Clifford Lynch recently wrote a piece in which he describes the broken promises to libraries surrounding the introduction of e-books. Instead of a cornucopia of books that would be available at lower prices than print and with various new features enabled by digital technology, we have a peculiar situation where many publishers are refusing to sell books to libraries at all, and often when they do indeed sell them, the books are priced higher than their print counterparts and with various new usage restrictions imposed upon them. So the promises of e-books for libraries remain unfulfilled.
Putting aside the question of who made those promises and how they proposed to hold themselves accountable for their fulfillment, Lynch’s comments lead me to wonder if the advent of e-books has been a good or bad thing for university press publishing, a segment in which I have long had a special interest. On balance I would have to say that as dramatic as the introduction of e-books to the academic sector has been, by and large the fortunes of the press world are not appreciably better than they were four years ago -- or six years ago, to begin the count with the launch of the Amazon Kindle, with apologies to Ronald Reagan and his famous (if misleading) four-year formulation. Indeed, university presses seem to be operating under snugger strategic conditions than even a few years ago. E-books haven’t made all that much difference.
Before saying another word, I must make the qualifying remark that there is great diversity among university presses and that generalizations inevitably introduce distortions. The university presses at Cambridge and Oxford are as large as many commercial firms, possess a global footprint, and manage a broad product portfolio. American presses range from under $1 million in revenue to tens of millions; some publish journals while others do not; and some, despite their small size, are healthily profitable. My comments here put Oxford and Cambridge to the side and talk of the other presses in the aggregate -- that is, there may have been winners and losers among them, but what have their fortunes been as a whole?
University presses have a complex business model, unique in the university world as far as I know, that combines earned revenue with various forms of funding that is not derived from the market place. The earned revenue of these publishers is something of a three-legged stool: books, journals and services. Services can take many forms, but the largest service by far is in the distribution of physical goods on behalf of other, smaller presses. Let’s dig into the earned revenue one leg at a time, putting books last.
1. Services. A number of presses distribute books on behalf of other academic publishers, both domestic and international. Historically this has been a good business, as distribution is a game of scale and a small press has anything but scale. This service lowers the cost of distribution to the small-press client (that is, in comparison to having to provide this service for themselves) and provides a profit for the larger press providing the service.
Unfortunately, this activity is now under stress. Sales of printed books are not growing and in many instances are declining. This leads to excess capacity at warehouses and slow-moving inventory (partially offset by the introduction of digital SRP -- short-run printing). On top of this is the entrance into the sector of commercial players, who change the competitive landscape. It is difficult to be optimistic about the long-term prospects for this service.
Presses are also seeking to provide other services, especially digital services, but this will be a steep hill to climb. The problem here is that the competition is everywhere. Do you want to provide print-on-demand services for third parties? Well, you and a dozen other outfits. How about digital asset management, where the provider warehouses digital files that can be accessed and manipulated by clients? Well, you and two dozen other outfits. We needn’t get into file conversion, the creation of ebook apps, or pretty much anything digital. The competition is too keen.
Some presses attempt to provide publishing services to other departments within their institutions. This is a good idea (there is no point in having 20 different people trying to figure out how to convert a PDF to an EPUB file), but the scale is small. Overall, it’s hard to escape the conclusion that income from third-party services will not be an ensured source of funding for presses in the future. And this problem has intensified over the past 4 years–or 6–as print books migrate to digital formats.
2. Journals. Journal publishing over all is a very good business for certain large publishers, and it is still a good business for many university presses. By my estimate, the American presses, taken together, publish about 200 journals; adding Oxford and Cambridge to the mix would add perhaps 600 more. This is out of a universe of approximately 25,000. There is a clear hierarchy in journals publishing. The commercial firms Elsevier, Springer, and John Wiley sit at the top, followed by such firms as Taylor & Francis, Wolters Kluwer, and Sage and the major not-for-profits (e.g., ACS) — and of course Oxford and Cambridge. Below that group are many university presses and professional societies (e.g., AIP, APS). Smaller still are many other professional societies, which may have a tiny portfolio of journals.
The problem for university presses is that the journals business is all about scale and the one thing the presses do not have is scale. Scale permits a publisher to establish a global footprint, to invest in technology, to pay large guarantees to attract professional societies to the roster, and to market the publications into every corner of the marketplace. The journals market is not growing as rapidly as it once did outside of a few notable Gold OA publishers (e.g., PLoS), which in turn has put even greater pressure on publishers to achieve a greater and greater scale, the better to dominate academic library budgets and squeeze out the publications of smaller firms (which are likely in turn to sell out to the larger publishers, thereby increasing the latter publishers’ scale still further, a cycle that is vicious or virtuous depending on which side of the table you sit on).
