About three years ago, I wrote a short essay on law reviews and open access publishing that characterized legal scholarship in student-edited journals in glib and uncharitable terms: “The theory of the economy of prestige holds that we see a grumpily mutually-reinforcing symbolic economy of law professors, lawyers, law students, law schools and their universities processing professional prestige through the unusual institution known as the law review,” and it went on to suggest that if law faculty wanted to escape the doldrums of intellectual mediocry largely perpetuated by their reliance on student-edited journals — if they really wanted to seize the idea of relying on their own scholarly authority rather than basking in the dim, reflected light of the universities in whose law journals they published — they might redirect their scholarly agendas:
Maybe open access works for knowledge goods that have intrinsic value and not for knowledge goods that don’t. Maybe the law reviews’ reluctance to adopt open access policies and law professors’ reluctance to seek out open access publication is a kind of jurisprudential clue. If law professors really want open access to take hold in legal scholarship, then they–that is, we–should take empiricism more seriously than we often do. Or, if we want to keep up our (and my) pose of reflective self-absorption, we need the justification and prestige that the current publishing system supplies. I’m not confident that we can have it both ways.
Pierre Schlag in the Georgetown Law Journal now offers a similar and even more glib (though not the same) account of the cultural economy of legal scholarship, and Judge Posner in response offers a similar (though not the same) recommendation for rehabilitation.
Which is a somewhat roundabout and long-winded way of saying that I think that they are both mostly right.
I first read Schlag’s piece when he posted it to SSRN, and Lawrence Solum picked it up at the Legal Theory Blog. But it didn’t make a splash until it was accepted and published by Georgetown. If the piece weren’t published in a top 10 student-edited law journal, would it be taken seriously — by Judge Posner? By the other commenters in that issue? In the blogosophere? On your faculty?
Of course, I allow for the possibility that the conversation isn’t taken seriously by some or all of the above even though it is published in a top 10 student edited journal.
I’m very interested in reading the responses, which I have not done yet, but one thing that really jumps out from the essay is Schlag’s skill and cleverness as a writer. I wonder how much his style of writing lends to the strength of his arguments?
One question that struck me while reading this is how much his attacks on academic legal writing apply in the area of IP. In some ways, I think IP is in a very different place than other forms of legal scholarship. I’m not sure Schlag would consider it a better place, but I do think it is a different place.
The biggest problem that I see with this argument is that it sets up a false dilemma. “Scholarly reputation” is not a pure “either selected by scholars or selected by students” question, and shouldn’t be treated that way… especially considering the self-perpetuating way that “legal scholars” get selected in the first place. As long as legal faculties at top-quartile schools are almost exclusively made up of law review editors from purported top-ten law schools, this is going to be rather reflexive problem.
Besides, this is really a meaningless argument for another reason: Absent blind consideration of works, whether it is peer-reviewed or student-reviewed still reflects far too much “what has this person already done” and too little “what does this article have to say.”
I believe that there’s a place for both faculty-edited and student-edited law reviews, but that it’s a dynamic balance that will change from time to time. I’m not defending the student law reviews as paragons of scholarly virtue, but they tend to be much less constipated in the style of scholarship that they print than do the various peer-reviewed journals.
Having edited a peer-reviewed scholarly journal in another field myself, I also question whether most “editors” who would volunteer for the job among scholars really have what it takes to be editors anyway… but that’s yet another argument for yet another time.
But my real conclusion is this: Putting forth a utopian ideal of a hypothetical peer-review system against the messy reality of actual student-reviewed law journals is no better than a straw-man argument… particularly as actually implementing that hypothetical peer-review system will result in substitution of a lot of straw for other building materials.
Please don’t mistake my claim as a defense of peer review. In my 2006, I tried to make it clear that peer reviewed journals manufacture and recycle faculty prestige, too, but in different ways. The question is whether and when it’s possible to escape the symbolic economy altogether, by simply putting the work out there and having it judged on its merits, rather than by a board of reviewers, a board of student editors, and/or according to the perceived importance of the institution whose symbol is printed on the cover.
As someone who’s taking a break from blogging to (in part) organize conferences on 1) developing drugs for the developing world and 2) ensure accountability from new corporate/gov’t surveillance initiatives known as fusion centers, I have to express some exasperation at Schlagian nihilism. I have not sacrificed any teaching, scholarship, or service to do this–only blogging. Any legal academic could do what I’m doing.
My message to Schlag: if you think that legal academics are like the hamster in the movie Bolt, safely insulated from real accountability (and thus rendered useless in the real world) by the artificial sphere of tenure, ask them to help me out in some of my projects. Sorry if this throwing down of the gauntlet isn’t written in prose as sparkling as your own, but I’m too busy to polish it.
Here’s another question: would this piece be getting as much traction if it hadn’t come up on the Georgetown Law Journal page at Concurring Opinions? I assume that the blog link added value as well.
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