The Law Reviews: Do Their Paths of Glory Lead but to the Grave?

I. INTRODUCTION Critics of the law review product are legion. The classic statement is from 1936 by Fred Rodell: "There are two things wrong with almost all legal writing. One is its style. The other is its content." (1) The standard law review criticisms have been of excessive article length, an overabundance of footnotes, a lack of publication speed, an overly theoretical emphasis, overediting by students, and a lack of student knowledge sufficient to select and edit articles. In some of these perceived faults authors are complicit, being empowered in their search for prestige by an abundance of law journals (2) competitively hungry for something to publish. But while law reviews have frequently been berated, (3) little has changed, which leads one to wonder if the issues matter all that much, if vested interests are overwhelmingly strong, and if some other system is capable of replacing the one we know as we move further into an online information world. At the time of Rodell's criticism, there were fifty-two general law school reviews in the United States and about forty specialized law journals. (4) The numbers of law journals have robustly grown to the present day. There are now about 200 general print law reviews (together with a dozen online adjunct publications to some of the higher-ranked law reviews) along with over 700 specialized law journals, which is an average net increase of about ten new law journals a year. Additionally there are over 500 English language law journals published outside the United States, many with international coverage. And the growth of journals is not slowing. During the years 2005 to 2007 an average of about twenty U.S. and twenty non-U.S, law journals started publication each year. (5) Today there is a very wide avenue for article publication, with plenty of space for the classics, the trendsetters, and the workhorses to exist side by side. There is also plenty of space for the less desirable vehicles that really needed an overhaul before getting onto the publication highway. Instead of this multiplicity of publications, imagine one database where all legal articles are housed, and where prestige arises from just the author, the writing, and its subsequent treatment, and not from any journal packaging. To date, the preprint database SSRN (6) comes closest to this model. If there were excellent searching, sorting, and ranking tools, with the ability for users to attach comments and evaluation, this type of massive collection has the potential to supersede existing law journals. But the Boolean and proximity searching that exists in LEXIS and Westlaw would not itself be sufficient to enable easy use of such a collection; multiple sorting and ranking options would be needed to substitute for the quality-proxy of journal prestige. With the advantages of a new paradigm for disseminating legal scholarship in mind, this essay examines deficiencies and distinctive features of today's law reviews, suggesting some improvements while also proposing the practicality of a database model to replace law journals entirely. II. PRESTIGE AND RANKING Everyone will agree that the general law reviews at Harvard, Yale, and Columbia are the elite law reviews. (7) Established reputation becomes reinforced by the motivation of authors to publish in prestigious locations, and by readers who suppose the articles best read and cited to be found in those journals. A ranking that allows us to judge an article's quality by the prestige of its packaging is useful in making quick judgments about an author's work. But plainly not everything in Harvard Law Review is great, and much in lesser-ranked journals will be excellent and more appropriate to one's purpose. Assumptions about an article's quality based on its journal placement are superficial yet very practical. If you want to cite a work for background analysis and there are alternative sources available, why cite Houston when you can have Yale, particularly when you haven't very carefully read either? …