The race for scale has resulted in the larger publishers poaching the journals formerly handled by many university presses. Thus we have seen a collection of anthropology journals leave the Unviversity of California Press for John Wiley, and Elsevier come bidding for a journal formerly managed by Chicago. Even Oxford is big enough to act as a poacher, sometimes bidding for the publications handled by the smaller presses. Thus the journals segment for university presses (always excepting Oxford and Cambridge) is a less reliable source of income today than it was even a few years ago. Barring a bold new strategy for journals, it is difficult to make a case for growth for any but the largest publishers.
3. Books. What university presses mostly do is publish books. They publish outstanding books and they publish them well. While the book segment is still primarily a print business (about 90 percent), electronic revenue is growing rapidly. There are no presses to my knowledge that are not now publishing ebooks. This is a growth segment, and the presses are understandably proud of it.
Unfortunately, the book business, whether for print or digital works, is a tough one, especially in a segment where some titles may sell as few as 300 copies and a sale of 10,000 copies is a matter of astonishment. The fixed costs of book publishing are simply too high for the small market for scholarly books, and the introduction of ebooks does nothing to whittle away at those fixed costs. Many presses lose money on the sale of books, which in turn puts more pressure to find revenue in the already challenged segments of journals and services.
Another problem for the presses’ foray into ebooks is the dominance of Amazon, which exacts a significant toll from the presses for distribution. Amazon gets more powerful every day and the demands made on tiny scholarly publishers are becoming strident. A dollar taken from the operating margin of a university press is handed over to the shareholders of Amazon, a trend that shows no sign of slowing down. While exceptional editorial talent always finds a way to punch its way through a hostile distribution environment, not all editorial work is exceptional and the energy behind every punch has a cost. Ebooks, in other words, are a good and necessary move for the university press world, but they are not likely by themselves to provide financial stability.
And so all three legs of the three-legged stool are rickety, making the prospects for university press publishing not particularly bright. On the other hand, the prospects are not bleak; the presses continue to earn the bulk of their income from the marketplace (over 90 percent of press budgets are covered by earned income). This contradicts the prevailing narrative, which suggests that university press publishing is doomed, that the presses are losing tons of money, and that only a radical overhaul of the business model can “save” university press publishing. This very point was made to me by a university librarian, who noted that her institution’s press had lost several hundred thousand dollars in the prior year. Good lord, what are we to do? But contrast this with the librarian’s own budget, which entailed a cost to the university of over $30 million. People, some perspective, please! This bringd us back to the point that presses are set up as subsidized profit centers, whereas most university functions are set up as cost centers. Which is the bigger burden to the parent institution, the small subsidy of a profit center or the large budget of a cost center?
Using a yardstick of 4 years -- or 6, or 10 -- we would have to say that the presses’ overall situation has gotten tighter; and we would conclude that the “promise” of e-books (though here again I have to ask who is making these promises) has not meaningfully changed the fortunes of the university press world. This is because electronics are not a strategy; electronics are an enabling technology that has to be put in service to a strategy. If we want to meet Clifford Lynch’s challenge, let’s stand up in front of the whiteboard and do some serious thinking.
As the Obama administration works on a policy to provide free access to taxpayer-funded research, publishers and universities advance competing plans for archives -- but some scholars say a government archive is the way to go.
Submitted by Rob Weir on January 22, 2013 - 3:00am
Stewart Brand is credited with coining the phrase "information wants to be free." In the wake of the suicide of 26-year-old cyber activist Aaron Swartz, we need to re-evaluate that assumption.
Brand, the former editor of The Whole Earth Catalog and a technology early adopter, is a living link between two great surges in what has been labeled "the culture of free": the 1967 Summer of Love and the Age of Information that went supernova in the late 1990s. Each period has stretched the definition of "free."
During the Summer of Love, the Diggers Collective tried to build a money-free enclave in San Francisco’s Haight-Ashbury district. They ran "free" soup kitchens, stores, clinics and concerts. Myth records this as a noble effort that ran aground; history reveals less lofty realities. "Free" was in the eye of the beholder. The Diggers accumulated much of the food, clothing, medicine, and electronic equipment it redistributed by shaking down local merchants like longhaired mob muscle. Local merchants viewed Digger "donations" as a cost of doing business analogous to lost revenue from shoplifting. Somebody paid for the goods; it just wasn’t the Diggers or their clients.
