Law School Innovation

What are the best (and worst) law review websites?

At a production meeting for the Ohio State specialty journal for which I serve as a faculty editor, the Ohio State Journal of Criminal Law, I told the senior student editors that I believed OSJCL has one of the very best, if not the best, journal website I know.  Here are some of the reasons I make this claim:

1.  All of the OSJCL's content is fully available on-line and for free, and new content from new issues are put up on this website even before the hard-copy journal gets into circulation.

2.  All of OSJCL's content is easy to see an access on the website whether searching by issues, or by authors, or by article title, and all pieces come up as user-friendly pdfs with proper pagination.

3.  The OSJCL website has some additional content beyond the journal's print materials via a special section called OSJCL Amici: Views from the Field.

4.  The OSJCL website includes this page with simple instructions for those interested in submitting drafts for publication consideration and this page with simple instructions (and an on-line form) concerning about subscriptions.

Because a few additional pages of the website are not always subject to timely updating, I think there is still room for improvement at the OSJCL journal website.  Still, because primary hard-copy content is king and because that part of the website is always easy to navigate and completely free to access, I am still prepared to put the OSJCL site in a top tier of law journal websites.

Can readers report other journal websites they really like and/or mention specific features of a journal's website that is especially valuable?  Alternatively, if folks want to call out terrible journal websites or problematic feature of some sites, that would be cool, too.

Posted by DAB

"[M]ost law reviews are simply a waste of trees"

The title of this post (which is cross-posted at SL&P) comes from the last phrase of this amusing and effective commentary by Professor Gerald Uelmen in the June 2010 issue of the California Lawyer.  (Hat tip: C&C.) The piece is titled "The Wit, Wisdom, and Worthlessness of Law Reviews," and here are a few snippets:

During California's legal "golden era" of the Gibson and Traynor Courts in the 1950s and '60s, law reviews were cited with increasing frequency. In a classic study of the authorities cited in California Supreme Court opinions, Stanford law professor John H. Merryman counted 164 law review citations in the court's 1970 opinions, a "sharp increase" over previous years (Merryman, "Toward a Theory of Citations," 50 S. CAL. L. REV. 381 (1977)).

I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six.  This despite — or perhaps because of — the fact that law reviews have tripled in number since the 1970s.  The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley's alone publishes 14, while Stanford and UC Hastings each publish 9.  Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes.  But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.

As Adam Liptak of the New York Times observed a few years ago, "Articles in law reviews have certainly become more obscure in recent decades.  Many law professors seem to think they are under no obligation to say anything useful or to say anything well.  They take pride in the theoretical and in working in disciplines other than their own.  They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them."...

Of course, there are still a few law professors who would rather publish for practicing lawyers and judges than just for other professors. But given the way the academic game is played these days, they do so at their peril — particularly if they are seeking tenure. Still, law reviews are in no danger of disappearing anytime soon.  After all, big law firms and elitist judges continue to demand "law review experience" as a prerequisite for hiring.  The publication of student notes also provides a vehicle to enhance badly needed writing skills for barely literate law students.  But in terms of contributing to the profession, most law reviews are simply a waste of trees.

To put a little sentencing spin on this effective attack on modern law reviews, I wonder how many of the "20 ABA-accredited law schools in California [that] now publish a total of 82 law reviews" have produced articles discussing the dysfunctionality of California's state sentencing system or the profound legal issues that surround its long-lasting prison over-crowding problems.  I know of a few strong "local" pieces on California's three strikes law and other local topics, but not as many as are justified or needed for the legislators, courts and practitioners struggling daily with these issues.

As readers of this blog know, there are an array of interesting and important (and theoretically sophisticated and challenging) issues surrounding California's sentencing law and policy that merit extended and repeated coverage in law reviews.  And I am proud to note that one of the law reviews that I edit, the Federal Sentencing Reporter, has this new issue on "California's Corrections Crisis."  I am thus glad that Professor Uelmen says only that "most" not "all" law reviews are a waste of trees.  (And, of course, no trees were killed or even hurt in the production of this blog post.)

Posted by DAB

An intriguing attack on the traditional law reviews

Thanks to this post at The Faculty Lounge, I saw this interesting new piece from Rachel Anderson titled "Revisiting the Imperial Scholar: Market Failure on Law Review?". Here is the abstract:

This article argues for reforms in the institution of student-run law reviews. Specifically, it calls for an increased understanding of the potential for bias in the article-selection process.  Further it calls for institutional retraining to support the implementation of new article-selection criteria and standards and facilitate more accurate evaluation of scholarship.

Student editors often evaluate legal scholarship based on assumptions stemming from socio-cultural understandings of law and society that do not address or incorporate the breadth of American society across lines of race, class, gender, and sexual orientation. This should not be surprising.  No one scholarly norm or standard can rigorously analyze the full range and extent of the breadth and depth of American society. This inherent inability demands a plurality of ideologies, methodologies, norms, and standards to facilitate and ensure a complex and rigorous intellectual debate.  The reforms I suggest are intended to address the hurdles that law review editors must overcome to effectuate a more intellectually rigorous and informationally valuable article-selection process.

