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Friday, July 06, 2012

Is the (Printed) Law Review a Flower that Should Bloom?

Over at the Atlantic, Walter Olson reprises the claim that law reviews are worthless. Among his reasons, he notes the ready availability of other outlets for law professors to share their views about matters of significance (and in this vein, he has in mind websites like TNR or the Atlantic or law blogs like Volokh or Balkinization or perhaps ahem...). My initial response: let a thousand flowers bloom. If, in addition to writing for law reviews or university presses, prawfs want to write on blogs and do opeds, they should do so. But if Olson's saying, we should get out of the long form scholarship game, I say a pox on his house. I don't think he's actually saying that, although he suggests it by tired references to Chief Roberts' views about Bulgaria and Kant.

Regardless of whether Olson denies the net value of long form scholarship, I think he is wrong to assume that "talented law profs" seek out short form options to present their ideas because that's the first best place to be.  I can't speak for others, let alone the class of talented law profs, but I suspect at least some of us hardly desire to go online to do short form writing as such. Rather, it's more a matter of resignation about where the eyeballs might be and what civilians' attention levels are. If 50,000 or 1 million people read the articles on my SSRN page, I would probably never care to write an oped about a legal issue, let alone a blog post. Indeed, I suspect the reason we care about the placement ladder is largely an assumption that if it places in a top journal, it will get read more (by the right demographic). But writing to get the argument right requires patience and diligence. Opeds don't reward that. At best, they're a preview or a trailer of the real thing.

And fyi, Walter, writing for the Atlantic and whatnot is not always easier too. Compared to blogposts, opeds or essays for general mags are more annoying because of the comparative lack of control or slowness of publication. For example, the Times accepted an oped I co-wrote more than a month ago, and we're still waiting to hear (even vaguely) when it will run! Most opinion journal editors act like tyrants because they know they can get away with it. (Not you of course ___, ___,  etc!) And compared to law reviews, which are admittedly slower to publication (and this has changed somewhat with the proliferation of online law review addenda/fora/pennumbra etc), opeds or mainstream essays are neither easy to place nor necessarily reasonable about editing. At bottom, I usually enjoy the experience of  writing for law reviews more than writing for popular press.  Not always, but enough to want to stay in the law review publication game. To the extent I write for the mainstream media, it's more because I think I have an obligation to those who fund my scholarship to try to get the ideas out into the mainstream rather than simply hope for citations within the law review or philosophy/political theory literature. Anyway, I might be an outlier, and maybe Olson's narrower point, that we'd be better off with only online scholarship venues, is true. But, fwiw, I am happily the kind of person who still enjoys looking through the pages of HLR, the Mich LR books issue, and most of the other journals in our faculty lounge.

In any event, Olson's essay focuses on a sideshow. The real problem in law scholarship is not where it appears or how long it is, but whether it is lockboxed. To my mind, every piece of legal scholarship produced should be available online either in final draft or penultimate draft. I actually think scholars have an ethical duty to make that happen, at least in the law context. But that's another blog post.

 

Posted by Dan Markel on July 6, 2012 at 11:10 AM in Article Spotlight, Blogging, Culture, Law Review Review, Life of Law Schools | Permalink

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Dan,

Nice post. Walter is, as you suggest, conflating two different points here. I think he's totally right that we should (and probably will) eventually get rid of the dead-tree format. I like flipping through the issues as much as the next guy, and I still enjoy feeling my published article in my hands. But when it comes down to it, I get nearly as much pleasure -- and basically all of the functionality -- without all the waste, from reading tables of contents and articles online. Other disciplines have well regarded online-only journals, and we could, too -- and probably will once the big law reviews take the leap.

But the format in which law reviews publish seems to me a completely different issue from whether we should do long-form "law review" scholarship. On that point I think you are totally right. And I agree with the point Walter attributes to Judge Posner that although there is a lot of dreck in law reviews we can't readily and precisely identify today which are the drecky pieces and which are the generative ones. The value of long-form scholarship at its best is that it provides a forum for much more detailed statements, exploration, and evaluation of ideas, both within a single article and as articles engage with each other. Blogs, op-eds, etc. are great but they don't do that as well.

Posted by: Sam Bagenstos | Jul 6, 2012 1:40:46 PM

I agree that long form scholarship should not be replaced by opeds, blogs, etc. I do however believe it is time to catch up with the masses and get these publications online, and (dare I say) in tablet and phone app formats. But if that happens, all mayhem might break loose and PrawfsBlawg might even roll out a "share" button so outstanding posts like yours can be shared on Twitter, Facebook and the like. But alas, I am a dreamer...

Posted by: Kendall Isaac | Jul 6, 2012 5:34:47 PM

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