OpenStax College, an open-access textbook publisher, introduces its first offering through iTunes -- and hopes the $4.99 charge will allow students to benefit from extras and the business model to grow.
With the 2012 presidential campaign complete, the campaign for the Obama presidential library (and to raise money for it) has started, Politico reported. The University of Chicago -- where Obama taught and where Michelle Obama worked -- is considered the favorite. But Politico noted that the University of Hawaii is also making a strong push. Obama was born in Hawaii, his parents met at the university and his sister teaches there.
John G. Browning’s recent essay on Inside Higher Ed fires many of the traditional bullets at student-edited law journals: They are overly theoretical, redundant, costly, and despite being edited by 20-somethings, are clumsily adapted to the digital age. I serve as editor-in-chief of Cardozo Law School’s Journal of Conflict Resolution, apparently one of these outmoded publications. Like most student editors, I’ve become accustomed to reading criticisms like these. Similar sentiments have been published in The New York Times,The Atlantic, and Legal Affairs. Browning is in good company.
Critics have their hearts in the right place. But their arguments are flawed in two ways: First, they dramatically overgeneralize the varied landscape of student-edited legal journals and the articles they publish. Second, critics view the primary mission of law journals as helping appellate judges and practicing lawyers. In fact, students are the primary beneficiaries of law reviews. Practicing lawyers and judges are important audiences too, but not as central as critics claim.
Nailing Down the Complaints
Criticism of law journals, like criticism of lawyers, is a time-honored American tradition. The common argument goes like this: Law journals publish bizarre theoretical pieces that are totally removed from real-world legal practice. As journals proliferate, they are becoming increasingly useless to practicing lawyers, and are failing in their primary mission of influencing judicial opinions. Browning makes his case, like many critics do, by citing some pompous-sounding topics of recently published pieces.
The vision of useless “theory” articles gained traction last year with a comment by U.S. Supreme Court Chief Justice John Roberts: “Pick up a copy of any law review that you see,” he said, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
This system persists, say the critics, because law professors are either innately interested in these abstruse topics or merely write under the pressure of the publish-or-perish system. More cynically, law schools themselves have a secondary incentive for subsidizing law reviews (which often operate at significant financial losses). Schools aim to build their reputations in specialty fields. “Reputation” is often code for the infamous reputational index on U.S. News & World Report -- a ranking of schools’ programs by professors in a particular field. If a school hopes to build its rank in taxation, for example, it might consider creating a tax law journal. Such a journal would allow tax scholars to publish with the school, probably bring such scholars to campus to participate in conferences, and generally increase the reputation of the school among experts in the field.
In short, critics cast law journals as nothing more than vehicles for prestige for schools and tenure for professors.
A Response: All Theory and No Practice?
To start, critics like Browning severely overgeneralize the landscape of law reviews. All student-edited legal publications are lumped together into a monolithically useless heap. In the minds of critics, these journals all publish on obscure theories of legal philosophy and hermeneutics. This is simply not the reality.
Yes, some journals are “theory-heavy”—the Yale Law Journal, William & Mary’s Bill of Rights Journal, and Washington University’s Jurisprudence Review, to name a few. But average law reviews and most specialty journals (journals that focus on particular areas, like real estate or intellectual property) are keenly interested in publishing relevant scholarship. Don’t believe me? Visit a few law journal websites and scroll through their recent tables of contents. Sure, you’ll encounter the occasional oddball pretentious titles. But you’ll also find articles firmly grounded in reality — articles that, as Sherrilyn Ifill of the University of Maryland said, “offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decision-making on how law develops in the courtroom.” Indeed, many law journal articles are written or co-written by practicing attorneys.
My own journal is a good example. We publish exclusively on arbitration, negotiation and mediation—all very practical processes for problem-solving, particularly in a world where the vast majority of cases settle out of court. To the extent that we publish “theory,” the articles discuss innovative designs for new adjudicative or dispute resolution systems.