This article uses a hybrid methodology employing the tools and insights of both critical race theory and law and economics.  It begins with issues of bias in legal scholarship raised in the two preceding decades by Richard Delgado, a leading critical race theorist, and Edward Rubin, a former Chair of the Association of American Law Schools Section on Socio-Economics. Then, it follows in the tradition of law and economics scholars and Nobel Prize winner Gary Becker utilizing the tools of economic analysis in non-market contexts.  Specifically, this article utilizes economic theories and concepts such as market failure, informational asymmetry, switching costs, and network effects to develop a deeper understanding of institutional bias on law reviews. Finally, it employs scholarship on rhetoric and critical reading skills to identify opportunities for reform.

Why empirical research is better at raising questions than answers --- some ruminations about ruminations about the Yale clerk study

Guest blogging at Balkinization, John Donohue has this very lengthy post, titled "Why I'd Stick With Yale Clerks -- Some Econometric Ruminations," which takes issue with this new provocative paper based on empirical research concerning Yale law clerks and judicial opinions.  Here is the start and end of Professor Donohue's analysis in the post:

Another illustration of empiricism gone astray is provided by a new working paper by Royce de Rohan Barondes, which adopts the following provocative title: "Want Your Opinions Questioned or Reversed?  Hire a Yale Clerk."  The man bites dog nature of the claim is sure to raise interest in the paper, since Yale is obviously one of the most elite law schools in the U.S., and the hardest to get into. Unfortunately, counterintuitive empirical results almost always turn out to be wrong if they are not based on an appropriate empirical methodology for the inquiry at hand. In my opinion, the methodology of the Barondes is flawed, and the conclusions drawn from this research are either incorrect or unfounded.  My review of the Barondes paper (as well as my own personal experience with Yale Law students) affords little reason to believe that the value of a Yale Law clerk is less than the law school’s preeminent ranking would suggest....

In sum, I am confident that a more suitable methodology than the one employed by Barondes would reveal that Yale Law clerks are extraordinarily capable and effective public servants.  All judges will likely be pleased to hire them.

The dissection of the Yale clerk study between these two paragraphs is effective at raising a lot of great follow-up questions about the Barondes paper.  But, I highlight the start and end of Professor Donohue's analysis because I am really stunned by the initial assertion that there is "little reason to believe that the value of a Yale Law clerk is less than the law school’s preeminent ranking would suggest" and by the ending assertion that he is "confident that a more suitable methodology than the one employed by Barondes would reveal that Yale Law clerks are extraordinarily capable and effective public servants."  (Perhaps this ending assertion was written with tongue-in-check, but the post title suggests otherwise.)

It strikes me as very fitting and valuable for one empirically-oriented law professor to question and critique another law professor's empirical research.  But, I am troubled that the critic (who is clearly biased by where he teaches) concludes his analysis by asserting with confidence that sounder research would prove the antithesis of what the critiqued study suggests.

Perhaps more important than my critique of the Donohue critique is my broader observation that empirical research and analysis is far more effective at raising important normative questions than at answering even descriptive ones.  To focus again on start and end of Professor Donohue's comments, I wonder what judges, professors, practicing lawyers and lay people perceive or believe to be "the value of a law clerk."  Similarly, I wonder what judges, professors, practicing lawyers and lay people perceive or believe to be the ways in which young lawyers can and should be "extraordinarily capable and effective public servants."  Those are the big questions that neither the Barondes study or the Donohue critique really explores.

Harvard's open publishing policy and the outlook for law schools

As covered elsewhere, Harvard's Faculty of Arts and Sciences adopted an open-access policy last week, which obligates faculty to grant the College a license to their publications and to deposit an electronic copy with the College. [Full text of the resolution] Contrary to rumor, the faculty member retains any copyright s/he may have in the publication; the College asks only for a non-exclusive, non-commercial, irrevocable license to the work, with an opt-out possible on individual cases.

Unlike the status quo in the arts and sciences, legal scholarship is largely published in student-run, and therefore law school-owned, law journals. Thus, law schools have largely avoided the escalating fiscal spiral in which their colleagues have been trapped, wherein publishers extract larger and larger fees from schools' libraries for printing works that the schools themselves have largely subsidized. Law schools' journals, while not always the most timely of publishers, don't engage in this degree of profit-extraction. Furthermore, many faculty deposit articles in SSRN or BePress regardless of the paper's actual (or virtual) publication.

The openness of law schools' journals is largely due to history rather than deliberate planning. It gives law schools a huge potential leg up in entering the digital knowledge network, but because it's arisen by happenstance, it's also vulnerable to being undermined. It would be ironic indeed if, as the rest of academia moves towards openness that law schools could be at risk of being hemmed in.

