Legal Commentary

Brian Leiter and Stephen Griffin appear to think it is. Methinks they doth protest too much. Griffin's complaint centers on the fact that in recent years a cluster of well-known con law theory books have not been reviewed:

Consider some of the better contheory books to be published over the last few years:

Jack Balkin, What Roe v. Wade Should Have Said (2005)

Sotirios Barber and James E. Fleming, Constitutional Interpretation: The Basic Questions (2007)

James E. Fleming, Securing Constitutional Democracy (2006)

Mark Graber, Dred Scott and the Problem of Constitutional Evil (2006)

Sanford Levinson, Our Undemocratic Constitution (2006)

Walter F. Murphy, Constitutional Democracy (2006)

Keith E. Whittington, Political Foundations of Judicial Supremacy (2007)

And yes I could go on from here and no I'm not trying just to list contributors to this blog! But it's really a shame. Perhaps the "Books" issue had to cut back on the number of pages, etc., but dissing contheory does not seem to me to be a good way to carry it out.  And what books related to conlaw do they choose to review in the latest (April 2008) issue? Hint: not Jack Goldsmith's The Terror Presidency (2007) or Charlie Savage's Takeover: The Return of the Imperial Presidency (2007). No, the last two issues have featured scholars with the last name "Posner" and the current issue leads with "Yoo." A sad state of affairs.

It's not quite evident to me why, on the merits, Posner's name would be prima facie evidence of decline. He is by most accounts the most influential judge in the country. The complaint seems misplaced further because, for the most part, the way to get into the Books Issue is to pitch a review as Kevin Heller wrote in his comment; if the law professor market's not thrusting reviews into these editors' hands, it doesn't seem quite right for Griffin or Leiter to chastise them or for the student editors to go out and hunt for reviews of the books (that Balkinization authors have written), since that's often just a recipe for untutored cronyism. And in some cases, it appears from Sandy Levinson's comment on Balkinization, the student editors *are* asking for reviews of certain books and it's hard for them to get the targeted authors to agree to write the particular review. 

Is there any reason for real worry? It's not as if the current issue (April 2008) is filled with slouches either in terms of the books reviewed or the reviewers of these books. Last, some of the books that Griffin mentions as "ought to be reviewed" may still be eligible for review in the 2009 issue. The MLR editors state pretty clearly that "the 2009 Survey, which will be published in April 2009, will include reviews of books published in 2009, 2008, and 2007."

The real issue, it seems to me, is with the supply and incentives for supply; some schools discount meaty review essays even though these days a review essay might be the same length as an article and make a more robust contribution to the literature too.