasized the modest and limited inferences that should be drawn from the data. I urged schools to pay attention to their law journals. I then speculated that a good journal might help in some way improve a school’s reputation:
The findings suggest that law reviews are schools’ ambassadors to the rest of the legal academy. Much of what people at other schools know about a school’s academic orientation may come from the articles and notes published in the school’s law journals. Thus, those schools seeking to advance in reputation may want to pay attention to their law reviews. Of course, correlations do not prove causation. Obviously, just because a law review receives increased citation will not necessarily result in an increase in its school’s rankings. Nor does an increase in a school’s ranking necessarily led to increased citations. Each probably influences the other; as reputation increases, law reviews are able to have a greater choice of articles. And as faculty see articles cited more frequently, they may have increasing respect for the schools associated with them. The arrows of influence probably point both ways. So schools on the move may want to pay increasing attention to their reviews.10
I suggested that if you want to know where a law school is headed, you should look to its law journal.11 Perry uses that suggestion to ask: do we see evidence of law reviews serving as leading indicators of schools that are rising or falling. His key point here is that there we have not seen convergence between law review citations and law school reputation over time.12 Here he turns in part to the longitudinal data on John Doyle’s website. In a separate article, I, too, observe that there is little convergence over the limited time represented by Doyle’s data (2002–2005).13 Given the static nature of law school reputation assessments, that window of time is too small to see the kinds of changes in reputation that I would predict might correlate with variations in law review quality. Again, I’m thinking that law reviews are a measure of the quality of their parent institutions.
The data do not point up a wholesale convergence over a short compass of time between citations in other journals and peer assessment scores. There are, however, some suggestive cases here of well-performing law reviews signaling the high quality of their parent institutions. Let me take just several. Fordham Law Review is ranked in the stratosphere—it’s in the top 10 in citations. Part of their secret is that they publish a lot; another part is that it’s really good. That seems to suggest a vibrant intellectual community; indeed, even though the Fordham Law Review has fallen slightly (from 7 to 9.5), its law school ranking has improved. And if the law review is an indicator (and I think it is) of the quality of the school, Fordham Law School is still underrated. I think of three other schools that have consistently produced terrific law reviews in recent years: Cardozo, Chicago-Kent, and DePaul. In each case the law journals are performing quite well (they are ranked 26, 28, and 41, while their schools are ranked in the 2007 U.S. News ranking 53, 60, and 80 respectively). I think the reviews are indicative of the exciting intellectual cultures of those schools. And one might also refer to the Albany Law Review, Hofstra Law Review, Houston Law Review, Marquettte Law Review, South Texas Law Review, and William Mitchell Law Review, which all have citation ranks substantially ahead of their parent institutions’ U.S. News peer assessment ranks. Those reviews testify to the exciting intellectual atmosphere at each of those schools. I continue to believe the law reviews may be a good gauge of what’s going on at those schools. And the fact that there has not yet been convergence of law review citations and peer assessments may say more about the static nature of reputations than about the weakness of law review citations as a barometer of quality.
Perry has also explored the relevance of student credentials (as measured by the 75th percentile of the LSAT) to law review citations.14 He points out that law review citations correlate highly with student quality (and he also explores the polynomial relationship between LSAT scores and citations). It is worth observing in this context that law review citations correlate more highly with peer assessment scores. Partial correlations indicate that peer assessment accounts for most of the predicted relationship with journal citations, and LSAT midpoint makes little independent contribution.15 Another way of approaching this is to run a multiple correlation with journal citations using both peer assessment and LSAT midpoint as independent variables. Again, LSAT midpoint contributes little beyond journal citations.16
So we see a connection between law review citations and law school rankings. One implication I suggested in the main article is that perhaps we should use citations to a school’s main law review as a measure of the quality of schools, particularly those outside of the top 50—the ones for whom we are least likely to have adequate peer assessment measures of quality. I think that looking to the quality (which in this case we measure by citations) of each school’s law review might result in a good gauge of the law school’s quality. And those numbers may be more responsive to changes in quality at a law school than the notoriously static (and perhaps prejudiced) peer assessments.