Another rebuttal. Critics of law reviews complain that we’re failing at our key mission — being cited by appellate courts. Since when is judicial citation our raison d’être? Don’t get me wrong: I fantasize about Justice Kagan going to sleep with a copy of the Journal of Conflict Resolution on her nightstand before hearing a case arising under the Federal Arbitration Act. But contrary to the assertions of critics, I have never met a fellow law journal editor who selects articles for publication solely (or even predominantly) because of the likelihood that a judge somewhere may someday cite it. We choose articles that are thought-provoking and cutting-edge, but not merely because we desire judicial attention.
A corollary point is that law reviews do not necessarily need to be cited by courts in order to aid practicing attorneys. Attorneys facing specific legal situations often search journal databases for a starting point. Articles they discover serve as both invaluable synopses and comprehensive bibliographies of relevant precedents and statutes. That sort of impact is very difficult to measure unless the article itself is cited by a judge. (And since the great majority of cases settle before a judge ever sees them, how reliable a metric are judicial citations anyway?).
Critics underscore the role of law reviews in aiding practicing attorneys. This is surely one of their important functions. But the truth is, journals also exist for the benefit of their student editors. Students hone their legal research and writing skills by doing careful editing, citation formatting, and proposition-checking. They produce their own publishable pieces of original scholarship, usually commentaries on recent cases. Third-year students have the additional experience of managing a large team, controlling a significant budget, and interacting with leading scholars from around the world. Even if no appellate judge ever cites an article, the average student will still have grown tremendously by editing it.
Browning worries that student-edited journals are not useful for practicing attorneys. I disagree. But even adopting his assertion, attorneys still have access to innumerable attorney-edited journals published by bar associations across the country. Student law reviews are not their only resource, or even necessarily their best resource.
A Concession: An Archaic Publishing Process
Browning is absolutely right in one respect: the current model of journal publishing is entirely outdated. (I suspect this is true for non-legal academic journals too). Right now, law reviews submit content to one of the handful of specialized law review publishers. Those publishers print the content and mail our book-like volumes to subscribers. The publisher also sends that content to Westlaw and LexisNexis, the two major online legal research databases. Journals charge a small subscription fee and, sometimes, a content reuse fee if their articles are reprinted in textbooks. West and Lexis charge a great deal more. Most journals operate at a loss.
What is peculiar about this system is that many journals also publish their content as PDFs on their websites. PDFs, of course, are searchable by Google and easily findable through Google Scholar. For free. In the 21st century, I have absolutely no idea why any library or practitioner subscribes to the print edition of any law journal. (Though don’t repeat that to our valued subscribers). And I have absolutely no idea why any law school wastes money subsidizing the cost of printing and mailing them. (Though don’t repeat that to my generous dean).
The answer is probably about competition; no law school wants to be the first to go “online only.” If prestige is truly the obstacle — we are talking about lawyers here — the solution is an industrywide collusion. If deans from a collection of law schools discussed this, perhaps during an Association of American Law Schools (AALS) conference, they could reach a disarmament agreement. Depending on the number of journals a school operates, this shift could easily save five or six figures annually.
As the digital age moves along, law reviews should reject not only print publication, but also the very idea of distinct “volumes” and “issues.” What is an “issue” of a law journal but a collection of articles on a random assortment of current topics? Few issues have a single unifying theme that merits their being bound together in a book format. Law journals should move to a model of rolling deadlines more akin to digital journalism. Scholarship can be published whenever it is ready, and at a much lower cost.
If the goal of law journals is to influence appellate judges in their day-to-day decision-making, perhaps they are failing. But most journals don’t (or shouldn’t) adopt that as their sole metric for success. A better metric is what the students on the journal are gaining from the experience. Journals expose law students to truly complicated, confusing, complex writing. Some of that writing is terrible and pompous, some vivacious and sharp. Some is hackneyed, some is intellectually subversive and trailblazing. Thus, academic legal writing mirrors the mélange of actual writing — i.e., briefs, memos and judicial opinions — that attorneys will encounter throughout their careers.
Journals teach student editors to sharpen complex legal arguments, clarify language, format intricate citations, and work long hours to hone a final product. More sentimentally, the journal process reminds students that no legal doctrine is static. Law is subject to thinking and rethinking, argument and re-argument. Authority can not only be cited but questioned — by smart lawyers, through their writing.
There is so much to fix in modern legal education. Are student-edited law journals really so bad?
