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Laboratory for Legal Scholarship

May 19, 2011

In the world of legal scholarship, Ross E. Davies is a serial entrepreneur. The George Mason University law professor was one of the founders of The Green Bag, which sought to make short, topical legal writing both cool and tenure-able. Since its founding in 1997, the journal has spawned progeny serious (collections of "in chamber" opinions by Supreme Court justices), lighthearted (bobblehead dolls and trading cards of same), and controversial (its own law school rankings).

Because The Green Bag has sought to extend the boundaries of what counts as legal scholarship, and succeeded by many measures, it and Davies have become flames to which similarly entrepreneurial and intellectually curious legal scholars are often drawn with their own ideas -- "The Green Bag should do this," Davies says he is often told by purveyors of such ideas.

While many things would seem to fit within the original journal's iconoclastic approach (the most recent issue included articles on Rhode Island's rules of evidence and correspondence revealing one lawyer's attempt to help a sixth-grade class win the rights to stage Roald Dahl's Charlie and the Chocolate Factory), some of the ideas are distinctive enough in their content or form that they would take The Green Bag too far afield from its own mission, Davies says.

But rather than turn its back on potential innovators, The Green Bag hopes to use its hard-earned influence and (modest) resources to incubate them, through the creation of a new entity, The Journal of Law. The publication is less a traditional journal itself, really, than a little holding company designed to nurture a series of would-be journals. In the introduction to the journal's first issue, Davies compares the new enterprise to a business school incubator for legal intellectuals, offering "friendly, small-scale, in-kind support for promising, unconventional ideas for which (a) there might be a market, but (b) there is not yet backing among established, deep-pocketed powers-that-be."

While there are many law reviews (more than 200, by this count), on many different topics, there is relatively little variation among them in form; the legal academy, Davies notes in the introduction, is generally uncomfortable with what he calls "funny-looking scholarship" -- content that does not hew to the conventional law review article format of tens of thousands of words of theory or analysis (with scores of footnotes), written under the byline of an established law professor or practitioner.

The first issue offers a taste of the ways in which The Journal of Law will differ from traditional legal publications, offering three journals, each in its own way representing a break from standard law journal fare in their own ways.

The Experiments

The lightest, by far, in tone and intellectual heft, is The Congressional Record, FantasyLaw Edition, a student-edited journal that, as the "fantasy" in its name might signal for some (think fantasy football), allows interested parties to track the legislative (and other) activities of a self-selected team of members of Congress. Legislators earn points for their owners when they introduce bills (extra points for those that actually pass), vote against the vast majority of their party colleagues, and appear on the Sunday morning talk shows -- or on "The Daily Show."

Okay, so maybe it isn't surprising that no other law journal has ever found room for an unusual enterprise like The Congressional Record, FantasyLaw Edition, which might be a stretch to characterize as scholarly work. But the other two experiments in The Journal of Law's first issue try to stretch the boundaries of traditional legal scholarship in more substantive ways.

Law & Commentary aims to turn the definition of peer review upside down. At traditional law reviews, like many other scholarly journals, scholars submit their articles in hopes of getting published, and teams of (often senior) scholars review the work and decide whether it is worthy of publication.

Law & Commentary works the other way, as Davies describes in his introduction to the journal. Senior legal scholars identify an as-yet-unpublished article by a junior scholar (in their field or at their law school) that they think is excellent yet -- for whatever reasons -- is unlikely to gain a sufficiently high-profile spot in an appropriate, traditional journal. (Davies concedes that "[n]o one is going to turn down placement in a top student- or faculty-edited law journal in favor of Law & Commentary," given how the rewards of the faculty tenure and promotion process are structured. "Law & Commentary is, one might say, the journal of error-correction in article selection -- a home for articles that should be appearing in the top journals but for some reason unrelated to the quality of the work are not.")

When Law & Commentary decides that a submission "measures up to internal standards," Davies writes, its editors will send the article to senior scholars in relevant fields, asking them -- if they think it is "an excellent piece of legal scholarship" -- to write a short essay saying why, noting how it could be improved, and stating their own views on the subject of the essay. (An approached scholar who does not like the essay "need not explain why, unless you want to, in which case we will keep your comments confidential.")