I have begun looking a little more recently at the peer assessment scores. We know through William Henderson’s work about how notoriously static those numbers are.17 And in some instances, I think them quite unfair. Ted Seto’s recent work reverse-engineering the U.S. News data, for instance, looked to the peer assessment scores of institutions. Together the peer assessment and lawyer judge scores, in his words, “given an aggregate weight of 40%, really matter.”18 Seto further compares peer assessment scores with each school’s LSAT scores. While in most instances there is a close correlation, in some cases there are dramatic differences. All of this points up the (apparently) pre-judged way that raters fill out the survey.19 And in the search of another measure that is responsive to changes in academic quality, as well as a decent indicator of the intellectual orientation of a law school, I think that citations to a law school’s review may be helpful.
The movement in the historical profession known as the “history of the book” project may give us some guidance here. The “history of the book” project places books at the center of historical analysis. It studies all sorts of phenomena around the production and dissemination of books to make assessments of the surrounding culture. Historians ask questions like who was the audience for books, who read them, what purposes did books serve? Because of the rather precise ways in which we can trace the citation of law books, legal historians have something particularly important to contribute to this project.20 But the story of this exciting, even thrilling project is best reserved to another time.21 What I’m interested in right now is the way that we can employ an insight from the history of the book: if you want to gauge the culture of an institution, use data produced by it. As applied in this case, that means that if you want to know about a law school, you should examine its output (its law reviews and the scholarship its faculty produces).
The example that I like to start with, because it relates to my school, is the Alabama Law Review in the post-Brown years. The Review published an article by Alabama professor Jay Murphy that argued against the constitutionality of a plan then in circulation in the legislature to shut down the public schools.22 The article was, according to local lore, important in blocking the plan. Though outsiders would not know this—and perhaps few others than legal historians would care—the Alabama Law Review’s progressive stance reflected the attitudes at the law school. To take another of the many examples, in 1921 the Yale Law Journal published an article arguing that the Fugitive Slave Act of 1850 was constitutional.23 The Act—one of the most vilified ever passed by Congress—was believed unconstitutional by many at the time and it had been repealed for decades by 1921. The article reflects attitudes in the academy in the 1920s towards the Civil War and the issues of Jim Crow. In short, if you want to know something about what people think, read their literary output.24 Of course, drawing inferences about a law school from its law review is somewhat different (and more attenuated) than drawing inferences from its faculty’s output. The correlation between a school’s intellectual culture and law review output is not as perfect as, say, judges’ ideas and the opinions they write,25 or maybe even the correlation between literary addresses and a school’s culture.26
Given the ways that reviews can reflect the intellectual culture of a school and can serve as ambassadors to the legal community, I hope that schools will pay increasing attention to their reviews. I suspect that one effect of a renewed focus on the connections between a law review’s quality and the quality of its parent institution will be that schools pay increased attention to their reviews.
I’d like to focus now on two implications of correlations between law review quality and law school quality: the importance of a school’s wealth in its ability to produce law reviews and the implications of the close connection between law reviews and law school quality for the future of legal scholarship.
Law Reviews are part of the educational mission and part of the promoting of the school, so law schools are willing to spend money on them. At the University of Alabama, where I have some sense of the numbers, we publish five issues a year at a cost of approximately $7000 per issue or approximately $35,000 per year. Those figures include only the cost of printing and mailing each issue; they exclude the cost of a full-time secretary, as well as the costs of office space, office supplies, mailing (other than that of the issue to subscribers), and other miscellaneous expenses related to the educational process. Of course, in Tom Sawyer fashion, we get labor from students for free.27 That means that legal scholarship does not have the same constraints as scholarship in many other disciplines. That is, the subsidy—what is called a subvention in academic publishing terms—is provided by the publisher.
