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Monday, April 28, 2008

Is the Mich LR Books Issue in Decline? No.

Brian Leiter and Stephen Griffin appear to think it is. Methinks they doth protest too much. Griffin's complaint centers on the fact that in recent years a cluster of well-known con law theory books have not been reviewed:

Consider some of the better contheory books to be published over the last few years:

Jack Balkin, What Roe v. Wade Should Have Said (2005)

Sotirios Barber and James E. Fleming, Constitutional Interpretation: The Basic Questions (2007)

James E. Fleming, Securing Constitutional Democracy (2006)

Mark Graber, Dred Scott and the Problem of Constitutional Evil (2006)

Sanford Levinson, Our Undemocratic Constitution (2006)

Walter F. Murphy, Constitutional Democracy (2006)

Keith E. Whittington, Political Foundations of Judicial Supremacy (2007)

And yes I could go on from here and no I'm not trying just to list contributors to this blog! But it's really a shame. Perhaps the "Books" issue had to cut back on the number of pages, etc., but dissing contheory does not seem to me to be a good way to carry it out.  And what books related to conlaw do they choose to review in the latest (April 2008) issue? Hint: not Jack Goldsmith's The Terror Presidency (2007) or Charlie Savage's Takeover: The Return of the Imperial Presidency (2007). No, the last two issues have featured scholars with the last name "Posner" and the current issue leads with "Yoo." A sad state of affairs.

It's not quite evident to me why, on the merits, Posner's name would be prima facie evidence of decline. He is by most accounts the most influential judge in the country. The complaint seems misplaced further because, for the most part, the way to get into the Books Issue is to pitch a review as Kevin Heller wrote in his comment; if the law professor market's not thrusting reviews into these editors' hands, it doesn't seem quite right for Griffin or Leiter to chastise them or for the student editors to go out and hunt for reviews of the books (that Balkinization authors have written), since that's often just a recipe for untutored cronyism. And in some cases, it appears from Sandy Levinson's comment on Balkinization, the student editors *are* asking for reviews of certain books and it's hard for them to get the targeted authors to agree to write the particular review. 

Is there any reason for real worry? It's not as if the current issue (April 2008) is filled with slouches either in terms of the books reviewed or the reviewers of these books. Last, some of the books that Griffin mentions as "ought to be reviewed" may still be eligible for review in the 2009 issue. The MLR editors state pretty clearly that "the 2009 Survey, which will be published in April 2009, will include reviews of books published in 2009, 2008, and 2007."

The real issue, it seems to me, is with the supply and incentives for supply; some schools discount meaty review essays even though these days a review essay might be the same length as an article and make a more robust contribution to the literature too.

Posted by Dan Markel on April 28, 2008 at 09:13 AM in Life of Law Schools | Permalink

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I don't know about this supply-side story. You're tenured for much longer than you're untenured, and at some point you have enough of a portfolio that a lot less hangs on whether any individual piece you write is of a form that is most valued by your school. (And people write symposium pieces -- another "less valued" kind of scholarship -- all the time.) By contrast, I think the demand-side story is far more powerful. Taking the Michigan books issue as an example, I think its decline can be traced to the point at which it imposed a page limit that made it much harder to write a review essay. At that point, I'd hypothesize, authors who wanted to write such essays stopped wanting to place their reviews in Michigan. (I have some anecdotal evidence for the hypothesis, but nothing more.) And as for other top law reviews, some don't accept book reviews (which doesn't make sense to me), and a number of others require book-review authors to submit a full draft.

Posted by: Sam Bagenstos | Apr 28, 2008 10:06:12 AM

Agreed on the last couple of sentences, Sam -- see my post above. And I agree that the Michiganders ought to rethink their word limit policy, for many of the same reasons that I think law reviews should rethink their word limit policy for full articles.

Posted by: Paul Horwitz | Apr 28, 2008 10:40:50 AM

Sam, your skepticism is warranted. I should have clarified that my point has more force for juniors than AK's.
However, at schools where even tenured people have direct monetary rewards that go to the production of articles rather than reviews, the incentives might still skew toward one direction. At FSU, the amount of our summer compensation is tied to the authorship of a "substantial manuscript" that's been accepted for publication in the previous year. It's less clear to me whether a review essay alone would have satisfied that requirement for the incentive to be rewarded.

Posted by: Dan Markel | Apr 28, 2008 10:45:16 AM

8500 words isn't enough for a book review? If law faculty edited journals regularly (or served as peer reviewers as frequently as faculty in other disciplines), I'd predict the word limit would be half that. Think about the length of ordinary book reviews in the top journals in politics, economics, history, etc. I can see why a survey article of a few books might be longer, say, 8-12,000 words. But which journals outside of the law would ever publish anything longer than that? I thought that what was great about a book review is that you can get a fairly quick sense of the book, whether it's worth reading, and maybe some critical comments, rather than a law review article packaged as a review essay. Just some speculation on my part, but maybe journals would publish more book reviews if reviews were shorter.

Posted by: Micah | Apr 28, 2008 12:48:18 PM

I'm not sure I disagree with you, Micah, although I think the book review as a genre of legal academic writing has a different ratio of book-description-to-critical-commentary than book reviews in some other academic fields. I doubt that you're right that journals would publish more reviews if reviews were shorter; it depends on what the incentive structure is in the first place, and past a certain point I think both editors and authors in the legal academy are likely to think that shorter reviews are less prestigious and consequential. But that doesn't mean many reviews (and articles!) could stand to be shorter. I just don't like using word limits as a crude proxy for more meaningful qualitative decisions, which is, as I grok it, the function that word limits currently play on law reviews.

Posted by: Paul Horwitz | Apr 28, 2008 1:23:58 PM

For what it's worth, my review in the recent issue is nearly 12,000 words and the editors didn't say a word about its length.

Also, with regard to Micah's point, MLR's contributions are really review essays, not book reviews per se. I think there's a difference -- a review essay is more of a conversation with the author of the reviewed book than a "here's what's good, here's what's bad" analysis.

Posted by: Kevin Jon Heller | Apr 29, 2008 4:23:29 AM

I guess I'm struggling to see the problem. Is it that there isn't enough constitutional theory published in top law reviews? Hold on, I'm laughing too hard to see my screen.

--a tax guy

Posted by: BDG | Apr 29, 2008 9:44:51 AM

I like the joke, Brian, but I think there was actually a valid point that started this all off -- that a lot of decent work in the area is not done in articles, but in books, and there ought to be means of engaging these materials. As for Kevin's comment -- curse you. The editors the year I published, at least, were quite strict about the word limits. But I'm no Heller.

Posted by: Paul Horwitz | Apr 29, 2008 10:27:53 AM

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