pageok
pageok
pageok
The Future of Legal Scholarship?:
News that some of the top law reviews are turning to shorter articles makes me wonder about the future of legal scholarship — and in particular, how the combination of blogs, SSRN, and shorter articles might work together.

  Here's one vision of the future. In a decade or two, articles published in law reviews will average about 30-40 pages in length. The "law review version" of the article will be the condensed core of the argument, with relatively few footnotes. The goal of the "law review version" of the article will be to present a relatively brief and highly readable version of the argument for a broad audience — sort of like articles in the Green Bag, but a bit longer. This is the version that will go into print and be found in the stacks at the library.

  Second, each article will also have an associated website that contains other resources relating to the article and its argument. The website could be the law review's, or SSRN, or perhaps a blog. Either way, the website would contain an extensive biblography, a helpful discussion of background materials, and any other materials that a researcher wishing to learn more might find helpful. A comment section on the website might be available as well, allowing individuals to leave comments about the article and carry on a discussion of its merits.

  It seems to me that this would be a major improvement over the existing approach of legal scholarship. The Internet allows authors to bifurcate their scholarship into condensed and more readable versions for publication and more extensive versions available online for those interested in knowing more. Law reviews could focus on publishing the condensed and readable versions, while websites containing additional materials could be handled separately.

  Your thoughts? I have enabled comments.

Simon (mail):
Amen, amen, amen. I recall our friendly host has, with at least some articles, made different versions available in different fora with varying amounts of footnotes and other marginalia. That all could be so persuaded . . .
2.10.2005 4:44pm
Stuart Buck (mail) (www):
An interesting idea. A few quibbles:

1. This won't solve the problem that Lawrence Solum pointed out, viz., that lengthy background sections are necessary in order to educate relatively ignorant student editors, who won't otherwise know much (if any) of the relevant context of any given field of law.

2. What version would appear on Westlaw/LEXIS?

3. Question 2 is important, because to a practicing lawyer, the most useful parts of law review articles are the background sections filled with citations. You can save yourself hours of tedious research if you find a good law review note or article that already has compiled into one footnote all of the 37 cases that have ever considered the precise point of law that you're interested in.
2.10.2005 4:50pm
David Smyth (mail):
This sort of system would encourage submissions by practitioners much more than the current one does. As it stands a practitioner has to be pretty determined to reshape an actual legal question into something that could fit into most law reviews. Orin's system sounds like it would make, say, an appellate brief a much closer cousin to a law review article. Opening up that avenue of publishing to lawyers who often don't have time to produce long articles in addition to their practice would be good for legal scholarship in general, I think.

I also suspect that stripping away the excess length and purely ornamental footnotes (not that they all are) would help student editors recognize which articles are significant contributions to the law and which are junk.

Regarding Stuart Buck's point #2, as long as it's clear where the "expanded" version of the article can be found on the web, it seems that the research value of law review articles could be preserved there instead of in the print or Westlaw versions.
2.10.2005 5:28pm
John Armstrong (mail):
This sounds like an interesting halfway point between the permanence of paper journals and the universal access of online postings.

As for how to structure the online archive, maybe a modification of the setup used in the arXiv already popular among the mathematics and physics communities? For that matter, what about an arXiv for law: a non-peer-reviewed site ot get academic works to the community at large quickly and easily before they make their long trek through reviewed journals?
2.10.2005 5:29pm
Sarah (mail) (www):
I spent a good chunk of last weekend helping sort out footnotes, already reviewed by my mom's law school's law journal staff. Each of them reviewed 50 footnotes, our job was to make sure they'd reviewed them properly. Two of the articles had footnotes that didn't seem (to the journal staff, to me, and to my mom) to have anything to do with the text they were supposedly supporting -- in one of the articles, there were a few references that actually said exactly the opposite of what the author thought they said. How would this system help student editors to be sure that the scholarship itself was done properly?
2.10.2005 5:40pm
Gabriel Rossman (mail) (www):
Professor Kerr's prediction is already occurring in some other fields. For instance in the February 2004 American Sociological Review, the editor wrote:

