From the perspective of academics in non-legal disciplines, these words caps may seem absurdly generous. Most peer-review journals won’t accept articles over 10,000 words. And, to be clear, these limits are ceilings. Most law reviews regularly publish “essays”—really just normal length articles—that are far below these numbers.

One would think that this is all relatively uncontroversial and rather long overdue. And there has been some positive feedback from legal bloggers. Orin Kerr quotes the Joint Statement rather approvingly, and Larry Solum gives it a characteristic very interesting!

Reactions elsewhere have been more critical. At the Conglomerate, Victor Fleischer (UCLA Law) argues that law review articles have to be long because student editors aren’t educated enough to understand them without lengthy introductions. This view is echoed by Stephen Bainbridge (here) and also Solum (here).

A few responses:

First, it is obvious that law students are not competent to evaluate certain types of articles. Many law professors who lack specialization in the relevant fields would be equally incompetent. But that can’t explain why law review articles average more than 30,000 words. Even if you write a 10,000 word introduction (the length of the introductory chapter for my doctoral dissertation), that leaves you with 20-30,000 words to make an argument. That’s two or three times the length of articles published in other fields.

Second, it doesn’t take 10,000 words to situate an article. Most articles, including technical pieces, just don’t need that kind of set-up. What’s more, a lengthy introduction won’t be of much use to an editor in evaluating the contribution of the article. And editors know that. They consult with faculty on articles that appear well-written but that they don’t fully understand.

Third, if an article is very technical, then it probably doesn’t belong in a general law review. There are specialized journals, some of which are even peer reviewed, that are more appropriate venues for publication.

Another canard regarding article length: student editors balloon articles with footnotes. This may have been true in the past, and I’m willing to assign some of the blame to student editors who are footnote happy. At this point, though, faculty should hold editors to word length policies by resisting the addition of notes where they aren’t necessary. If anything, the Joint Statement should provided additional leverage on this front. That’s assuming, however, that students are primarily responsible for ridiculously long footnotes. And I’m increasingly skeptical about that. I’ve spent the last year watching editors at Virginia attempt to cut footnotes (especially those with massively redundant citations). Their efforts have met with strong resistance from some authors. Once you’ve invested in so much work researching an article, and once you’ve written it up, it’s hard to let things go. I’m sure there is enough blame here to go around, but, as I’ve argued before explanations for the extraordinary length of law review articles are not confined to the predilections of student editors.

The Joint Statement should go a long way toward debunking the idea that student editors prefer more “substantial” articles. It’s just not true. We would much rather publish shorter pieces that make their points and move on. There is a change of thinking that has happened about all this. It has been taking place for a few years now. The Joint Statement reflects that change, as do the policies of the journals mentioned above. A lot of deliberation went into that announcement. It isn’t easy to coordinate between the leading journals of a dozen of the leading law schools. That they were able to come together on this issue should be some indication of how pervasive the problem is and how resolute the journal editors are in meeting it.

Hunter’s basic position is that law reviews should permit and indeed encourage authors to self-publish. Journals should also make articles available on-line for free consumption. I’m generally sympathetic to this position. I’ve only published one paper (forgive the shameless plug), but it’s not easy to get access to it. It’d certainly be nice if everyone could read it for free. But I’ve also spent most of the last year working for a law review, and, from the perspective of a student editor, I think Hunter’s criticisms are somewhat harsh. I also think he underestimates the long-term costs of doing business—even on-line. What follows is a first pass at Hunter’s argument. I put these thoughts forward tentatively, and I hope they’ll be received that way. I think Hunter’s paper is important and provocative. It raises lots of interesting questions about what (legal) academic publishing should be like, especially in a paper-free world. But those questions appear to me far more open than Hunter sometimes suggests.