Move the clock forward. Aaron Swartz’s martyr status crystallizes as I type. As the legend grows, Swartz was a brilliant and idealistic young man who dropped out of Stanford and liberated information for the masses until swatted down by multinational corporations, elitist universities, and the government. Faced with the potential of spending decades behind bars for charges related to hacking into JSTOR, a depressed Swartz committed suicide. (In truth, as The Boston Globe has reported, a plea bargain was nearly in place for a four-to-six-month sentence.)
I am sorry that Swartz died, and couldn’t begin to say whether he was chronically depressed, or if his legal woes pushed him over the edge. I do assert, though, that he was no hero. The appropriate label is one he once proudly carried: hacker. Hacking, no matter how principled, is a form of theft.
It’s easy to trivialize what Swartz did because it was just a database of academic articles. I wonder if his supporters would have felt as charitable if he had "freed" bank deposits. His was not an innocent act. The Massachusetts Institute of Technology and the Commonwealth of Massachusetts took the not-unreasonable position that there is a considerable difference between downloading articles from free accounts registered with a university, and purloining 4.8 million documents by splicing into wiring accessed via unauthorized entry into a computer closet. That’s hacking in my book – the moral equivalent of diverting a bank teller with a small transaction whilst a partner ducks behind the counter and liberates the till.
Brand and his contemporaries often parse the definition of free. Taking down barriers and making data easier to exchange is “freeing” in that changing technology makes access broader and cheaper to deliver. Alas, many young people don’t distinguish between "freeing" and "free." Many of my undergrads think nearly all information should come at no cost – free online education, free movies, free music, free software, free video games…. Many justify this as Swartz did: that the value of ideas and culture is artificially inflated by info robber barons.
They’re happy to out the villains: entrenched university administrations, Hollywood producers, Netflix, the Big Three record labels, Amazon, Microsoft, Nintendo, Sega…. I recently had a student pulled from my class and arrested for illegal music downloading. He was considerably less worried than Swartz and pronounced, "I fundamentally don’t believe anyone should ever have to pay for music." This, mind you, after I shared tales of folk musicians and independent artists that can’t live by their art unless they can sell it.
Sorry, but this mentality is wrong. Equally misguided are those who, like Swartz before his death, seek to scuttle the Stop Online Piracy Act and the Protect Intellectual Property Act. Are these perfect bills? No. Do they protect big corporations, but do little to shelter the proverbial small fish? Yes. Do we need a larger political debate about the way in which conglomeration has stifled innovation and competition? Book me a front-row seat for that donnybrook. Are consumers of everything from music to access to academic articles being price gouged? Probably. But the immediate possibility of living in a world in which everything is literally free is as likely as the discovery of unicorns grazing on the Big Rock Candy Mountain.
Let’s turn to JSTOR, the object of Swartz’s most recent hijinks. (He was a repeat offender.) JSTOR isn’t popular among librarians seeking subscription money, or those called upon to pay for access to an article (which is almost no one with a university account who doesn’t rewire the network). Many wonder why money accrues to those whose only "creation" is to aggregate the labor of others, especially when some form of taxpayer money underwrote many of the articles. That’s a legitimate concern, but defending Swartz’s method elevates vigilantism above the rules of law and reason. More to the point, reckless "liberation" often does more harm than good.
JSTOR charges university libraries a king’s ransom for its services. Still, few libraries could subscribe to JSTOR’s 1,400 journals more cheaply. (Nor do many have the space to store the physical copies.) The institutional costs for top journals are pricey. Go to the Oxford University Website and you’ll find that very few can be secured for under $200 per volume, and several are over $2,000. One must ultimately confront a question ignored by the culture of free: Why does information cost so much?
Short answer: Because journals don’t grow on trees. It’s intoxicating to think that information can be figuratively and literally free, until one assembles an actual journal. I don’t care how you do it; it’s going to cost you.
I’m the associate editor of a very small journal in the academic pond. We still offer print journals, which entails thousands of dollars in printing and mailing costs for each issue. Fine, you say, print is dead. Produce an e-journal. Would that be "free?" Our editor is a full-time academic. She can only put in the hours needed to sift articles, farm them out for expert review, send accepted articles to copy editors, forward copy to a designer, and get the journal to subscribers because her university gives her a course reduction each semester. That’s real money; it costs her department thousands of dollars to replace her courses. Design, copy editing, and advertising fees must be paid, and a few small stipends are doled out. Without violating confidentiality I can attest that even a modest journal is expensive to produce. You can’t just give it away, because subscribers pick up the tab for everything that can’t be bartered.
Could you do this free online with no membership base? Sure – with a team of editors, designers, and Web gurus that don’t want to get paid for the countless hours they will devote to each issue. Do you believe enough in the culture of free to devote your life to uncompensated toil? (Careful: The Diggers don’t operate those free stores anymore.) By the way, if you want anyone to read your journal, you’ll give it to JSTOR or some other aggregator. Unless, of course, you can drum up lots of free advertising.