Brian Farkas is a third-year student at Cardozo School of Law and editor-in-chief of the Cardozo Journal of Conflict Resolution.
A couple of months ago it occurred to me that having a copy of the Bible on my portable reading device would be convenient, given that citations turn up in even the most secular of texts. And as William Blake wrote near the end of his life, “The Old & New Testaments are the Great Code of Art.” Which is gnomic, like most of his aphorisms, though clearly enough an encouragement to wrestle with “the book of books.”
But acquiring a classic or a public-domain book in an e-format is not so effortless as it may initially seem. Unless you find one with a fully functional table of contents, the frustration outweighs the benefits. It also helps if the text has been inspected by a copy editor at some point in the current century. Until someone invents OMR (optical meaning recognition) software, even a free digital book will seldom be worth the trouble to get. So after all due diligence, I located a good edition of the authorized translation from 1611 (better known as the King James Version) and willingly parted with 99 cents to purchase it.
When the title appeared in my Kindle queue, I saw that the slot indicating the name of the author had also been filled in: God. He has an excellent ear for English prose, to judge by the KJV, and I decided to read the whole thing from beginning to end -- my first serious engagement with the scripture in decades. Despite knowing most of the stories pretty well from childhood, the return has been an experience in constant defamiliarization. At one point, having mulled over the truly puzzling implications of Genesis 6:4 for a bit, I looked up from the screen and told my wife, “This sure is a weird book.”
The best thing about Ronald Hendel’s The Book of Genesis: A Biography (Princeton University Press) is how thoughtfully it acknowledges that strangeness, and gives it its due. Hendel is a professor of religious studies at the University of California at Berkeley and editor of Reading Genesis: Ten Methods (Cambridge University Press, 2010), a collection of essays that I intend to start reading just as soon as this column is out of the way. His new volume appears in the Lives of Great Religious Books series, which uses the biographical mode to synthesize and popularize, at a high level, the scholarship devoted to works from a variety of spiritual traditions.
Half a dozen titles have been published so far, both on scriptural texts (e.g., The Tibetan Book of the Dead and The Book of Mormon) and confessional or theological writings (most recently, Dietrich Bonhoffer’s Letters and Papers from Prison). To write the biography of a book -- portraying it as having, in effect, a personality and a career -- is a literary conceit. But it is a justified and effective one in the case of texts which seem, to a great many of their readers, almost literally alive, or at least integral to understanding life itself.
On that score, no book could be more exemplary than Genesis. “Over the generations,” Hendel writes, “the ways that people have understood Genesis tend to correlate with the ways that people have understood reality. It is not just that Genesis provides an account of the origins of reality -- which it does -- but that the kinds of meaning that people expect to find in Genesis are the same kinds that they expect to find in the outside world.”
And for good reason: “Genesis envisions a single, God-created universe in which human life is limited by the boundaries of knowledge and death. We are earth-bound, intermittently wise, often immoral, mortal creatures.” Within the first few words, the reader will encounter temptation, disobedience, sex, death, violence, and exile. It’s not necessary to believe in the historical reality of a single person named in Genesis -- nor even that God exists, let alone gets byline credit for either Genesis or the universe itself -- to recognize much of this world. De te fabula narrator. The tale is told about you.
For his part, Hendel is telling the story of Genesis – not retelling stories from it. Much like the larger book to which it is an overture, Genesis reads more like an anthology than a single composition. The opening chapters provide two not entirely compatible accounts of how God created the world and mankind. They resemble the creation myths found in Babylonian writings, which also recount a story very similar to the one about Noah and his ark.
And beginning with Chapter 11, the narrative register of Genesis shifts from extremely condensed accounts of vast events (the flood, the Tower of Babel, the birth of giants resulting from “sons of God” hooking up with earth women) to a sprawling multigenerational family saga, complete with minor characters and complicated subplots.
Internal evidence suggests that Genesis -- like the four other books of the Pentateuch, traditionally attributed to Moses -- is the work of at least three groups of writers recording stories and customs that emerged over long periods and sometimes bore only a tangential relationship to one another. Editors later integrated the texts as much as possible, but by no means seamlessly.