First, to show that there is, in fact, a problem with restrictive access in law review publishing, Hunter presents some survey evidence to suggest that law reviews don’t already publish their articles on-line or allow professors to post on SSRN. From what I’ve learned about law reviews over the last two years, I’m generally skeptical about Hunter’s survey. As new as these issues are, there is likely to be considerable flux in the positions of many, if not most, law reviews. First, although it is celebrating its tenth anniversary, SSRN has only recently (within the last couple years) come into its own as the primary means of self-publishing in legal academia. Law students—and indeed the faculty who teach them—are just beginning to appreciate its importance. In this regard, Hunter’s article may help to raise awareness, which indeed is its stated purpose. Second, Hunter presents little evidence indicating that top journals pose a serious obstacle to posting on SSRN. One would expect a much larger outcry from faculty if the problem were as serious as Hunter says it is. But I suspect that, at this point, most reviews don’t object much, if at all, to authors who want to self-publish. (And I’ve never heard of a law review asking a professor to remove an article from his or her own website—although I’d be interested to know if there are such cases.) Third, as for publishing their own material on-line, many journals simply haven’t devoted the resources to on-line publishing. I would venture that this is a matter of institutional neglect rather than an effort to stymie access. It’s not that student editors are trying to restrict access to articles (although some might). They just don’t have the money, time, or technical ability to meet demands of on-line publishing and archiving. Where Hunter sees a malicious network of greedy commercial databases and complicit law reviews, my hunch—and that’s all it is right now—is that law reviews simply lag behind in technological development. After all, most law reviews are student organizations with very little institutional memory, low funds, and enormous paper-publishing responsibilities. As professional as their product may be, these are not paid organizations. (So it might help to lighten up on the criticism some.) Many reviews are facing the issue of open access for the first time, and I have little doubt that they will make important adjustments. But professors and the academic community still expect a professional hard copy journal—and on time.

Here I might note that, for the most part, this generation of students could care less whether something appears in print. We’d happily move to a paper-free world.[2] But the fact is that many, if not most, legal academics are still unwilling to accept offers from journals that publish exclusively on-line. This will no doubt change in the near future. But, as I argued in response to Posner, the criticisms here are somewhat misdirected. After repeatedly informing us about his anger toward the California Law Review, Hunter offers some polite suggestions about what legal academics and law schools should do to make open access possible. Academics shouldn’t sign copyright agreements that are restrictive; they should post their papers on-line; and “deans, faculty and law librarians should begin discussing open access amongst themselves and with their law review.” Since the bulk of costs to law reviews stems from their printing responsibilities, I find it rather strange that Hunter isn’t also angry with his fellow academics about their unwillingness to publish on-line and only on-line. Certainly, this is one of the greatest obstacles to the Revolution. Instead of framing the issue almost entirely in terms of what law reviews must do, it might help to start by asking legal academics to give up the paper-fetish. Here’s a start: no more off-prints.

Up to this point, I haven’t really addressed Hunter’s main arguments for open access legal publishing. I’ve just tried to put things in a slightly different perspective. Insofar as Hunter is arguing that law reviews should permit authors to post their work on SSRN, I think his article will probably be obsolete before it is published. But the long-term effects of an open access policy, and its sustainability, are a different matter. As Hunter notes, the major objection from law reviews is that open access destroys their source of funding from commercial databases and subscriptions. Hunter has two responses:

1. There is no substitution effect from open access publishing. SSRN is not in competition with commercial databases. The fact that people download from SSRN doesn’t pose a threat to the interests of commercial databases, and so it doesn’t pose a threat to the law reviews that rely on those databases for revenue. So law reviews will not lose income by allowing open access. If law reviews think there is some danger here in loss of funding, it is only because they have been duped by Lexis or Westlaw.

2. Even if law reviews lose income, law schools or authors should pay the relatively small costs of open access publishing. Public access to scholarship is sufficiently valuable, and sufficiently in line with other interests (mainly reputational) of law schools and law reviews, that they should foot the bill if it turns out that open access diminishes commercial returns.

In short, law reviews won’t lose any money, and, even if they do, law schools should pay the costs of publication. I’d like to think that both of these claims are true, but I’m not fully convinced by Hunter’s arguments for them.

