Steve Bradford asks the perennial question: Why do we need law reviews?
... in a world where articles are publicly available and read long before they appear in law reviews, what exactly is the value of law reviews? Most of their content is stale by the time it’s published.
He then explores some possible answers before concluding (correctly IMHO) that none of them are very satisfying.
This was a question I took up a while back, arguing that:
Unlike professional academic presses, which have multiple levels of grown-up editors that must be persuaded and make use of peer reviews, law reviews mostly are staffed by twenty-something second-and third-year law students whose knowledge of the law, legal profession, business, and so on is typically modest at best. If the Harvard Law Review turns down an article that Chapman's law review accepts, all it really tells you is that kids who on average scored higher on the LSAT liked your article less than did kids who on average scored lower. Why their choices send signals worth paying attention to is unclear, at least to me, which is not to say that I'd turn down any offer of publication the Harvard Law Review would care to make. I may think that the market is absurd, but I'm still an economically rational actor.
The signaling effect doubtless matters for junior scholars of whom no one has ever heard. It's particularly important when tenure rolls around. In my years in the academy, I've seen very few tenure discussions in which book and article placement did not serve as a proxy for quality. It's not the only quality measure, of course, but it is a factor.
For a more established scholar, however, the signaling effect may not matter all that much. Indeed, I suspect that "Professor Bainbridge" is a more potent brand name than, say, the UCLA Law Review.
Suppose I had taken that last law review article and self-published it as an e-book entitled "Professor Bainbridge on Insider Trading Inside the Beltway" and priced it at, say, $4.99. Could I have sold a couple of hundred copies? How about a whole "Professor Bainbridge on ____" short e-books?
Having said all that, why should the State of California pay me to write self-published books? Isn't part of the deal I make as an academic that I will do scholarship that is publicly accessible to all? Advance mankind's knowledge and all that? This actually strikes me as the biggest and most valid objection to self-publishing scholarship. OTOH, however, if it were a fatal objection the university ought not let me do any writing that produces royalties or, at least, ought to force me to turn my royalties over to the university. As things stand, however, I'm free to decide how to allocate my time between writing law review articles for free, academic press books for modest royalties, and case books for ... well, that's between me and my Mercedes dealer.
But I'm equivocating. It's not obvious to me that self-publishing legal scholarship is intrinsically silly or an idea waiting to happen.
In a subsequent post, I noted Roger Alford's argument that "e-publishing would actually increase the availability of one's scholarship is especially worth consideration."
In a final post on the subject, I explained why it was the Minnesota Law Review that was prompting these thoughts.
As I ponder the question now, however, it seems to me that the decisive question is figuring out what impact self-publishing would have on citation rankings. They are, after all, the currency of the trade in many respects (see, e.g., the old quip that "deans can't read but they can count").