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Law Reviews and Blogs

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. Charles Paul Hoffman says:

    Two thoughts:

    First, not that I would be sad if an unspecified number of low-quality journals stopped publishing, but an alternative does come to mind: we could keep the number of journals constant, but reduce the number of articles/issues each publishes in a given year. It is not uncommon for journals to have 5+ issues a year, each 200+ pages. Cutting out a single issue would equate to about 4-5 articles, if not more. Now, obviously, the situation isn’t as bad at some of the smaller journals (whether we’re talking “lower ranked” general law reviews or the specialized journals that print fewer/shorter issues), but many journals could lose an issue without significant harm.

    Second, I’m not entirely sure that we should treat most of the law reviews out there as “old/print media.” While I am sure almost all American law reviews are still printed on paper in some quantity, the print runs of most of these journals have to be vanishingly small, with even many libraries relying on the Westlaw/Lexis/HeinOnline trifecta to have access to the more obscure journals. I suspect the explosion of journals in the past twenty-five years would have been impossible without the electronic databases. But, because of the circumstances of academia (esp. expectations re: tenure), these new entrants had every incentive to make themselves look like traditional law reviews. But while they look visually similar to the “old media” journals, they really aren’t the same—they are more akin to the open access journals in the hard sciences, with “open access” replaced by “accessible with a Westlaw or Lexis subscription.”

    And one final thought—ultimately, the surfeit of American law journals is possible only because of the lack of peer review and the concomitant requirement for exclusive submissions. I simply cannot imagine that ~200 generalist journals could possibly survive if not for a system that allowed submission to multiple journals at the same time, though some specialty journals might have a better chance of survival. (FWIW, in Canada, where law journals are peer reviewed, there are about 1/3 fewer journals than in the US, on a per capita basis, and those journals tend to have fewer issues each year.)

  2. Gerard Magliocca says:

    Fewer issues per journal could work. Much like fewer students at the same number of law schools, I suppose.

  3. Igor says:

    It seems to me that this is the kind of “problem” that will be taken care off in due course via natural course, i.e. free market. So long as the number of applicants to law schools remains more or less the same, there is no incentive for law schools to reduce their costs, especially since reducing the number of journals or issues per journal is unlikely to reduce costs significantly enough.

    On the other hand, as Gerard mentioned, many students may be unhappy with the change, and if there is even a small chance of a law school taking a hit in rankings due to reduction in journals, then it further takes away any incentives from law schools to cut back.

    Having said that, Liptak’s article was just awful, mainly because it was so simplistic. It focused exclusively on one metric: how often the articles are cited by the courts. And it’s just a bad metric for many reasons, many of which have been pointed out in this blog and others.

  4. Bruce Boyden says:

    The question of whether blogs substitute for articles is an interesting one. I don’t think they do, content-wise — blog posts tend to be short analyses of current cases and developments, which ironically is what law reviews originally were. But they probably substitute in terms of opportunity costs — more blog posts, all else being equal, I think should lead to fewer articles, i.e. more of a law professor’s scholarly output being devoted to the sorts of issues covered well in blog posts.

  5. Igor says:

    Bruce, I somewhat disagree.

    I agree that blog posts cannot substitute for law reviews, mainly because blog posts are neither thorough, not scholarly.

    Where I disagree is the suggestion that more blog posts should lead to fewer articles. I don’t think this is true, because it assumes that blog posts simply get a bigger share of the pie, rather than expand it. But since blog posts are so fundamentally different from law review articles, they expand the pie, in part by catering to a different audience. In another sense, blog posts can theoretically even increase the amount of law review articles, because some blog posts may suggest interesting topics, to be treated more broadly and deeply in a law review publication.

  6. Charles Paul Hoffman says:

    Building on what Igor said, I would suspect the number of blog posts would ultimately be “deficit neutral” to the number of articles written. Some posts certainly take time away from writing articles, but others contribute to writing. I’ve seen quite a few blawgers (esp. guest blawgers) use their forum as a means of exploring their current research project. While the blog posts might not count as drafts, per se, they can certainly help to flesh out ideas, get feedback from others, etc. The real question is probably whether and to what extent things like blog posts should count for tenure; for that, unfortunately, I think the answer has to be “it depends.”

  7. Orin Kerr says:

    My sense is that blog posts lead to fewer articles. Blogging is surprisingly time-consuming, and there are only so many hours in a day.

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