This is where the twist on traditional peer review comes in, Davies writes. "If two senior scholars with sterling qualifications invest in evaluating an article, and then do the serious though relatively small-scale work they are invited to perform," that should say a great deal about the work's quality. "On the other hand, if we cannot come up with two suitable scholars who are willing to make the investment, that is a pretty good sign that the article, though possibly quite good, is not quite right for Law & Commentary."

The staying power of Law & Commentary will depend in part, says Kate Stith, a Yale University law professor and member of the Journal of Law's editorial board, on the extent to which senior scholars "understand they have a professional obligation to mentor the young." Its first issue makes her optimistic: It features two of the biggest names in Constitutional law, Yale University's Bruce Ackerman and Sanford Levinson of the University of Texas at Austin, commenting on an essay about Supreme Court jurisprudence on race by Stuart Chinn, an accomplished assistant professor at the University of Oregon.

The third and most ambitious experiment in the first issue of The Journal of Law is Pub. L. Misc., which its authors, a law professor and a litigator, characterize as an effort to expand the definition of venues in which Constitutional law, and Constitutional values and principles, are debated and shaped. The journal hope to focus on "extra-judicial Constitutionalism," as they call it, by publishing and drawing scholarly attention to documents that are produced not by courts but in the other two branches of government -- letters from federal agencies to members of Congress (and vice versa), briefs filed by state attorneys general, and the like.

"Courts are a very important part of our legal system, of course, but they are not the exclusive instruments of it," says James C. Ho, a partner at Gibson, Dunn & Crutcher, former solicitor general of Texas, and co-founder of the project. Yet the study of Constitutional law -- in law school curriculums, and in the realm of legal scholarship -- is "incredibly court-focused," says his colleague, Trevor W. Morrison, a law professor at Columbia University. "Virtually every page of virtually every Constitutional law case book focuses on court rulings."

A major reason why that's so, they say, is that many of the documents that can be seen as influential in shaping Constitutional law and therefore might be worthy of study are not collected. The Congressional Record gathers debates on the Senate and House floors, and the White House publishes all opinions issued by its Office of Legal Counsel. But other, less visible forms of other documents are hard to find.

That's what Ho and Morrison aim to begin remedying with Pub. L. Misc., by publishing selected, "significant constitutional documents generated by the Article I and II branches of our nation’s government (and, where appropriate, their counterparts in states and localities)," they write in their introduction to the first issue.

That first issue uses the Obama administration's decision last winter to stop defending the Defense of Marriage Act to take a historical look at how and when presidents have opined about the constitutionality of federal laws. It includes a Clinton administration document on the "duty to defend" a federal law, and a President George W. Bush administration document regarding presidential signing statements, as well as letters to Congress from two state attorneys general challenging the constitutionality of the Defense of Marriage Act and an amicus brief filed by other state attorneys general supporting the law.

Morrison calls Pub. L. Misc. "one of those ideas that, after it has been come up with, you think, there is no good excuse for why it didn't already exist." But "neither of us would have just created an entirely new law journal from scratch," Ho chimes in, crediting Davies with having both the operational track record and the entrepreneurial gumption to encourage those with innovative ideas to take the leap.

"This has happened very much because Ross has provided this very interesting forum that makes it user-friendly for ideas like this," Ho says. Davies, in turn, says he hopes Pub. L. Misc. will "be in The Journal of Law for a couple of years, and then some think tank that specializes in the legislative process will say, 'This is a good idea,' and they can take it public."

As inclined as Davies might be to bend conventions, there is one that he is unwilling to break with The Journal of Law (at least for now): the expectation that law journals are published in print. "At first blush this commitment to old-fashioned print might seem an odd choice for a publication so amply supplied with self-congratulatory feeling about its innovative tendencies," he writes with typical self-effacing humor.

But in an era in which "there are still powerful links between scholarly respectability and ink-on-paper publication," Davies adds, The Journal of Law's desire to operate "as much like a traditional law review as possible ... to leave the editors of our journals as much latitude as possible to push boundaries in other directions" necessitates its appearance in print, at least for the time being. Unlike The Green Bag, though, the print version is available "only as a gift distributed to individuals and institutions selected by the editors."

 

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