Abolish law reviews was the message from Walter Olson, in a piece in last week’s Atlantic. Olson, an author, critic on American law, and a senior fellow at the Cato Institute ought not be dismissed in his view that law reviews are outdated, impractical, and slowly dying.
The circulation of law reviews has been plummeting for a generation; the most famous and widely circulated of them, the Harvard Law Review (HLR), has seen its subscriber base dwindle from 10,895 in 1963-64 to a mere 1,896 in 2010-11.
Typical reaction to declining print distribution is to take law reviews online. Despite law schools, law professors and law students wanting to keep three or four reviews alive at every law school (that’s how many there are today), much for self aggrandisement, Olson gets to the real issue — that is whether law reviews, as written today, should exist online or off-line.
The wider question is whether the law review model of content–with its long lead time to publication, editing by students, and format that’s resistant to after-publication editing–yields enough scholarly gems to deserve surviving in its present form even online.
We have some inkling what John Roberts thinks of the matter. The chief justice told judges last year: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.”
Legal discussion among scholars, law students, academia, and practicing lawyers is not going to disappear.
One way or another, some scholarly apparatus will be found to publish meritorious longer articles that advance the mission of serious research into the law. But when it comes to discussion of timely controversies, slash-and-thrust debates, and other forms of writing that people actually go out of their way to read, there’s no doubt where talented legal academics are headed: to blogs and other shorter-form online publications.
Much of the intellectual groundwork for the Supreme Court’s ObamaCare rulings was laid at blogs like Volokh Conspiracy (for libertarians and conservatives trying to overturn the individual mandate) and Jack Balkin’s Balkinization (for liberals defending it). Elizabeth Warren became a national figure in part through her clear and hard-hitting online writing about the problems of consumer debt. Professionally edited web outlets (including The Atlantic) allow law professors to get their arguments before an intelligent audience in hours rather than weeks or months. As online law writing has taken off, readers are rewarding qualities like clarity, concision, relevance, and wit, and steering clear of pedantry and mystification.
Olson sparked quite a discussion across the legal blosgosphere. A dozen folks responded by the next day – law professors, law librarians, legal publishers, and practicing lawyers alike. Though there was one or two for voting for maintaining law reviews, the vast majority viewed law reviews as dying — if not already dead.
Little question that we’re seeing the end of law reviews in print. Don’t expect law reviews to continue online in long form either. There is too much to be gained in advancing the law, collaboration, learning, and yes, reputation enhancing (as is case with law reviews) via the social media platforms we’re just seeing the beginnings of today.
Imagine not only blogs, but curated short form content via Twitter, Facebook, and Google+ that will drive blog content and other discourse. Think Flipboard, Zite, or Pulse for the law. Imagine those social media platforms segregating by jurisdiction, areas of the law, industry, and topics — all at a user’s, as opposed to a legal publisher’s discretion. A user may not even need to select what they want to see — their desire and need will be anticipated. Think Zite+.
Sure there will be arguments that such open source publishing is not peer reviewed. How do we trust the publisher? Forget about it — open source publishing and sharing across the net is arguably more peer reviewed than the legal publications being sold today. Plus the genie is out of the box anyway — we’re not going back.
Law schools, law professors, law students, and practicing lawyers are struggling with today’s changing legal landscape. I see nothing but good news on that front by making legal discussion, review, and discourse open source and democratized.