1. Perhaps law reviews will continue to make money from commercial databases because of low or non-existent substitution effects. But as search technologies improve, it is also likely that competition from open access publishing will increase. I’m also not convinced that some level of competition isn’t already in place. I would guess that most hits on SSRN for legal papers are by law professors, law students, or other academics and bloggers. Those sufficiently sophisticated to access SSRN also probably have relatively easy access to commercial databases (though I might be wrong about that). They use SSRN instead because it’s more convenient, because they saw the paper there first, or because they’ve linked to the paper from a source on-line. Furthermore, people who read papers on SSRN don’t usually re-read them in their canonical form. So I think, in the long term, there is real competition from SSRN. It may not be serious now, but I doubt Lexis and Westlaw have misunderstood the threat.

2. Hunter argues that even if open access has costs, law schools should pay them. Given that law professors have the most to gain from publication, one might think that they should pay for publication. One can imagine an argument like the following: the salaries of law professors at top schools are vastly disproportionate to those of other academics in other non-professional disciplines. Even considering the costs of education, law professors have significantly greater incomes over their tenures. They can reasonably be expected to pay for their share of publication costs. I’m not sure Hunter would disagree with this proposal. In exchange for law reviews granting open access, law faculties should enter into long-term contracts to guarantee their funding. But is this a good idea? Is it a good idea for those being published to control the purse strings of those doing the publishing? Since law reviews aren’t peer reviewed, I think financial independence is important. But even where peer review exists, there ought to be some level of insulation.

Another point: I would expect libertarians to raise an objection here. In effect, Hunter is proposing that legal institutions pay for publication costs, if there are any. For public institutions, this means the taxpayer gets the bill (or, I suppose, funding comes out of the salary of the faculty). The question becomes: should legal academic publishing be publicly financed for the purpose of providing open access? I don’t have any philosophical problems with answering “yes.” But I’m not sure it’s such an easy case for libertarians.

Hunter’s likely response would be that taxpayers already pay for access because they pay for subscriptions to journals. If access were free, then they wouldn’t have to pay for (on-line) subscriptions. Assume, for the moment, that without such subscriptions, law reviews also wouldn’t make any money. Law schools would have to pay the entire costs of publication. This situation seems open to free-riding. Everyone would have access, but only those who publish will pay. Maybe reputational costs will drive law schools to subsidize journals, but I’m not sure they’ll fund the diversity of journals that currently exists. That might not be a bad thing. Some people think there are currently too many law journals. But Hunter favors the widest possible dissemination of ideas, and a reduction in the number and diversity of journals should be unwelcome news. As things stand, many top-tier journals are financially self-sufficient. This makes it possible for law schools to fund numerous other journals. If all law schools had to fund all journals, some of those schools would probably consolidate their efforts to produce a quality flagship journal. They might decide that less prestigious journals simply aren’t worth the money. This would produce an overall reduction in published scholarship. This is all highly speculative, but I’m not sure it’s any more speculative than Hunter’s claims about what the world would be like under open access. If we assume that law reviews remain a significant part of publishing in legal academia, we need to know more about the actual costs of publication—even in a paper-free world. And it would help to begin theorizing in non-ideal terms about what it would be like for law schools to have nearly complete control over the financing of the institutions that publish the ideas they produce.

fn1. Actually, I’m not sure it’s true that, as Hunter says, “Scholars seek the widest possible distribution and impact of scholarly work” (p. 7). Or at least that is not all that they seek. Another plausible hypothesis is that legal academics are interested in the widest possible dissemination of their ideas to those who (they think) are in a position to appreciate their ideas and (perhaps?) enhance their reputations. If you don’t think this is the case, consider X, who is faced with the following publishing opportunity: (a) X can publish with journal J1 which has the highest possible reputational value but a significantly lower readership, or X can publish with journal J2, which has medium or low reputation value but significantly larger readership. Is it obvious X chooses option (b)? Maybe reputational value and size of readership track each other, but that is not always the case. It won’t be where reputation is based on demonstrating technical expertise to a small audience of elite scholars. (Consider the fact that law professors are much more likely to write law review articles that span hundreds of pages, rather than books or popular articles that might disseminate their most important ideas to much larger audiences.)

fn2. See, for example, the Virginia Journal of Law & Technology (VJOLT), which publishes exclusively on-line and is a great example of open access publishing. It’s also worth noting that VJOLT is supported by authors and readers who are more likely to see the value of publishing exclusively on-line. In that sense, they’re in the vanguard of legal publishing. It would be interesting to know more about how their funding is structured.

