Alfred L. Brophy
When
Judge John Noonan wrote about law reviews in the Stanford Law
Review back in 1995, he likened them to cathedrals.
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.
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,
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.
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).
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.
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.”
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.
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.
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.
I
suggested that if you want to know where a law school is headed, you
should look to its law journal.
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.
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).
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.
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.
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.
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.
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.”
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.
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.
But the story of this exciting, even thrilling project is best
reserved to another time.
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.
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.
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.
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,
or maybe even the correlation between literary addresses and a
school’s culture.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Joanna Grossman explored the implications (she might say hazards) of
rankings of journals (and where faculty publish) for publishing with
feminist law journals.
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;
Kitty Rogers’s on integrating the city of the dead (that is,
cemeteries);
Leah Green’s on the Erie Canal in American legal thought;
Elizabeth Bates’s on statutes of limitations for reclamation of
artwork produced by slaves;
Chad Bryan’s on the problems with the reparations movement;
Chris Williams’s on an empirical study of smart growth;
Fred Wright’s on the effect of New Deal residential finance and
foreclosure policies on property law;
Grace Long’s on constructive trust doctrine and the changes in
equity jurisprudence;
and Royal Dumas’s on Alabama judges’ rhetoric of race in
the Progressive Era.
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.
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.
Hamill’s article was front-page news on the Wall Street
Journal
and named by the New York Times as one of the best ideas of
2003.
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.
There are The Yale Pocket Part,
the University of Pennsylvania Law Review’s PENNumbra,
and the Michigan Law Review’s First Impressions.
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.
The
Northwestern
University Law Review’s
Colloquy
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.
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.
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.
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.”
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.
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.”
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.
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.
Bill Henderson and Andrew Morris’s work on legal education
provides a way of reconstructing what we are doing.
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.
Emily Houh rethinks sex discrimination and contract law and suggests
modest changes, which might actually have some effect.
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....
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