The fact that law schools are willing to underwrite the cost of publication distinguishes reviews from much other scholarship these days. Rising publication costs have frustrated library budgets and scholars; they have led to a crisis in many arts and sciences fields, where tenure often depends on publishing a monograph (book), but publication costs have risen (and library budgets have fallen) so much that many scholars with important, new, good work have a hard time getting their monographs published. Law reviews, which are run in part to promote the schools themselves and in part to provide training to law students, help in promulgating scholarship. And because of the educational and promotional roles they serve, law schools are willing to underwrite the cost of law journals. Some subscriptions are still quite expensive; an institutional subscription to the Harvard Law Review is $200/year ($95/year for non-profit institutions, as John Doyle points out). But through the generosity (and self-interest) of law schools, we avoid the absurd costs associated with journals in other academic fields. The editors of the mathematics journal Topology, for example, resigned over the subscription costs, which are now more than $1600 per year!
Economics remain important for legal publishing, however, particularly for books. Price of books is one critical constraint, because if you want a book to get into the hands of students, it has to be affordable (especially if it is not the primary casebook). At the University of Alabama and I suspect at many other campuses, the administration requests that professors give strong consideration to the costs of books assigned to students. And that is just as it should be. Moreover, in these days of drastically reduced library budgets and of shrinking subsidies from universities for their presses, the economics of publishing are really beginning to hurt opportunities for publishing scholarly monographs, I fear. The days of the major university libraries that try to purchase every serious scholarly book are waning. Some presses, like Oxford University Press and Cambridge University Press, can still expect to sell a few hundred copies of everything they publish, no matter how expensive. But you have to ask yourself, how many people are going to buy even a terrific book if it costs $190? $335? And even how many university libraries are going to buy it? It’s a serious problem.
Take the Oliver Wendell Holmes Devise History of the Supreme Court. It has that strange name because Holmes left money in his will to the United States government—and Frankfurter funneled it towards a multi-volume history of the Court. William Wiecek’s volume just came out this summer. The final volumes are about to come out. I’m eagerly awaiting the volumes by Morton Horwitz on the Warren Court and by Robert Post on the Taft Court. Now you may say: “wow, Holmes died in 1935. What’s going on; we’re still publishing books using money he left to the government in his will more than seventy years ago?” There’s a pretty interesting story, actually, which Sanford Levinson tells in brief compass in the Virginia Law Review.28
The Oliver Wendell Holmes Devise History volumes are expensive. G. Edward White’s volume on the Marshall Court cost about $90 when it came out in 1988. It’s out of print now, which is a huge shame. I used to assign it (when it was available for about $30 in paperback) to my legal history students. Then there’s the Oxford History of the Laws of England. Richard Helmholz’s volume in that series, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s is being praised to heaven.29 One very distinguished legal historian, whose judgment is rock solid, told me that he thinks it is one of the best volumes ever written in any field in legal history. Yet, it costs $335. So make sure to read it in your library, because it’s a must read and it will be hard to afford to read it any other way.
There are still some presses where costs are relatively unimportant. Those are presses where the university is underwriting them to help them get market share. The limits of the market do not apply in the same way at those presses. The University of Pennsylvania Press is one of those that, at least a few years ago, was spending more on production and publicity than they expected to get in return. Penn was willing to fund them because the university saw a major press as an important selling point for the university. (Sounds like law journals, doesn’t it?) In legal history, the area I know best, the University of Georgia Press, Northern Illinois University Press, and University Press of Kansas all produce books that are affordable. They are, perhaps, more interested in publishing than in the bottom line. But all of these are senses that I have acquired through looking at their lists and seeing good books, rather than speaking with anyone knowledgeable at any of those presses.