Before continuing, a couple disclaimers: first, although I currently work for, and indeed help to manage, a student-edited law review, the views expressed are solely my own. I do not pretend to represent the views of my law review or any of its members.

Second, in addition to being an editor on a law review, I am also part of what Posner calls “the rarefied set of Ph.D.s who go to law school for a J.D.” (I don’t pretend to speak for any of them either.) I don’t think having a doctorate gives me any special expertise in my capacity as an editor at the journal. But it probably explains my strong sympathy for Posner’s claim that legal academia should move to a peer review system.

I think most reflective law students recognize the advantages of a peer review system and understand the many absurdities of the system in which they work. But they do their best, and they deserve some recognition for trying to improve legal scholarship. The students who inherit this system are under a lot of pressure to participate in it if they want to remain competitive. They are only in positions of power on law reviews for a very short time, and, once they enter those positions, their work load is tremendous. They are also understandably concerned about upholding the reputations of their respective institutions and the law schools with which they are affiliated. From my experience, students perform their jobs admirably. Nothing I say here should put their commitment to quality scholarship in question.

With those disclaimers, here are some thoughts on Posner’s criticisms:

1. Posner spends too much time blaming law students for not being educated or experienced enough to recognize good articles and improve them. He should have spent his allotted space blaming tenured faculty for not doing enough to change the current system. Towards the end of his article, Posner says, “One would like to see the law schools ‘take back’ their law reviews, assigning editorial responsibilities to members of the faculty.” That sentence is conveniently vague. The “law schools” should take back their law reviews? Who, exactly, are the law schools? Posner must know that the only people with power to implement reform are tenured faculty. But that won’t happen because the inertia behind the current system of student-edited reviews is ultimately based on the interests of the faculty. Rather than place the blame where it lies, Posner suggests that law students and law firms are at fault. Both value the current system because it provides a signaling mechanism for students and their employers. But if law reviews didn’t exist, students would find other ways to signal their competitiveness. The dean’s list would matter more, or moot court, or public service, or work in various legal clinics—which much more closely approximate work at most law firms than does editing a law review.

Consider another example of Posner’s blame-shifting. Posner faults students for the ridiculous length of legal articles. But most articles are submitted at lengths well over 25,000 and frequently over 40,000 words. Authors sometimes submit articles that would otherwise be considered full length book manuscripts at 80,000 words or send “two-part” articles that are easily the length of an average monograph. Posner complains that student editors add unnecessary footnotes to articles. But when a submission is already 40,000 words long, and often badly researched or cited (even by the most minimal standards), what’s another 5000 words below the line? The article was already 30,000 words too long. And if the piece really ought to be 50,000 words long, then it’s time to start working on a book.

It’s true that law professors submit long articles in part because law reviews will publish them. But law reviews publish short articles, too. Some law reviews have started to institute word caps, but many law professors do what they can to avoid this and will negotiate at length with editors for more words. Faculty, especially those without tenure, frequently argue that they need more space to incorporate the many suggestions they receive while work-shopping their articles. They have strong incentives to expand the length of their articles. Having invested so much in a 40,000 word manuscript, why not add 10-20,000 words for the sake of completeness? But consider what would happen if tenure committees announced that they were no longer interested in reading articles over, say, 10-15,000 words. The average length of law review articles would drop dramatically. Moreover, such a move might foster a change in the norms of legal academic publishing. What counts as a good “tenure” article has become the standard for all law review articles: 70 single-spaced pages and 250-350 footnotes. That is the target. Change the tenure standard, and everything else changes with it.

