The Journal of Law

Ross Davies, the editor-in-chief and cofounder of the Green Bag 2d, has just launched a very interesting new project called the the Journal of Law; if you want to see what the first version looks like in print, see here. Here’s Ross’s explanation of how the journal (or is it a meta-journal?) differs from other journals:

The Journal of Law looks a lot like a conventional law review, but it is really a bundle of small, unconventional law journals, all published together in one volume. Each journal is separated from the others by its own black-bordered title page. Look at this volume edge-wise and you will see. This structure saves money over separate publication. It also frees editors of the individual journals to spend more time finding and refining good material, and less time dealing with mundane matters relating to the printing and distribution of their work product. Thus the Journal of Law’s generic name: it is no one journal in particular, and it is not tied to any particular institution (like, say, the Stanford Law Review), subject (like the Tax Law Review), specialty (like the Journal of Law & Economics), or method (like the Journal of Empirical Legal Studies). The idea is that the Journal of Law will be an incubator of sorts, providing for legal intellectuals something akin to what business schools’ incubators offer commercial entrepreneurs: friendly, small-scale, in-kind support for promising, unconventional ideas for which (a) there might be a market, but (b) there is not yet backing among established, deep-pocketed powers-that-be.

The conventional law reviews that law schools support are, after all, like snowflakes. Microscopically speaking, each one is unique and beautiful in its own way. Practically speaking, they tend to be pretty much the same — difficult to distinguish absent identifying marks, especially when a large number are packed together, as in a ball or in a database. But water (the main ingredient in snowflakes, along with air) is blessed with many opportunities to appear in different forms, while legal scholarship (the main ingredient in law reviews) must either crystallize into law review articles or risk eternal academic invisibility. [Footnote: Granted, it is a risk, not a certainty, because there are a few alternatives, most importantly books and blogs. But they have limitations. In academic law publishing, a book often is just a big law review article (or bundle of articles) published by professionals at a press instead of (or as well as) by students at law reviews. Acceptance of blogging as genuine legal scholarship (the definition of which is beyond the scope of this essay and probably the capacity of this author) is an open question, although its importance as a force in the legal academy is not.] The main objective of the Journal of Law is to provide legal scholarship with more opportunities to be more like water.

The Journal of Law comes, however, not to bury law reviews, but to praise them. The undeniable truth, regardless of where you stand in the wide range of positions on the merits of law reviews, is that the law review is the dominant life form in the world of legal academia. It is by far the most successful species of legal scholarship — the flowering pinnacle of legal-academic evolution. And so it is that in the richly blooming field of law reviews, the Journal of Law merely aspires to be a useful variety — or, more precisely, varieties. If the Journal of Law is to succeed, it will do so not by revolutionizing the development or dissemination of legal scholarship, but, rather, by gradually and constructively broadening the definition of what counts as a law review article and what counts as a law review.

But perhaps there is no need for greater variety in the forms of legal scholarship.

On the one hand, the enthusiasm that sometimes greets opportunities to diversify — blogging being the best recent example — suggests that there is a felt need among law professors and other legal intellectuals for more options in outlets for their scholarly thoughts.

On the other hand, the reluctance that greets calls to include such material in, for example, promotion and tenure decisions suggests that while things other than law review articles (and books) might be interesting and even useful, the legal academy in general is not comfortable with funny-looking scholarship. After all, the commitment to the traditional form is so strong that almost anything generated in the form of a conventional law review article — even if it has little to offer in the way of content — will find its way into a law review. (What is a “conventional law review article”? Perhaps this will do for starters: a monograph dealing with a topic connected in some way to the law and containing (1) between 10,000 and 70,000 words, (2) more than 100 footnotes, (3) at least one theory, and (4) a byline featuring at least one law professor or powerful public official or private practitioner.)

Or maybe — and this is, again, the predicate for the Journal of Law — there are some other paths along which law reviews might evolve: paths scattered with points at which something might look and quack enough like and yet unlike a conventional law review article to both (a) attract the respect such articles receive and (b) stretch, slightly, their definition. Over time, via the Journal of Law and other outlets, the legal academy might gradually inch its way into an environment in which more diverse forms of scholarship are respectable and therefore widely useable.

Of course, if it turns out that all is right in the world of legal academic publishing (with no niches left for the journals of the Journal of Law to fill), or that the structure and culture of that world make evolution and diversification impossible, or that there is room and support for change but the Journal of Law is too poorly designed or managed to be a part of that change, then this project will flop. The market will speak.