The way forward in the Age of Information begins with an honest assessment of the hidden costs within the culture of free. I suggest we retire the sexy-but-hollow phrase “information wants to be free" and resurrect this one: "There’s no such thing as a free lunch." And for hackers and info thieves, here’s one from my days as a social worker: "If you can’t do the time, don’t do the crime."
Rob Weir teaches history at Smith College. He is the author of Inside Higher Ed's "Instant Mentor" career advice column.
I don’t think there’s much more to say about Aaron Swartz. I didn’t know him personally, but like many others I am a beneficiary of the work he did. And I have agreed for much of my life as an academic with the thinking that led him to his fateful act in a closet at the Massachusetts Institute of Technology. Most centrally, that there are several ethical imperatives that should make everything that JSTOR (or any comparable bundling of scholarly publication) holds freely available to everyone: much of that work was underwritten directly or indirectly by public funds, the transformative impact of open access on inequality is already well-documented, and it's in keeping with the obligations and values that scholars allege to be central to their work.
Blame is coming down heavy on MIT and JSTOR, both of which were at pains to distance themselves from the legal persecution of Swartz even before news of his suicide broke, particularly JSTOR, which very early on asked that Swartz not be prosecuted. Blame is coming down even more heavily, as it should, on federal prosecutors who have been spewing a load of spurious garbage about the case for over a year. They had discretion and they abused it grievously in an era when vast webs of destructive and criminal activities have been discretionarily ignored if they stem from powerful men and powerful institutions. They chose to be Inspector Javert, chasing down Swartz over a loaf of bread.
But if we’re talking blame, then there’s a diffuse blame that ought to be conferred. In a way, it’s odd that MIT should have been the bagman for the ancien regime: its online presence and institutional thinking about digitization have otherwise been quite forward-thinking in many respects. If MIT allowed itself to be used by federal prosecutors looking to put an intellectual property head on a pike, that is less an extraordinary gesture by MIT and more a reflection of the academic default.
I’ve been frustrated for years, like other scholars and faculty members who take an interest in these issues, at the remarkable lassitude of academia as a whole toward publication, intellectual property and digitization. Faculty who tell me passionately about their commitment to social justice either are indifferent to these concerns or are sometimes supportive of the old order. They defend the ghastly proposition that universities (and governments) should continue to subsidize the production of scholarship that is then donated to for-profit publishers who then charge high prices to loan that work back to the institutions that subsidized its creation, and the corollary, demanded by those publishers, that the circulation of such work should be limited to those who pay those prices.
Print was expensive, print was specialized, and back in the age of print, what choice did we have? We have a choice now. Everything, everything, about the production of scholarship can be supported by consortial funds within academe. The major added value is provided by scholars, again largely for free, in the work of peer review. We could put the publishers who refuse to be partners in an open world of inquiry out of business tomorrow, and the only cost to academics would be the loss of some names for journals. Every journal we have can just have another name and be essentially the same thing. Every intellectual, every academic, every reader, every curious mind that wants to read scholarly work could be reading it tomorrow if they had access to a basic Internet connection, wherever they are in the world. Which is what we say we want.
I once had a colleague tell me a decade ago that this shift wouldn’t be a positive development because there’s a digital divide, that not everyone has access to digital devices, especially in the developing world. I asked this colleague, whose work is focused on the U.S., if she knew anything about the costs and problems that print imposed on libraries and archives and universities around the world, and of course she didn’t. Digitized scholarship can’t be lost or stolen the way that print can be, it doesn’t have to be mailed, it doesn’t have to have physical storage, it can’t be eaten by termites, it can’t get mold on it. If it were freed from the grasp of the publishers who charge insane prices for it, it could be disseminated for comparatively small costs to any institution or reader who wants access. Collections can be uniformly large everywhere that there’s a connection: what I can read and research, a colleague in Nairobi or Beijing or Moscow or São Paulo can read and research, unless their government (or mine) interferes. That simply couldn’t be in the age of print. Collections can support hundreds or thousands of simultaneous readers rather than just the one who has something checked out. I love the materiality of books, too, but on these kinds of issues, there’s no comparison. And no justification.
The major thing that stands in the way of the potentiality of this change is the passivity of scholars themselves. Aaron Swartz’s action, and its consequences, had as much to do with that generalized indifference as it did with any specific institution or organization. Not all culture needs to be open, and not all intellectual property claims are spurious. But scholarship should be and could be different, and has a claim to difference deep in its alleged values. There should be nothing that stops us from achieving the simplest thing that Swartz was asking of us, right now, in memory of him.
