Thursday, March 19, 2009

Law Reviews and Legal Scholarship in the Age of Cyberspace

It would have been hard to imagine just a decade ago: major U.S. newspapers are going out of business. (Quixotically enough, I recently renewed my subscription to hard copies of the New York Times.) The same fate has not yet befallen U.S. law reviews.

But most American law reviews are not, and perhaps never were, subject to normal market forces; most of these student-edited law journals were and are subsidized by law schools.

Subscriptions to major law reviews have fallen dramatically in the last couple of decades. Is the demise of student-edited law reviews at hand?

Well, even if we ignore the nebulousness of the notion of "demise," it's not yet clear that Armageddon for law reviews is at hand. This is because law schools have non-economic reasons for wanting to keep law journals alive.

It may be true -- though demonstrating this would be tricky -- that most "major" American student-edited law reviews are kept alive in significant part because "major" law schools want to maintain some control over access to the halls of legal academe and over the kinds of scholarship that secure access to U.S. legal academe. But there are signs that the gatekeeper role of these law reviews is on the wane.

That's probably a good thing.

The market, she is tricky, fickle, and often downright stupid. But the market is also often relatively democratic and open to innovation.

In the age of cyberspace budding legal scholars have some serious alternatives to student-edited "major" law reviews.

It is true that law schools will very probably still use "major" hard-copy student-edited law reviews as gatekeepers. But cyberspace and other developments are gradually creating alternatives to "major" law schools themselves. As California's Bernard Witkin demonstrated decades ago, such alternatives always existed. But in the age of cyberspace the prospects for market-oriented legal scholarship have grown and multiplied.


I confess that personal history motivates this post. Decades ago, I swore not to submit my stuff to "major" American law reviews. I departed from my populist anti-establishmentarian line generally only when a law journal invited me to submit a paper. Otherwise I have published in other venues. I took this anti-establishmentarian tack when, shortly after graduation, I tried to publish a study of Hegel's theory of the "duty to die for the state." I submitted my paper to about five "major" law reviews. They rejected my paper (but, in fairness to them, usually only by close votes).

I later realized I was literally ahead of my time: Hegel was not yet in vogue in American law schools. Had I tried publishing the paper a couple of decades later, I would have met with success. But by then I had completely repudiated Hegel and I had little taste for talking about things Hegelian. (The rejected paper was an excellent piece of work. [I concluded that Hegel's argument for the alleged duty to die for the state fails.])
This experience led me to swear off law reviews. I instead worked at redoing part of Wigmore's treatise.

Of course, by swearing off law reviews (for the most part) I figuratively shot myself in my figurative academic foot. But I don't regret what I did. I think my scholarship was more interesting as a result. I discovered, to my pleasure if not entirely to my surprise, that there are lots of inquisitive, creative, serious, and thoughtful people out there in the legal profession and in the wider world. Conclusion: publishing for the "market" and for the "world" has its compensations, very substantial compensations.

Postscript: Bernard Witkin's model of legal scholarship is not the model to which I aspire. But that's another question. My point here is that Witkin succeeded in doing legal scholarship on his own.

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