2. Posner overstates the decline in quality that results from student editing. Good quality material is being published. His problem is that everything else gets published, too. But, at worst, this creates a large efficiency cost. I think Posner would be hard pressed to give examples of good articles—i.e., those that might otherwise have been accepted by peer reviewed journals—that (a) didn’t get published, or (b) were made worse by the process. Most authors simply refuse to make changes they think will diminish the quality of an article. After all, what real leverage do student editors have? At worst, students don’t improve articles. Still, many law professors will tell you that, at top tier schools, editors do a decent job of providing comments. They spend far more time thinking about arguments than many peer review referees, and the time tradeoff often translates into quality comments. That isn’t always true, but, then, it isn’t always true that peer review comments are helpful, either.

3. Posner is so obsessed with the academic costs of the law review system that he doesn’t consider the opportunity costs to students. He complains that, “[t]o student editors, the cost of an author’s time is zero,” but does Posner value the time of students? An average top-tier law review has a staff of about 80 students. Instead of engaging in pro bono work or their own research, those students spend—and this is a very conservative estimate—7000 hours per year editing the work of law professors. Now multiply that across the dozens, if not hundreds, of law journals out there. Imagine if all that time were spent building houses for Habitat for Humanity (or, for lawyerly types, Buildable Hours), or in clinical environments learning to practice law, or, for those so inclined, in graduate-level legal research.[2] There are great opportunity costs, and, if we’re assigning blame, then the faculties and administrations of law schools should accept their fair share.

4. Finally, consider Posner’s proposal for reform:

Students would still work and write for the reviews, but they would do so under faculty supervision. Their care in citation checking would be valued by the authors, but the tendency toward poor judgment and thoughtless impositions on authors would be held in check. Doubtless it is too much to hope for such a reform.

Posner’s idea is that students will still do all the thankless grunt work of researching for professors. They just won’t have any control over it anymore. But I assume this new system would continue to confer prestige on top students. Otherwise, few of them—perhaps (to indulge in a bit of Posner’s cynicism) only those who need recommendations to continue as legal academics—would do the work. Now, one might argue that Posner is simply recommending what currently holds in other academic disciplines: graduate students do research for their professors. But there are large differences between most graduate students (especially Ph.D students) and most law students at top-tier schools. First, law students pay nearly $50,000 a year to go to school. That’s a lot of money to spend researching for professors you don’t even know. Second, they have much less time in school than graduate students. Arguably, that time could be much better spent learning how to be a good lawyer, or working in one’s community, which, in turn, advances the legal profession’s commitment to public service.

Posner’s suggestion of reforming law reviews into 80-person research staffs for professors is a meager proposal for reform. Why not go farther? Just abolish law reviews altogether in favor of a peer review system. Assign prestige to students who do excellent work in the classroom, in clinics, in public service, or in their own research. Imagine this: professors do their own research, check their own cites—or pay people to do it for them. As Posner says, “Doubtless it is too much to hope for such a reform.”

Posner doesn’t actually give any plausible suggestions for realistic reform. He just thinks faculty should take over. If that’s unrealistic, and he obviously thinks it is, then maybe he could have suggested something more constructive. If student-edited law reviews are here to stay, then our energies are better focused on more modest changes to the current system. Consider five possibilities: (1) articles should be limited, even if arbitrarily, to no more than 10-15,000 words, including footnotes. (Anything longer makes quality editing difficult, even for teams of well-intentioned students. Who volunteers to edit a 45,000 word article for a total stranger?); (2) faculties should volunteer to review articles (and to their credit, all the faculty I have worked with have been very supportive in reviewing submissions); (3) law reviews should streamline their editing policies (e.g., by eliminating silly requirements for parentheticals, as Posner suggests), (4) law reviews should move to blind review and (5) perhaps even to single-submission policies. These last two changes would be difficult to accomplish because of collective action problems. They would also delay publication by months, but both would improve the overall quality of publications. These sorts of reforms, some of which are being implemented piecemeal by different journals, are within the realm of possibility. Faculty can encourage them, but not by telling students that they aren’t cut out for the work they do. That doesn’t move the ball forward. It just makes good students feel bad about doing jobs that everyone—including the academy, the bar and the bench—expects them to do.