My sense is that Cambridge University Press continues to be one in which cost is, if not no object, certainly subordinate to the quality of the manuscript. One of the reasons I so respect Cambridge is that I think they will produce a book if it’s great, even if there is only a small market for it. It’s refreshing to see academic merit as the central (and perhaps only) consideration, however rare that may be these days. Some practical books in law still find significant sales, like Powell on Real Property and Sutherland’s Statutes and Statutory Construction. Some expensive practical volumes still make a profit. Perhaps that’s one of the lessons of this focus on economics: legal academics should be writing more on practical topics and less on esoteric ones. When I found out something about the economics of practitioner treatises a few years ago, I certainly thought seriously about changing my research agenda.
The long and short of it is that costs are rising; sales are falling; and while there are still some fields where there is enough interest to support excellent scholarship, I fear things are going from bad to worse. The importance of the bottom line continues to grow, as money becomes tighter everywhere. It never ceases to surprise me how small the audience for academic books is—even for academic books that get a huge amount of attention. There is still some room for popular works on history (or law). A couple of examples here. James Loewen’s Lies My Teacher Told Me, about the way that American history textbooks misrepresent American history.30 It’s a fabulously entertaining read. It sold more than one million copies. Michael Bellesiles’s Arming America was the center of much attention a few years ago; it won the prestigious Bancroft Prize and then had the prize taken away.31 Knopf, which published it, subsequently stopped selling it (though you can still get it for as little as $0.45 at Amazon). I’m not here to praise Bellesiles or to criticize him. I understand that it sold something around 18,000 copies. So even a book that gets a huge amount of attention (in its later period, much of it negative, of course), sold less than 20,000.
I think that those who write on U.S. legal history have an easier time than those who write on many other topics, because there still seems to be a sufficient interest among libraries to support books on reasonably broad topics in U.S. legal history. There’s a lesson for authors in this, I guess. Write on a topic of great public interest. Lawrence Kohl, whose The Politics of Individualism is a one of the finest works of history I have ever read, told me a joke about book topics: people read books about presidents, first ladies, and cats. (And I think we might add lawyers, too.) So if you want to sell some books, write about Mrs. Lincoln’s lawyer’s cat. Actually, if you want to sell some academic books, write a textbook, or one on the military history of the Civil War.
Dedi Felman, a senior editor at Simon and Schuster, has an important, revealing article in the Chronicle of Higher Education on what editors are looking for.32 One of her key points is that books are different from articles. They have bigger themes, they pull together more ideas, they usually have a larger audience and a longer life. A more extensive discussion of these issues appears in Susan Rabiner’s Thinking Like Your Editor—a book I highly recommend to those considering writing an academic book.33
So universities are providing less money and book sales are generating less. What’s next? How do book reviews fit into this rather grim picture? In ways you would not at first expect. Book reviews are not about selling books, unfortunately. Some years ago one of the syndics at Cambridge University Press told me that their research indicated that reviews of books in academic journals—and even prizes—had virtually no effect on sales. For those who are fortunate enough to have a review in the New York Times, that helps—but my sense (and limited experience) is that even a review in a major paper other than the Times (and maybe the Los Angeles Times) does little. And reviews in academic journals do virtually nothing in terms of sales. This, I suspect, is the reason that it is hard to squeeze review copies out of some presses: they know this secret as well.
Reviews in academic journals are about something else—something substantially more important than sales: the promulgation of ideas. Reviews are about distributing knowledge. After authors have collected every bit of information and squeezed every story they can out of their research, then put it together in a narrative, waded through interminable edits, and waited another year for the manuscript to appear, it’s the book review that reduces their life’s work to around 800 words.
I’ve enjoyed—and learned the most from—the critiques that engage with my thesis.34 I would much rather have someone seriously engage with my work and help improve it than give some polite (but ultimately dismissive) comment. Book reviewers may feel, with Ralph Ellison’s Invisible Man, that they were never so disliked as when they were honest. There are better (and poorer) ways to deliver a critique. But authors ought to appreciate a respectful and earnest engagement with ideas. Reviews, then, can serve the function of helping to get ideas into circulation, even as books are becoming less affordable. They provide a vehicle for talking to one another, which we do less and less in the academy.
