Intellectual Property Law

Schlag and Me

By Mike Madison

About three years ago, I wrote a short essay on law reviews and open access publishing that characterized legal scholarship in student-edited journals in glib and uncharitable terms: “The theory of the economy of prestige holds that we see a grumpily mutually-reinforcing symbolic economy of law professors, lawyers, law students, law schools and their universities processing professional prestige through the unusual institution known as the law review,” and it went on to suggest that if law faculty wanted to escape the doldrums of intellectual mediocry largely perpetuated by their reliance on student-edited journals — if they really wanted to seize the idea of relying on their own scholarly authority rather than basking in the dim, reflected light of the universities in whose law journals they published — they might redirect their scholarly agendas:

Maybe open access works for knowledge goods that have intrinsic value and not for knowledge goods that don’t. Maybe the law reviews’ reluctance to adopt open access policies and law professors’ reluctance to seek out open access publication is a kind of jurisprudential clue. If law professors really want open access to take hold in legal scholarship, then they–that is, we–should take empiricism more seriously than we often do. Or, if we want to keep up our (and my) pose of reflective self-absorption, we need the justification and prestige that the current publishing system supplies. I’m not confident that we can have it both ways.

Pierre Schlag in the Georgetown Law Journal now offers a similar and even more glib (though not the same) account of the cultural economy of legal scholarship, and Judge Posner in response offers a similar (though not the same) recommendation for rehabilitation.

Which is a somewhat roundabout and long-winded way of saying that I think that they are both mostly right. 

I first read Schlag’s piece when he posted it to SSRN, and Lawrence Solum picked it up at the Legal Theory Blog.  But it didn’t make a splash until it was accepted and published by Georgetown.  If the piece weren’t published in a top 10 student-edited law journal, would it be taken seriously — by Judge Posner?  By the other commenters in that issue?   In the blogosophere?  On your faculty? 

Of course, I allow for the possibility that the conversation isn’t taken seriously by some or all of the above even though it is published in a top 10 student edited journal.

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Full post as published by Madisonian.net on March 25, 2009 (boomark / email).