On this point, Hendel is not saying anything original, simply presenting a much-condensed account of a line of analysis that has been taking shape over the past 200 years or so. But then he takes things in an intriguing direction. If Genesis is the product of various strands of cultural DNA (spliced together long ago by scribes who believed the literal truth of the material they were helping to transmit, while also needing to reconcile elements that didn’t quite fit together) then the book’s subsequent history is, in a way, encoded in its genome.
Genesis is full of enigmatic passages and unfinished stories. But if a text is the word of God -- the operating assumption of most of its careful students over the most of its history -- the puzzles are meaningful. What look like imperfections are access points to hidden truth. The interpreter has work to do, at high stakes.
And so alongside the literal significance of the text there takes shape a world of supplementary meanings – allegorical, apocalyptic, neo-Platonic, and so forth. All the better for the reader of Hebrew, who could shuffle the consonants in a word around, add some vowels, and come up with something profound -- if not, by nonmystical standards, plausible.
My favorite of the examples of creative rewriting that Hendel cites is how Philo of Alexandria handled the business with Abraham, Sarah, and Hagar. In Genesis 16, we learn that Sarah, being unable to conceive, “gave to her husband” Hagar, her handmaid, to be wife No. 2 and bear him a child.
While one must respect Abraham’s wisdom in not bringing up the idea himself, the whole “exchange of human livestock for breeding” aspect is pretty revolting. But Philo treats it as a Platonic lesson in the “distinction between the ‘preliminary’ sciences – which study the sensible, material world – and philosophy, which studies the higher world of pure being.”
Philo’s allegorical algebra, as explained by Hendel, proves far neater than the situation itself: “The mind (=Abraham) must first be educated in the preliminary sciences (=Hagar); only then is it ready for philosophy and true wisdom (=Sarah).” No more moral ickiness! Q.E.D.
The problem with that sort of analysis is that its creativity will never be limited by questions about the literal meaning of a text, much less doubts about whether or not it is true. In an elegantly understated chapter (another author might have blown the idea up to a book) Hendel brings together Rabelais, Martin Luther, Spinoza, and the great rabbinical commentator Rashi as examples of a countertendency. They rejected interpretive inflation – a first step toward facing questions about the literal truth, moral adequacy, or overall coherence of the text itself.
Questions raised by geology and biology would eventually become critical indeed – with fundamentalism as one product of the crisis, even as Emily Dickinson and Franz Kafka found ways to inhabit the ancient book in ways that restore its true, deep otherness. “Many people don’t read Genesis anymore,” Hendel writes, “which I think is a loss – but we still fight over the meanings and consequences of the stories, and over their myriad interpretations in Western culture.” And his book documenting that truth is something of a revelation in its own right.
A series of conflict-of-interest scandals have led to many attempts to limit the role of the pharmaceutical industry in supporting biomedical research. But an article in The Washington Post says that these ties remain strong and may even be growing, as the pharmaceutical industry has come to support more research than does the federal government. The Post analyzed articles on new drugs that appeared in The New England Journal of Medicine for a one-year period ending in August. Of 73 articles, 60 were funded by a drug company, 50 were co-written by people who worked for drug companies and 37 had lead authors, generally professors, who had in the past received funds from drug companies for consulting, speaking or doing research.
The Association of American University Presses on Friday named Peter Berkery Jr. as its next executive director. Berkery is currently serving as the vice president and publisher of the U.S. law division of Oxford University Press. He has previously worked as a lawyer and as an association official at the National Society of Accountants, the National Paint and Coatings Association, and the American Trucking Association.
“Our university is not a supermarket!” read one of the fliers I saw posted up around the University College London campus while there to attend a conference this past week. It seems that early November is now the official occasion for militant discontent over austerity and higher education, at least in England. Arriving for the same annual conference a year ago, I’d made my way through streets crowded with students demonstrating against budget cuts and privatization, amidst police who were prepared (so a newspaper said the following morning) to use plastic bullets if the crowd got rowdy, as it had during the huge protests against a proposal to lift the cap on tuitions in November 2010.
Fifty thousand people had turned out for that event -- more than twice as many as even the organizers expected – and a few hundred of them decided to occupy the campaign headquarters of the Conservative Party, which they left considerably worse for wear. Elsewhere, another crowd menaced the Prince of Wales and Duchess of Cornwall in their Rolls Royce, which was paint-bombed and its rear window smashed.