So, where are we left? I think we’re going to see fewer books being published. There will be more pressure for universities to provide subventions to presses to help them put out books at a reasonable cost. Because law schools have money, their faculty may be able to weather this crises better than arts and science faculty. And I think that areas like American legal history have the potential for some more library sales than many other areas. Perhaps peer reviewed journals (which are facing the same kinds of problems detailed above of rising costs and fewer sales) and maybe law journals will take up some of the role that university presses have traditionally served. Some of the distribution of scholarship will take place electronically, through services like the Social Science Research Network (SSRN) and the Berkeley Electronic Press (Bepress).
Some of the specialized law journals help to foster and give voice to the communities from which they spring. A few years ago the Columbia Journal of Gender and Law focused a lengthy issue on the question of the place of feminist law journals. Felice Batlan’s history of the journals explained some of the roles they fill.35 Joanna Grossman explored the implications (she might say hazards) of rankings of journals (and where faculty publish) for publishing with feminist law journals.36 As Henry David Thoreau pointed out in the essay that is now popularly known as Civil Disobedience, we can be free of institutions, if we want to be. And the internet helps to liberate us as authors from institutions like law reviews. But it is not so easy for an entire society (in this case the legal profession) to move away from them.
Because of financial constraints, law review scholarship may take on increasing importance. Here I think that there are some key changes in the works that are improving legal scholarship. First, faculty are taking a dramatically increasing role in the running of journals—mostly behind the scenes. Even in the old days (the late 1980s) when I was an editor of the Columbia Law Review, we vetted articles with faculty. (Faculty intervention, rather than student foibles, may account for some of the idiosyncracies of what’s published in major law journals.) As faculty advisor at the Alabama Law Review I work closely with students in the selection of all articles and student notes. We have a modified peer review process, in which we ask faculty members with expertise in the article under consideration to review every article before we make an offer. And while I suspect that weak articles can still make it through that process (and we undoubtedly pass on highly deserving articles, in part because the peer review process slows us down and in part because students still make the first cut on articles), we have improved quality control. Moreover, I think that this peer review process may become a point of pride both for the journal and for our authors who publish in it. In addition, we have been the beneficiary of several excellent symposia held at the school and also by publishing articles by our distinguished lecturers. Moreover, every student note is written in conjunction with a faculty advisor. Some of the most rewarding teaching experiences I have had in the last six years have been working with students on their notes. Among my favorites are Amy Wilson’s on the jazz influence in property law;37 Kitty Rogers’s on integrating the city of the dead (that is, cemeteries);38 Leah Green’s on the Erie Canal in American legal thought;39 Elizabeth Bates’s on statutes of limitations for reclamation of artwork produced by slaves;40 Chad Bryan’s on the problems with the reparations movement;41 Chris Williams’s on an empirical study of smart growth;42 Fred Wright’s on the effect of New Deal residential finance and foreclosure policies on property law;43 Grace Long’s on constructive trust doctrine and the changes in equity jurisprudence;44 and Royal Dumas’s on Alabama judges’ rhetoric of race in the Progressive Era.45 Look for some really fine pieces in the near future on the integration of libraries in the immediate post-Brown years, an empirical study of wills in antebellum Alabama, and the intellectual origins of cost-benefit analysis in legal scholarship of the 1970s and 1980s.