The website will also feature supplemental material that
cannot fit within the space limitations of the journal. In the case of William Bielby’s Presidential Address, the ASR website will feature pictures and sound clips that build on the themes of his paper. More often the website will feature graphs and appendix tables that supplement the published findings. We can replace the phrase “results not shown,” with “results not shown; see the ASR website for additional relevant material.” In this way, we can provide as much information as possible for the aficionado without using scarce journal pages for research details that may be of little interest to the general reader.
2.10.2005 5:59pm
The Monk (mail) (www):
I'm waiting for the day that appellate briefs can be done the same way because I despise the current trend of making appellate briefs into pseudo law review pieces -- less text and explanation, more footnotes and marginalia embedded therein. I have viewed most law review articles as generally unreadable because too many important points are in the footnotes and the authors fail to link their premises to their conclusions in the text. In our practice, the trend toward producing briefs that resemble law review articles is called "creeping Garnerism" after Bryan Garner -- a legal writing "guru" who has excessive influence among judges and law clerks. I prefer to include the core argument and substantial background and reasoning to back it up in the briefs, and relegate the footnotes to less important points.
2.10.2005 6:36pm
Nick B. (mail):
I made law review at my school and now am in the midst of writing my "comment" which the powers that be mandated must be at least 50 pages in length. Never mind, that a 25 page treatment of my topic would suffice. Now, I must "pad" my paper.
One of the hardest assignmnents I ever had, was when I was in graduate school and the professor said that our final paper must be a MAXIMUM of 2 pages. There was no room for B.S. and all of the students agreed it was a difficult task.
Brevity, is indeed the soul of wit.
2.10.2005 7:01pm
T-Money (mail):
I suppose that when someone gives you an assignment to write a 50-page paper, implicit in the assignment is a directive to choose a topic for which 50 pages is an appropriate treatment.
2.10.2005 7:22pm
adam (mail) (www):
Anything that makes the rest of the legal scholarship world more like The Green Bag 2d is a good thing.
2.10.2005 7:25pm
AnonLREditor:
I know of at least one article out there that has realized this "vision of the future" to some extent. One of my professors published an article last year and then built a website around it.

The article was an empirical study, and the website has the dataset, powerpoint presentations, and a bunch of other material associated with the article.

http://www.claimconstruction.com
2.10.2005 7:31pm
arbitraryaardvark (mail):
I think we will se this with briefs too. "here is our 20 page brief. footnote 1 points to the 800 page online version."
2.10.2005 9:01pm
Bruce:
I've often thought this would work very well in history, where the argument is even more source-based than in law. The published book or article would make the argument, but an online complement would contain sections from the various sources, so that interested readers could read the entire letter and see if they think, e.g., Abraham Lincoln was making the same point you say he was making.

As for arxiv, there is an arxiv for law, it's SSRN.

Also, I disagree with the post on Garner. Garner is pro-footnotes in briefs, but there is a very important corollary: nothing but a citation should go in the footnotes. No argument.
2.10.2005 10:36pm
David Krinsky (mail):
I have three major concerns with this bifurcated vision of legal scholarship: extended online versions of articles are likely to lack longevity, will lack the careful review that published pieces get, and may be superfluous.

The first is perhaps the most problematic. Our society has yet to come up with a reliable scheme for the long-term preservation of online information, particularly information which may be superseded or updated but of which prior versions may be useful to scholars. Today, an increasing number of law review articles cite web sites that are reorganized or disappear between the original article submission and publication--how are these articles likely to fare over a span of years, and do we really want to encourage articles to push more of their useful content online? Permalinks and repositories such as SSRN can help, but it's far too soon to see them as replacements for journals themselves, which are kept in bound form in every law library for decades. (And asking law reviews to maintain such sites is unlikely to help; even where they have resources, they lack institutional memory. I doubt our own law review would be able to locate most of the sources that in previous volumes have been cited as "on file with ____ Law Review".)

Second, part of the point of publishing in a law review is that law review articles get cite checked. Cite checking by students has its downsides--and we could argue at length about the comparative merits of student cite checking versus peer review--but it tends to be thorough. Online sources are unlikely to get much if any editing at all, much less review for accuracy (and academic honesty) by a third party. Worse, the sort of information for which cite checking is most useful--discussion of the state of the law containing lengthy string cites to cases--seems to be among the most likely to be relegated to the second-tier, online versions of articles.

Finally, the reason we want articles to be shorter is not that law review issues are too long. It's that most articles don't contain enough meat to be worth their length. Only a minority of articles contain the sort of comprehensive background discussion, literature surveys, or topical discussion that would make for a worthwhile "extended edition"--and that minority, by and large, law journals are and should be happy to publish. General interest journals need a fair amount of background in articles not just for students, but so that the articles can be interesting to and useful for practitioners and academics in different subfields. The length problem, as I see it, more often comes from some secondary discussion that adds length but isn't as well-thought-out, well-researched, or original as the core of the work--and which doesn't need to be relegated to an extended version, but rather to another article, or perhaps the dustbin. (An additional problem is that student law review editors are hesitant to heavily edit writing by established scholars, many of whom get prickly if we try to change what they wrote too drastically. There again, web sites that get even less editing seem like a step in the wrong direction.)

I think I'd rather just see a world in which legal scholarship that's well-suited to the online medium moves there, law review articles remain as standalone pieces that are intended to be a bit more timeless and that receive a bit more careful craftsmanship, and authors in both media realize that conciseness is a virtue.

