Rosa Brooks recently kicked up some fine discussion at LawCulture (with this post) about writing for law reviews, contrasting it with writing for other types of publishing outlets. Her post sparked reactions at PrawfsBlawg (from Ethan Leib, Paul Horwitz, and Mark Fenster) and Concurring Opinions (from Dan Solove). And she followed up with another post a few days later. I confess to finding it all interesting, because (happily) I spend so much of my time consuming and producing scholarly writing. To what extent, and with what consequences, is the following statement true: “Law reviews exist for the sake of authors, not authors for the sake of law reviews” ?
Doug Berman, reacting to Brooks, makes a delightful link to a part of the story that has, of late, been much on my mind – namely, the ways that far cheaper distribution means (open access repositories like SSRN, combined with good search technology) may change the law reviews. As Berman says, “New technologies make it cheaper and more efficient to experiment with distinctive fora for scholarly expressions (consider, e.g., SSRN which is also now … generating blog debate). In my view, the legal academic community ought to continue to explore and embrace new forms of traditional scholarly fora (like different kinds of law journals) and also radical new scholarly fora (like blogs).” (Dan Solove’s post on shifting to electronic reprints explores a related byproduct of falling electronic distribution costs.)
I hope those who are interested in such questions will consider attending a conference we’re having at Lewis & Clark Law School on March 10. It’s entitled “Open Access Publishing and the Future of Legal Scholarship.” You can learn more about the conference here.
Also, because I’m teaching Landes & Posner’s “Economics Structure of IP Law” as the main text for a seminar, I was struck by an aside they make about one way an author’s interests may diverge from her publisher’s. I quote the paragraph below the fold.
Landes & Posner, p. 48: “Authors, especially academic ones, may prefer minimal copyright protection because it expands access to their works, which enables them to gain more income, both pecuniary and nonpecuniary, from lecture fees, academic promotion, and enhanced academic prestige than they lose in royalties from book sales. These benefits do not accrue to the publisher and so do not offset the loss of revenues that a reduction in copyright protection implies. However, the author can compensate the publisher by accepting lower royalties and advances and, in some instances, by paying the publisher to publish his work. Academic publishing is roughtly consistent with this model. Authors of journal articles, for example, are rarely paid for their contributions; in some cases they actually pay the journal, normally from grant funds, to publish their articles.”
“Law reviews exist for the sake of authors, not authors for the sake of law reviewsâ€
I suspect this is like asking to what extent buyers exist for sellers and not the reverse? Scholarship is just another kind of economy. I suppose journal pages are the currency, with which you buy influence and prestige, but you could as well switch to electronic banking and the economy would go on.
It’s a little different from the buyer/seller question. To continue your apt analogy, if pages are the currency, law professors have a great deal of say over the printing press that churns out that currency. Most law schools heavily subsidize the publication costs of their law reviews. (Law library subscriptions and royalty income from online databases Westlaw and LexisNexis often cover only part of the print and postage costs. Of course, for the more frequently cited law reviews (Harvard, Yale, Columbia, Stanford, etc.), the royalty income from electronic sources is probably quite a bit higher.) Law faculties, depending on the school, have greater or lesser control over the budget allocations to law reviews that provide this subsidy, as well as greater or lesser sway with the law review student editorial boards who set law review policy. Law faculty salaries also support the production of the scholarly material that appears in the law reviews. It’s an interesting marketplace to ponder …
Speaking of the conflict of interest between academic authors and the journals that publish them, I believe that’s central to the creation myth of the Public Library of Science.
In analogizing to the buyer-seller economy partly I was just fuzzily alluding to how traditionally (I think) we think of an economy as a bafflingly self-sustaining dynamo. Regarding such a system, to ask whether buyers are for sellers or the reverse I would think of as missing the point or at least failing to tip your hat to it. The author/publisher question struck me as like that, was what I was saying.
Great blog, will subscribe.
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