It is heartening to see faculty who actually care about the work their law reviews publish. And that suggests that law reviews are adapting. When we think of institutions that have survived over the centuries—the Catholic Church, the common law, and universities—we see a couple of traits. First, conservatism in methods, balanced by an ability to adapt. And I think we see both of these traits in law reviews. They have been around for a long time; they are conservative (more or less) in the type of scholarship they publish. However, they are also have the ability to adapt. This blog is one illustration of that ability to adapt. But legal scholarship has been adapting for a long time. During our country’s Watergate crisis Charles Black wrote a short book on impeachment and then published it with Yale University in a very short compass of time. It was subsequently the center of attention during Watergate.46 When speed is absolutely necessary, university presses and law reviews may provide it. To take a more recent example, when my colleague Susan Hamill wrote an important empirical study about the Alabama property tax system, it was published in pre-print, pdf form on the internet, so that it could be distributed before the 2002 election.47 Hamill’s article was front-page news on the Wall Street Journal48 and named by the New York Times as one of the best ideas of 2003.49
Law reviews certainly have problems. Many, many of them. However, here I would like to focus on their virtues and talk about some of the reforms that are making reviews better. Increased faculty involvement is certainly one of them.
Extension of law reviews to the internet is another. Blogs are sometimes cited as a more flexible alternative to law reviews. And while I share others’ great skepticism of blogs as scholarship and most assuredly do not believe that those of us who spend our free time blogging deserve credit for it, blogs can help with speedy dissemination of ideas. They can also help build communities. The Connecticut Law Review’s on-line version illustrates the new directions. There are, of course, already a few other entrants. Even the staid Harvard Law Review has an on-line forum.50 There are The Yale Pocket Part,51 the University of Pennsylvania Law Review’s PENNumbra,52 and the Michigan Law Review’s First Impressions.53 The Michigan Law Review describes the goal of First Impressions in this way:
First Impressions, an online companion to the Review, features op-ed length articles by academics and practitioners in order to fill the gap between the blogosphere and the traditional law review article. This extension of our printed pages aims to provide a forum for quicker dissemination of the legal community’s first impressions of recent changes in the law.54
The Northwestern University Law Review’s Colloquy55 straddles electronic and print. Some of their pieces appear first in the Colloquy on the web, then appear in print form in the law review. And at the leading peer-reviewed journals, my sense is that a similar move is occurring. At the Law and History Review, for instance, we post pre-prints of the articles months before the hard copy appears.
Blogs help create a community. I often learn a lot from blogs; I get ideas for exams and for class discussion and learn about recent scholarship. I don’t think I’ve ever gotten an idea for scholarship from reading blogs, but that may suggest more about the esoteric nature of my own scholarship, which lies so far from the center of the legal academy. Or it may suggest something about the limitations of blogs in promoting scholarship. I think of blogs the same way I think of lunchtime conversations—they’re very entertaining; they’re fun; and they can be substantive, but I wouldn’t dare put one down on my resume and I don’t expect credit for them. Perhaps, like lunch, they are increasingly necessary to survival in the academic world, however. Michael Madison talks much about this in his provocative article, The Idea of the Law Review: Scholarship, Prestige, and Open Access, which appeared recently on the web and in the Lewis and Clark Law Review.56 Then, again, the end [of academic blogging] may be near.
Part of the advantage of law reviews’ entrance into the blogosphere is flexibility. But why post in CONNtemplations rather than, say, at PropertyProf Blog, where I’m a semi-permanent fixture? In part, to get an audience. (Well, I already have “work shopped” part of this at PropertyProf.) In part, though, the purpose of publishing here is to gain the imprimatur of the Connecticut Law Review. Part of what law reviews do is lend their good name (and their school’s good name) to the scholarship they publish. All of which points up why law schools ought to take a stronger role in the running of reviews.
Where is this all leading in legal scholarship? There’s great diversification in legal scholarship. Scholars are writing articles on pretty narrow topics. We are now in need of field theories. There is a splintering of legal scholarship; everyone has a voice. And we’re even seeing this in publishing of textbooks. Where once there were a few leading casebooks, now we’re seeing many more, specialized texts. In the antebellum period much of what lawyers needed to know about law (or knew about law anyway) was contained in James Kent’s four-volume Commentaries on American Law.57 I have been struck in reading antebellum property cases how frequently the same few cases appeared in discussion. They are often cases that are cited in Kent’s Commentaries.