That was 2010. Nothing so A Tale of Two Cities-ish took place during the November 2011 march through central London. As for next week -- who knows? The National Union of Students has called for a march through central London on November 21, scheduled to coincide with the weekly questioning of the prime minister by members of the House of Commons. Complaining that the government has been “slashing undergraduate teaching funding, increasing tuition fees, introducing draconian restrictions on international students, cutting funding for post-graduate students, [and] hiking fees for adult learners looking to gain basic skills,” the NUS also points to another worsening situation: nearly a million people in England between the ages of 16 and 24 are currently unemployed. (The International Labour Organization, a United Nations agency, projects rising joblessness among youth to continue as a global trend over the next five years.) The police will probably have their plastic bullets ready next week, come what may.
As slogans go, “Our university is not a supermarket!” impressed me as one that wouldn’t work as a rallying cry in the United States. While Charles Eliot had many sober and lofty reasons for introducing the electives system at Harvard University in the late 19th century, its near-universal adoption throughout undergraduate education in the U.S. surely has more to do with the principle that it’s a good idea to give the customers what they want. (That was a running complaint in the late Jacques Barzun’s reflections on American education, discussed here last month.) It seems that we like our supermarket universities just fine here.
But that's just too cynical, and these are times when we should be ashamed of cynicism rather than proud of it. While writing this, I've gotten word from a philosophy major at Howard University that he and other students will be occupying Alaine Locke Hall on Thursday, November 15, to protest "tuition rates, administrative mistreatment of janitorial staff, and program cuts." These are not the demands of disgruntled consumers, and the protesters are very deliberate about their timing: Thursday is World Philosophy Day.
If their occupation goes on long enough, the students should read a recent volume called What Are Universities For? by Stefan Collini, a professor of intellectual history and English literature at Cambridge University. His Absent Minds: Intellectuals in Britain (Oxford University Press, 2006) is as trenchant and far-flung a work of cultural history as anything I’ve ever read, and some of its qualities also come through in the occasional pieces he has been writing about higher education since the 1980s, many of them gathered in the new book. Published this spring by Penguin, it is available as a paperback in the U.K. and Canada but not in the U.S., though you can order it to read on Kindle.
Much of it is quite specific to British debates over the reform and restructuring of the country’s university system -- and a few of the older pieces (including one called “Bibliometry,” from the late 1980s, on the use of citation statistics as “performance indicators” for scholars’ work) are now period pieces. But his response to the rise of corporate thinking and management-speak in academe is acerbic in ways that have aged well. “I work in the knowledge and human-resources industry,” one piece begins. “My company specializes in two types of product: we manufacture high-quality, multi-skilled units of human capacity; and we produce commercially relevant, cutting-edge new knowledge in user-friendly packages of printed material….Let me put that another way. I’m a university teacher. I teach students and I write books.”
What is there about education and scholarship that gets lost in this sort of "mission statement"-ese? Collini's book is a sustained engagement with that question, but one passage stands out as a memorable formulation of what distinguishes the university from any other institution:
“A university, it may be said, is a protected space in which various forms of useful preparation for life are undertaken in a setting and manner which encourages the students to understand the contingency of any particular packet of knowledge and its interrelations with other, different forms of knowledge. To do this, the teachers themselves need to be engaged in constantly going beyond the confines of the packets of knowledge that they teach, and there is no way to prescribe in advance what will and will not be fruitful ways to do that. Undergraduate education involves exposing students for a while to the experience of enquiry into something in particular, but enquiry which has no external goal other than improving the understanding of that subject matter. One rough and ready distinction between university education and professional training is that education relativizes and constantly calls into question the information which training simply permits.... [Learning of that kind] can only be done through engagement with some particular subject matter, not simply by ingesting a set of abstract propositions about the contingency of knowledge, and the more there already exists and elaborated and sophisticated tradition of enquiry in a particular area, the more demanding and rigorous will be the process of requiring and revising understanding."
Not written with a student demonstration on World Philosophy Day in mind, of course, but it seems fitting.