[Disclaimer: I am a third-year law student on the editorial board of one of the law reviews that's party to the agreement, but I had no role in the agreement's creation and speak only for myself.]
2.10.2005 11:49pm
SupremacyClaus (mail):
This here is the future of legal scholarship. Blogs of any length. Immediate comment by peers. Ratings of quality pop up in the Google citation position and counts.

Students stop wasting time checking references 50 hours a week. Instead, they do real law, under supervision, as in the clinical years of med school.
2.11.2005 5:33am
Guest:
So kind of like Lord of the Rings... where you watch the 3-hour version in the theaters, and then 4 months later you can get the extended version DVDs, with interviews with the makeup crew and the director and stuff.

That would be neat if law reviews could do this. You could have .mov clips of law review editors talking about how it was working with the author, shots of 2Ls doing cite-checking, and interviews with the author explaining how "pathbreaking" the piece is.

And of course you could read the "editor's cut" of the piece, with all of the grammatical errors and rambling paragraphs left in their original form.
2.11.2005 8:04am
Joe Socher (mail):
Only among legal academics would 30-40 pages be considered a short article! In other disciplines that is on the long side of average.
2.11.2005 2:02pm
Crime & Federalism (mail) (www):
Brilliant. In a slightly better world the articles will have linked embeeded to the sources cited. Since West bought Findlaw, Findlaw has sucked. But I'm hoping that Cornell's LII will eventually have all SCT cases and that some repository will store federal courts of appeals and state cases. It's always frustrating to me when I blog about an article or case that is not publicly available. Seems to me that the repository I'd like to see should be publicly funded, since the public does have an interest in freely accessing decisions interpreting public laws.

Why don't the official state reporters just start making available the full text of each book? SCOTUS already does this: ( http://www.supremecourtus.gov/opinions/boundvolumes.html ) Maybe the bandwith bill would be too expensive?
2.11.2005 2:13pm
Robert Schwartz (mail):
Law Review Articles have gotten longer, not better. Go to the stacks an pull some law reviews from the 40s or 50s. Articles, some of them very famous and very influential may have been 10 to 20 pages long, with only 2 or 3 footnotes per page. No algebra, no French philosophers.

Why so long? Why are contracts that used to run 10 pages now 60 pages? Word processing is one answer. Its a lot easier to throw words on to a page. Research assistants. Too many professors have them now digging up too many cases for too many foot notes, which their hyper-anal student editiors demand. Tenure committees. Obviously. In the 50s it was a good old boys world -- fewer committees.

We have not gotten smarter, just wordier.

As for the relation of these trends to the actual practice of law, first I am not sure who Monk writes briefs for, but under FRAP 32.a.7 appellate breifs are limited to 30 pages or 14,000 words. I understand that most circuts are very strict about those limits and I would be very chary of testing a judge's patience.
2.11.2005 8:41pm
Stephen Lindholm (www):
I'm having difficulty understanding the purpose of this proposal. Certainly we'd be better off without student editors demanding that each sentence have a footnote, and with articles being shorter.

But a law review article without any footnotes would be useless to anyone who wants to rely on the article for authority, and I don't think anyone reads law review articles for fun. Law review articles are supposed to be rigorous, well thought out, and promote discourse. Scientists have Cell and Applied Physics Letters to talk among themselves, and there are magazines like Discover and Scientific American to educate the masses.

With a burgeoning number of legal journals, almost anything can be published, thus there is more and more slop, all indexed by Westlaw. I would rather make it rigorous (thus useful to academics and judges), not try to take the place of the New York Times editorial page.

2.13.2005 9:14am
OrinKerr:
Stephen,

I'm not sure why you interpret my proposal as calling for op-eds with no footnotes, but I think it's important to note that I recommend no such thing. My suggestion was to have 30-40 page articles with "relatively few footnotes." I was not specific about what "relatively few" means, so maybe that is the source of the misunderstanding. In any event, I think that around 80-100 footnotes for a 30-40 page article (instead of 300-400 footnotes for a 60-70 page article) sounds about right.

Of course, that doesn't mean that op-ed length arguments about legal developments are not useful -- that's what the VC is all about, right?
2.13.2005 1:26pm
Lawrence A. Cunningham (mail):
Maybe this will be the future; who knows whether it will be better. At least traditional scholarly publishing involves an elaborate vetting and editorial process, including important functions such as preemption checks and attribution constraints. One often reads on the blogosphere writers making identical points without any evidence that they are aware that others have said the same thing because there are no editorial constraints in that world. For example, I note that the post on which I am commenting bears a date of February 10. The following was posted the day before that on the American Constitution Society blog comment board concerning new limitations on article length.

Written By:Anthony D'Amato On February 9, 2005 04:07 PM
We ought to split the problem. The shorter version of the article (say, a max of 35 pages) should be published in the law review. The longer version should be published on the internet with the url listed in the first footnote of the law review article.
2.22.2005 8:39pm