There are, I believe, a few things that schools can do to take advantage of their head start:

1. Formalize their commitment to open publication to remove any doubt about the open (public accessibility) status of law journals. See Open Access to Infinite Content (Or 'In Praise of Law Reviews') and the Open Access Law Project.
2. Commit to a world where not only is all scholarship openly available, but also easily searchable, well-cataloged, and easily repurposed for educational or other uses. (While that may not mean storing the articles in full-blown XML, it almost certainly means no PDF).
3. Execute that vision by leaning on SSRN to become more open and/or networking all law libraries together to create a bigger, better, badder legal research hub. To that end, lay down basic standards (common metadata fields, etc) and a technology platform. To the extent that law journals continue to self-publish, ditch the ad hoc approach and adopt a standard, easy-to-use, fully-supported system made freely available to all journals. Web technology has reached a point where we should no longer be reinventing the wheel across institutions.

In the digitally networked age, legal scholarship enjoys significant advantages over other disciplines in being largely based on public-domain texts. The value of breaking open our research without a third-party mediator (e.g. publishers) is enormous. Let's not squander our advantages here.

- Gene Koo

Do we want on-line production and/or faculty-edited journals to bring the demise of traditional law reviews?

Larry Solum, Paul Caron and others (myself included) have written thoughtfully about the future of legal scholarship, justifiably focusing on the impact of technology on traditional forms of law review production and dissemination.  Somewhat less discussed, though perhaps no less important, is a seemingly growing interest among legal scholars to cultivate faculty-edited journals as an alternative to traditional student-edited law reviews.  (This recent announcement that Harvard Law School professors are launching a new faculty-edited journal, to be called the Journal of Legal Analysis, is Exhibit A documenting this trend.)

Though many are now noticing and effectively describing the modern (and rapid?) evolution of legal scholarship, I have still seen relatively little normative analysis of these trends.  Specifically, I wonder if readers think we should embrace or resist movement away from traditional student-edited law reviews as the primary outlet for legal scholarship. 

Perhaps because I am a blogger and an editor of two distinct peer-review journals (the Federal Sentencing Reporter and the Ohio State Journal of Criminal Law), I tend to endorse the modern migration away from traditional student-edited law reviews.  That said, I hope (and expect) that student-edited law reviews will always play a significant role in the universe of legal scholarship.  I also suspect that the work of promotion and tenure committees will be the most important "market force" shaping these realities.

Posted by DAB

2 reasons to go to conference: Intl Law Superstars and Vancouver!

Link: 2007 International Law Mid-Year Meeting AALS Association of American Law Schools.

This summer, the beautiful city of Vancouver will host the AALS mid-year meeting and this year that meeting will be devoted to International Law.  The lineup of speakers is very impressive indeed. I encourage all international law scholars (and future scholars) to attend.  Here's what the organizers have to say:

Why Attend?
The world is moving so quickly - globalization of trade, terrorist attacks, global warming, preemptive invasions, international courts springing up around the globe - and the law necessarily changes to keep up with it. No one can keep abreast of the ever-evolving face of international law, much less pause and reflect on how these developments affect the way we teach and write about it.

This is the first AALS Mid-Year Conference on Teaching International Law in 11 years. It will bring together teachers and scholars for three days of intensive discussion on how we teach and write about international law and where the field is heading. There will be plenary sessions, small group discussions, and paper presentations. The panelists, drawn from the most highly respected scholars in their various fields, will be around for the entire conference, enabling conversations to continue long after the formal discussions have ended.

The judicial (and judicious?) decline of law review cites

Monday's New York Times has this interesting "Sidebar" column by Adam Liptak entitled, "When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant."  Unsurprisingly, the article includes ruminations that on-line developments and innovations in part explain why law review articles are being cited far less frequently in judicial opinions in recent years.  Also unsurprisingly, the legal blogosphere has been quick with commentary from:

• Jack Balkin with Judges Lose Cite of Law Reviews
• Doug Berman with More grist for the blog-scholarship debate
• Orin Kerr with How Often Should Judges Cite Law Review Articles?
• Daniel Solove with Why Are Judges Citing Fewer Law Review Articles?

Posted by DAB

UPDATE: Here's some more commentary on a topic that I assume will continue to generate buzz from law professors and law bloggers:

• Dale Carpenter with Two more thoughts on the decline of law review citation
• Peter Lattman with Judges Are Ignoring Law Review Articles
• Eugene Volokh with How Much Should Legal Scholarship Aspire To Being Cited by Judges?

As is often the case, Ann Althouse has the most enjoyable of posts on this topic, and it concludes with this fantastic call for action:

[J]udges could change the whole dynamic if they started rejecting law clerk applicants whose law journals published the kind of articles they don't read.  So quit complaining and use your power to change things.  Or are you so beholden to the law professors whose work you don't read that you have to hire their darlings, those law students who publish the articles you don't read?