I think Walter Olson’s basically right. but there are so many obstacles. First mover issues. Revising the tenure process to accept non-traditional scholarship. Inertia. And so on.
Marie Newman (Pace Law School, whose library staff was outstandingly helpful to me when I was researching Schools for Misrule):
Walter Olson, the always provocative legal commentator, has struck again …the article uses the Harvard Law Review to illustrate the plummeting circulation and stunning irrelevance of even the most prestigious of the academic law reviews in the twenty-first century.
But then we’d have to abolish the Bluebook. It won’t stop!
Surprised that the piece made no mention of SSRN.
The first clue to a judge that an attorney has absolutely no legal support for his/her argument in a brief is their citation to a law review article.
The circulation numbers are simply misleading. The proliferation of online databases such as Westlaw, Lexis, Bloomberg Law and now Google Scholar have made much hard copy legal scholarship and reporting obsolete. I would be willing to bet there are far fewer lawyers ordering hard copies of the Federal Reporter as well. That doesn’t mean the content is obsolete simply the presentation form. But law reviews have adapted and many run very fine websites that print shorter form reactions to the long form pieces in the actual publication.
I disagree with Walter. The law review should not die. It’s already dead. It’s been dead for a while, and merely wanders about like zombies eating the brains of those who are caught in its clumsy clutches.
I think [Olson] is wrong to assume that “talented law profs” seek out short form options to present their ideas because that’s the first best place to be. … I suspect at least some of us hardly desire to go online to do short form writing as such. Rather, it’s more a matter of resignation about where the eyeballs might be and what civilians’ attention levels are. … But writing to get the argument right requires patience and diligence. Opeds don’t reward that. …
The real problem in law scholarship is not where it appears or how long it is, but whether it is lockboxed. To my mind, every piece of legal scholarship produced should be available online either in final draft or penultimate draft.
[No, I'm not against long-form legal scholarship. I do think it's commonly ill-served by today's law review format. -- W.O.]
E. Donald Elliott (by email):
Why “abolish” them? They are harmless enough and they provide good training to law students. A little like saying we should abolish high school basketball because the teams can’t compete in the NBA.
Don’t abolish, adapt…The sidebar to [Olson's] article features text by Jack Balkin (The Court Affirms Our Social Contract) and Wendy Kaminer (Juvenile Sentencing: Alito’s Misguided Dissent). Those articles would be published some time in the late fall or early winter at best if written in a form appropriate for law review editors. … My biggest problem with law review content is that even when it is presented online it still generally conforms to print. Maybe it’s the Bluebook mentality.
But where would we pub… Right, carry on!
Maybe we need a knockout rule whereby law reviews that don’t get enough court citations fold? Or would this lead to bad cites?
P.S. My Cato colleague Roger Pilon adds, “Except for the Cato Supreme Court Review, of course.” My reply: Like the Chicago-based Journal of Law and Economics and Journal of Legal Studies, the CSCR breaks with the typical law-review format in several ways, most notably by not being student-edited. No wonder it succeeds.