Timothy Burke is professor of history at Swarthmore College.
After a successful pilot, JSTOR is launching its Register & Read program, which lets anyone read up to three articles from 1,200 of its journals every two weeks in exchange for demographic information.
A scholar committed to the digital humanities once summed up his long-term strategy for winning their acceptance with a terse, sardonic comment. “We will advance,” he said, “funeral by funeral.” It's the kind of sentiment that's often felt, but seldom so well expressed -- or so brutally.
But assuming that time is on digital culture’s side also tempts fate. The humanities include bodies of knowledge that have developed over periods ranging from a decade to a couple of millennia and more. Digital technologies can emerge and eclipse one another in the time it takes to write a single monograph. The wisdom of reorganizing one around the other is at least questionable.
A paper in the December issue of Literary & Linguistic Computing called “Toward Modeling the Social Edition: An Approach to Understanding the Electronic Scholarly Edition in the Context of New and Emerging Social Media” manages to be forward-looking but not triumphalistic. It also poses the interesting question of whether the turnover in the stock of digital tools might actually have a productive relationship with long-established ways that scholarly communities engage with their primary sources.
The list of its authors is headed up by Ray Siemens and Meagan Timney, both of the Electronic Textual Cultures Laboratory at the University of Victoria, in British Columbia. It includes, as appendices, a couple of substantial bibliographical essays that were posted online a couple of months before the paper itself was published. Siemens et al. have been venturing the concept of the “social edition” for at least a couple of years. At this point, it still refers to something potential or emergent, rather than fully realized: a speculation more than a blueprint.
But the paper offers a logical extrapolation from existing trends -- a plausible glimpse of the shape of things to come. Siemens and his colleagues point out that there is a gap between how electronic editions of texts are prepared, on the one hand, and how scholars use the available technology, on the other. “The types of electronic scholarly editions we see prominently today,” they write, “were largely developed before the ubiquity of the web that we now enjoy and do not accurately reflect the full range of useful possibilities present for academic engagement and interaction around the textual materials that are our focus.”
At the same time, gaining legitimacy for electronic editions has for a long time meant adhering fairly closely to established formats for definitive editions of texts. Siemens and his coauthors sketch a typology that begins with material prepared more or less along the lines of a scholarly edition in print, with its features made available in slightly different form. The reader of such a “dynamic text” could click around to find annotations, variant readings, cross-references, and so on.
Subsequent formats for scholarly e-texts incorporated links to pertinent primary and secondary sources -- whether as part of the edition itself or elsewhere online. This meant, in effect, grafting a good research library onto the text. The edition would reflect the state of the existing scholarship – or the state of the editors’ scholarship while preparing it, in any event.
Just when the later species of “hypertextual” and “dynamic” scholarly e-editions arrived on the scene is not indicated, but probably not much later than the early ’00s, to go by the authors’ descriptions. In the meantime we’ve had the arrival, for good and for ill, of social media, which have insinuated themselves into academic communication so extensively that it’s easy to overlook their ubiquity.
Hence the emerging potential for the “social edition” -- which, if I’m following the argument correctly, is not some newfangled travesty of established protocols for preparing important texts. It doesn’t mean tweeting Being and Time, though someone is bound to do so, sooner or later.
Rather, the social edition would offer the same features available from earlier scholarly editions of e-texts (glosses, links to appropriate material, etc.) while also acknowledging the ongoing nature of serious engagement with the material so preserved and annotated. The participants in preparing a social edition would generate commentary and analysis; help compile and update the bibliography; and create “folksonomic” tags (as when you use Delicious to store and categorize the link for an article you want to cite later).
“The initial, primary editor,” Siemens and company write, would serve “as facilitator, rather than progenitor, of textual knowledge creation…. Relying on dynamic knowledge building and privileging process over end result, [the social edition’s] expansive structure offers new scholarly workflows and hermeneutical methods that build, well, on what we already do.”
That last point is particularly significant. For one thing, scholars are already using social media – group bookmarks, blogs, etc. -- to share references and ideas. (The paper and its appendices identify an enormous array of them.) But more importantly, such tools are increasingly experienced by those using them “as natural extensions of the way in which they had always carried out their work.”
Novelty, then, is not the issue. “The core of activities traditionally involved in humanities scholarship,” the authors say, “have altered very little since the professionalization of academic study during the nineteenth century.” And those basic activities (finding texts, comparing and analyzing them, circulating them, etc.) are finally collaborative, or at least dialogical. A social edition will presumably foreground that reality, assuming one wriggles up on shore sometime soon, breathing air and able to find funding.
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.