At the Atlantic, Walter Olson of  Overlawyered fame calls for the death of the law review.

 The circulation of law reviews has been plummeting for a generation; the most famous and widely circulated of them, the Harvard Law Review (HLR), has seen its subscriber base dwindle from 10,895 in 1963-64 to a mere 1,896 in 2010-11.

No law school wants to give up and go web-only because it seems unprestigious…

The wider question is whether the law review model of content–with its long lead time to publication, editing by students, and format that’s resistant to after-publication editing–yields enough scholarly gems to deserve surviving in its present form even online.

We have some inkling what John Roberts thinks of the matter. The chief justice told judges last year: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.”

Just a couple days ago, a lawprof sent me a link to her law review article, as it was on an issue about which I’ve written much and have great interest.  I read it.  Well, truthfully, I read part of it, skimmed other parts and, upon reaching the point of boredom beyond which I feared permanent brain damage, I put it down.  I don’t blame anyone, least of all the lawprof author.  It’s the nature of a law review article, to take a subject of interest and make it as tedious, drawn out and thick as possible.  Did I mention footnotes?

The decision was handed down on the 27th day of May¹ rather than the anticipated date of the 29th.

¹ Using the Gregorian calendar, in contrast to the pre-Julian or Roman calendar. Due Process and the Rejection of Pre-Julian Dating, Richard Head, 28 Yale L.J. 1198 (1947). Others dispute the merit of the Gregorian calendar and contend that Pre-Julian dating should be used, whether in parallel or by itself. See, e.g, United States v. Sparticus, 138 F.2d 490 (3d Cir. 1984).

For a practicing lawyer, I probably read more law review articles than most. At least parts of them. Not all of them are ridiculously irrelevant, grasping for something remotely resembling purpose in a journal of a million murdered words.  It’s awful.  It’s painful.  Not because these articles don’t occasional raise ideas or argument of merit, though it’s rare, but because even the best and most thoughtful bog down in the brutally heavy compulsion to mask worthwhile thoughts in thousand of worthless words.

And so, I disagree with Walter. The law review should not die. It’s already dead. It’s been dead for a while, and merely wanders about like zombies eating the brains of those who are caught in its clumsy clutches.

What we do know is that the page volume of law reviews has proliferated beyond reason with no corresponding rise in compelling content. Even low-ranked law schools often publish six or eight of them. There’s no secret as to why: students crave the credential of having worked on law review, while faculty crave a high likelihood of being published. Legal educator Harold Havighurst nailed it half a century ago: “Whereas most periodicals are published primarily in order that they may be read, the law reviews are published primarily in order that they may be written.”

One way or another, some scholarly apparatus will be found to publish meritorious longer articles that advance the mission of serious research into the law. But when it comes to discussion of timely controversies, slash-and-thrust debates, and other forms of writing that people actually go out of their way to read, there’s no doubt where talented legal academics are headed: to blogs and other shorter-form online publications.

There are alternatives, as Wally correctly notes.  Blawgs, such as Volokh Conspiracy, played a significant role in shaping the arguments against the individual mandate. While they may not have carried the day, their relevance can’t be denied.  And there were two significant advantages: the posts were readable and read.

It’s not that law reviews, run by students who fancy themselves so brilliant as to entitle them to pass judgment on the work of law professors, have no place in legal society. 

1. They provide resume fodder for students who want to guarantee that they will never be expected to try a case in their careers.
   
2. They provide space for people who aspire to being deemed sufficiently scholarly to commit murder of the language with impunity. 
   
3. They can level a table leg.

Defenders of the faith clap their hands in glee whenever a law review article is cited in an opinion. Sadly, it doesn’t mean what they think it means.  Judges don’t cite to law reviews because they found them persuasive, or even mildly interesting.  In fact, it’s doubtful that judges cite to them at all, since it’s part of the grunt work fed to their law clerks, who just happen to be the former law review editors, on whose shoulders it falls to keep the zombies walking.

Rather, whenever judges come up with cockamamie ideas that cry out for support from any source possible, they send the grunts off to the library in the usually safe belief that somewhere, amidst the millions and millions of murdered words, will be a law review article that is so outlandish and ridiculous that it backs them up.

Will the physical books persist as long as there are trees to be cut and mother’s to buy proof of their darling’s genius?  Of course, but that doesn’t mean they’re alive.  Blawgs have already proven that ideas, if worthwhile, have an outlet for their existence, and can fulfill a function by bearing the basic virtues of brevity, readability and substantive merit.  As for law reviews, they’re just dead weight.

And if law reviews are zombies, the blue book is a vampire, existing only to suck the life out of you.

Update: I am deeply ashamed to admit this, but as Temple Lawprof  Dave Hoffman gleefully informed me, I a disgrace to trench lawyers everywhere.  There is a new law review article available on SSRN by Arizona State lawprof Adam Chodorow entitled Death and Taxes and Zombies.

The U.S. stands on the precipice of a financial disaster, and Congress has done nothing but bicker. Of course, I refer to the coming day when the undead walk the earth, feasting on the living. A zombie apocalypse will create an urgent need for significant government revenues to protect the living, while at the same time rendering a large portion of the taxpaying public dead or undead. The government’s failure to anticipate or plan for this eventuality could cripple its ability to respond effectively, putting us all at risk.

Now this is scholarship.  And Hoffman is just laughing his butt off at me. I’m so ashamed.