It was also possible to think of doing without books (or doing with a very small number of them) when there were so few and they were so expensive. Ralph Waldo Emerson, in speaking to the citizens of Concord on the Fugitive Slave Act of 1850, suggested that we don’t always have to cite law books. “No reasonable person,” he said, “needs a quotation from Blackstone to convince him that white cannot be legislated to be black.” Some of that may be attributed to the general disdain for law engendered by that act. One might recall that Henry David Thoreau said of the rendition of Anthony Burns ordered by Justice Loring under the Act,
does any one think that justice or God awaits Mr. Loring’s decision? For him to sit there deciding still, when this question is already decided from eternity to eternity, and the unlettered slave himself and the multitude around have long since heard and assented to the decision, is simply to make himself ridiculous.58
Indeed, the law lost much of its majesty in the antebellum period. Print might often serve to disseminate legal knowledge and to unify and stabilize. It might be the vehicle for expansion and promulgation of empire. Yet, it might also be the vehicle for destabilizing law–through critiques of its unfairness. William Sampson stated during a trial of journeymen for organizing a union in New York in 1810, “Cicero wondered how two soothsayers could look each other in the face. I wonder how the two learned expounders of the common law opposed to us can do so without laughing.”59 And in the next decade he spoke and published widely on exactly that topic.
Or, going back another 130 years from Kent, to the turn of the 18th century, the first legal treatise written in British North America was a form book. In a few hundred manuscript pages, Francis Daniel Pastorius recorded most of what one needed to navigate colonial Pennsylvania’s legal system.60 It was easy to have a well-defined and narrow canon when there were relatively few books. Encyclopedias, like Francis Lieber’s Encyclopedia Americanae pulled together a mass of data. We were able to put the world into a few volumes, or as one charming volume about an eighteenth century encyclopedia terms it, “The World In A Box.”61 Even in the antebellum era, the intellectual universe was rapidly expanding. My colleague Paul Pruitt and I are editing the University of Alabama’s two antebellum library catalogs, which give us another sense of the intellectual world of antebellum Tuscaloosa. The catalogs mark the boundaries of the knowledge they had access to; the field is broad, indeed. Though in those days, the University library’s 5000 volumes contained much of the knowledge available in the United States.62 By plotting changes between the two catalogs and by comparison with other library catalogs, like the Brown University’s, we hope to plot an impressionist picture of the intellectual landscape. The edited volume is tentatively titled Burned Books—a reference to the tragic destruction of the library in the final month of the Civil War.
Today we can not even begin to think of law as contained in a few volumes. Now, instead of having a compact shelf of law books, we’re simply overwhelmed with commentary. And perhaps what we need, in addition to the continued production of scholarship, are some additional ways of categorizing and making the data accessible. We need field theories, which pull together the strands of legal scholarship and connect it to practice, as well as to each other. We need to synthesize the disparate pieces of knowledge. Perhaps blogs can help us to see the connections between scholarship. Though there’s also a role for traditional law review articles to undertake that serious, difficult task of synthesizing. We know a lot; we have lots of insight from the social sciences and humanities. One direction that I hope we’ll go is increased connections between the legal academy’s insights and the legal profession. Along those lines, I particularly enjoy articles that link theory with practice, like Mari Matsuda’s Looking to the Bottom, in which she proposes ways of critiquing and rebuilding the present system.63 Bill Henderson and Andrew Morris’s work on legal education provides a way of reconstructing what we are doing.64 Lawrence Zelenak provides an assessment of critical tax scholarship—scholarship that looks at the gender and racial implications of the tax system—and then suggests what modest changes might be made.65 Emily Houh rethinks sex discrimination and contract law and suggests modest changes, which might actually have some effect.66 The examples go on and on, of scholars providing scholarship that might remake our world. We continue to need to synthesize and to bring those ideas together. Law reviews can help us with that process. We need faculty working with students, supported by the administration, to accomplish this.
There’s much work to be done....