Calls for abandoning law reviews are counterproductive unless faculty are committed to occupying the field. It may be lamentable that law school faculties and administrations are unwilling to confront the large scale collective action problems they face in the current law review system. No top tier school is willing to dismantle its law journal(s) for fear of disadvantaging its students, upsetting alumni, and eliminating all that free labor. But there are other options. Legal academics can establish peer-review journals in areas where they don’t already exist (something which Posner has done quite successfully), or they can work with students to make much needed changes. Given his view that student-edited law journals are going to be around for the foreseeable future—a prediction about which I am actually far more pessimistic—it is unfortunate, and somewhat ironic, that Posner ignores more pragmatic prospects for reform.

fn1. How could I resist? See Richard Posner, The Future of the Student-Edited Law Review, 47 Stanford L. Rev. 1131 (1995).

fn2. Brian Leiter seems to agree. Though he doesn’t say much about where changes are supposed to come from, or who is repsonsible for all this.

First, it has a terrible cover. Why the darkness? Second, the book doesn’t need a foreword by Martha Nussbaum—or anyone else for that matter. (I suppose Rawls could have requested that she do it? Has anyone seen the foreword? That’s the only reason I can think of that might justify it.) Otherwise, the introduction to the paperback edition does the job. Last point: the new edition apparently includes “The Ideal of Public Reason Revisited.” I do seem to remember Rawls writing something about wanting to republish PL with that essay included. So maybe Columbia is following through on his wishes. And that would be noble of them. But that essay is already published in no less than three other locations: the University of Chicago Law Review, The Law of Peoples, and, most appropriately, in Rawls’s Collected Papers. Do we really a need another version of PL just to bring the two together? On the principle of “if it ain’t broke,” I think the publisher should leave the book well enough alone.

But—and this is the only reason (or excuse) I can think of for bringing out a new edition—the current version is broken. Or at least, the book has a tendency to fall apart after the first reading or so. I used to think that maybe I was just hard on PL. But after consulting with others, I’m convinced Columbia just produced a terribly bound volume. (Is this true of other Columbia books?) It cracks easily, the glue comes apart, pages fall out. I’ve been through at least three copies of the book—one hard bound, two paper, and none of them survived very long. And it’s not that I’m treating this book more harshly than others. I’m sure my copies of TJ, Anarchy State, Spheres of Justice, Sandel and the other usual suspects get just as much wear. PL is justy a poorly manufactured book. Whatever you think of the book’s contents, surely the publisher could do better. So there is a good reason for a new version, although not, I think, for a new edition.

Does anyone know why Rawls published the book with Columbia? I’ve wondered about that in the past. TJ was published with Harvard, and so were the Collected Papers, if I’m not mistaken. Just another question of Rawls trivia.

UPDATE: Alas, defeat.

There are lots of people we enjoy reading whom we’ve never heard speak—especially when they’re from fields in which we don’t attend conferences. I thought it might be helpful to get comments from those outside my immediate fields (which are law, political theory and philosophy), though I’d certainly be interested in reactions within those disciplines as well.

I think the most impressive academic speaker I’ve heard is Ronald Dworkin. (Will Brian Leiter ever forgive me?) His Hart Memorial Lecture in 2001 (for which I couldn’t find a link) was probably the single best academic presentation I’ve seen. He gave the lecture without notes. By itself, that wouldn’t be anything all that extraordinary. But I’d read the manuscript that the speech was based on, and it was as if Dworkin had a teleprompter in his mind. You might have thought he’d delivered it from memory, except that it was clear he was just moving through his ideas systematically. I’ve heard a lot of excellent talks over the last few years, but none that stands out as much as that one.

The next symposium topic is “Internet, Law and Culture,” and they’re currently accepting submissions.