Originally posted 2006-07-20 21:21:29. Republished by Blog Post Promoter
It’s been an open question for a while whether there’s much value in law reviews any more as sources of leading-edge, original or any other kind of legal thinking. Self-publishing, i.e., the Internet, is wounding them deeply. I used to publish articles, not to law reviews (my pieces are not long enough), but to practitioners’ journals. Now if I have big ideas, I’m likely merely to blog them.
Still and all, I always assumed the law reviews would remain a sort of gold standard for the better legal thinking. The presence of editorial control, citatation checking, and the prestige of the law school that stands behind the journal always seemed to me to guarantee that citation to prime law reviews would remain a distinct possibility for judges willing to think just a little bit outside the precedential box.
I recently came upon an interesting development, reported by Clayton Kramer, however, which may undermine the future of law reviews — or, as I argue below, may not:
[T]he Joyce Foundation did something unprecedented–they rented out a law review. Contrary to the standards of scholarly journals, they paid a bunch of anti-gun sorts to write papers for a special issue of Chicago-Kent Law Review, then paid tens of thousands of dollars to publish the issue and distribute it. Most contrary to scholarly practice, they invited only anti-gunners to participate.
Now, there’s nothing unlawful about this, but when a scholarly journal becomes effectively an infomercial for one perspective only, it should damage the credibility of the journal. They’ve done this not only with Chicago-Kent Law Review, but also with Fordham University Law Review. Now they seem to have added Stanford Law and Policy Review to the list of formerly scholarly journals that can be rented out by the issue.
(But see here, linked to by Kramer.) Two observations. One is that the law reviews in question are not the top dogs in the game. The Stanford Law and Policy Review is not the Stanford Law Review. Students at a law school are typically allowed, mainly by acquiring a faculty advisor and a budget allocation, to establish their own journals and use the school’s name in the title. That’s not true of the Fordham University Law Review or the Chicago-Kent Law Review, mentioned above; those are “the” main journals at those respective law schools. Yet it is respectfully submitted that neither of these is Stanford. This is, however, quite a troubling development, especially for those schools.
The other point is that journals with innocuous sounding names redolent of a great university’s prestige have not always been “down the middle” in orientation, even if they haven’t been purchased by sponsors lock, stock and barrell. The best example is the Harvard Journal of Law and Public Policy Studies, which is for most practical purposes a publication of the conservative Federalist Society for Law and Public Policy Studies (in which I have been and proudly remain active for over 20 years) — all of whose members receive a free copy of that law review, making it the most widely-distributed
paperweight scholarly legal publication in the country. Naturally, other law journals have their own biases, depending on their subject matter, faculty advisors, source of funding, and related factors.
I have argued in the past — in a widely-ignored crie de coeur — that “transparency” as to funding sources or other obvious sources of bias is not strictly necessary for publications such as blogs, because ultimately ideas will fall or rise on their own strength. If bias is perceived in the free marketplace of ideas, it does not matter who (if anyone) is paying to promulgate those ideas. If, on the other hand, they are presented fairly and honestly, it also does not matter.
Arguably this changes once an institution, such as a university, lends its own imprimatur to the enterprise, as law journals trumpeting the name of a law school do. But that’s not so clear. (Is anything with the word “Harvard” in the title ever assumed to be unbiased?) Outside funding could be a lifeline for many an otherwise moribund journal, and to the extent that law journal experience is indeed the valuable experience for law students that it’s cracked up to be (judges seeking clerks certainly think it is), the price may be quite reasonable. I’m not convinced, but on the other hand there is certainly no argument against open disclosure.
The biggest losers, regardless of the outcome, are institutions that allow their brands to be purchased cheap.