The Incubation

So, what will we be incubating? What novel forms or subjects or methods or whatever of legal scholarship will actually appear in the Journal of Law?

There will be four or five or six new journals and perhaps more in the short term (meaning in this, the first issue of the Journal of Law, and the next few issues). The initial three journals are listed below and described in greater detail in the introductions to their respective sections of this issue.

Over the long haul, the reader’s guess is likely to be as good as ours. This is because the Journal of Law will incubate whatever promising ideas coming along. Anyone (or maybe only some people) who can convince the journal’s management (see the masthead) that they have an idea that deserves a try will get a chance to put that idea into practice in the form of a dedicated, editorially freestanding journal-within-the-Journal-of-Law. Who can foresee what might turn up? Certainly not the proprietors of the Journal of Law.

That is pretty much all the Journal of Law is and will be: a bunch of experiments of indefinite character, content, and duration. Some of the experiments will fail, some might succeed. And among the successes some might become permanent parts of the Journal of Law while others might spin off into physically as well as editorially freestanding publications.

In this issue of the Journal of Law there are three journals:

* Pub. L. Misc. is a project of James C. Ho of Gibson, Dunn & Crutcher and Trevor W. Morrison of the Columbia University School of Law. Their plan is to provide a forum for the publication of a relatively neglected body of legal material: constitutional documents, recent and ancient, that originate outside of Article III of the U.S. Constitution.

* Law & Commentary is an experiment in non-blind peer review in which signed reviews (by senior, influential scholars) are published side-by-side with the reviewed work. The first issue features an article by Stuart Chinn of the University of Oregon School of Law, with commentary by Bruce Ackerman of the Yale Law School and Sanford Levinson of the University of Texas School of Law.

* The Congressional Record, FantasyLaw Edition, is a student-edited journal (formerly an adjunct to the Green Bag) focusing on empirical analysis of the activities of federal legislators.

And we will be introducing at least one additional journal in the next issue of the Journal of Law:

* Chapter One is a project of Robert C. Berring of Boalt Hall, in which he reintroduces underappreciated classic law books by publishing the first chapter of a book in the company of one or two or a few good essays about it. His hope is that access to a convenient and unintimidating portion of a great book, combined with accessible analyses of it, will lure readers into the whole book, or at least to give them some direct familiarity with slices of that original work and some of the best thinking about it.

By giving scholars the opportunity to try out ideas like and unlike these — and especially the chance to do so without most of the costs, risks, and hassles associated with (a) getting institutional and financial support for developing them as freestanding enterprises and (b) doing the scut work of printing and distribution — the Journal of Law ought to increase the likelihood that good ideas (and maybe some bad ones) will get tested, rather than merely talked about.

Another benefit of this co-operative approach may be a reduction in, perhaps even a reversal of, the proliferation of law reviews. Enterprising scholars who work in the Journal of Law will not need to build a whole new law review edifice (or perhaps gamble on something more exotic) in order to test drive a new idea. If an idea tested in the Journal of Law turns out to be bad it will never become a failed investment in a whole new law review. Instead it will be in large part the Journal of Law’s less-costly investment, one that might or might not have a positive academic return.

Furthermore, it is also possible that the Journal of Law will end up as the home of good ideas that are currently manifesting unsuccessfully as conventional law reviews but that would do better in a different form. It is an amusingly perverse prospect, given that the Journal of Law is itself a new law review — physically speaking, that is — in a world already seen as overpopulated with law reviews.

The Ink on Paper

For the time being, the Journal of Law will be a print journal, as well as an electronic one (we are at www.journaloflaw.us). At first blush this commitment to old-fashioned print might seem an odd choice for a publication so amply supplied with self-congratulatory feeling about its innovative tendencies. A print edition is, however, an essential part of the Journal of Law, at least for now, because our objective is to operate and appear as much like a traditional law review as possible in order to leave the editors of our journals as much latitude as possible to push boundaries in other directions that are important to them. And there are still powerful links between scholarly respectability and ink-on-paper publication. The evidence pervades legal academia: Is there a law school at which the flagship law review appears exclusively electronically? [For the rest of the section, see here.] …

And so, in conclusion and on behalf of the Journal of Law, I ask: Got any good ideas?