The problem is that the papers published in these books can be nearly impossible for researchers to find. The articles in a special issue of a law review are indexed just like regular articles, and they are word-searchable in the same electronic databases. There is no comparable research infrastructure for essays in books, with one exception – Michael Taggart’s index of common law festschriften (Taggart 2006) – but even that index is not widely known....A festschrift can be like a witness protection program for scholarship....
Festschriften for law professors were once very rare, but they are becoming much more common. This may be a function of the turn toward interdisciplinarity in legal scholarship. The normal vehicle for honoring a law professor was once a special issue of a law review, and that is probably still the most common way, but the legal academy has shifted toward the norms of disciplines like history and philosophy, and the festschrift is one of them. There are still relatively few American law professors, compared with professors in other disciplines, who send enough students on to academic careers to populate a festschrift. The ones that do are usually the ones, like Morton Horwitz, with one foot in another discipline, so it is not surprising that most of these recent volumes have honored law professors in interdisciplinary fields like legal history, jurisprudence, and international law.
The solution to the invisibility of this work?
Publish festschriften online. Harvard University Press has not done so with this book, nor, to my knowledge, have any of the other publishers of festschriften in recent years. If the reason is that publishers need to sell [*504] enough copies to recoup printing costs, perhaps the ultimate answer is to dispense with physical books and move toward the virtual festschrift. Maybe one day Google Books will rescue festschrift chapters from oblivion; even if you cannot read the full text, at least you can find out that a given search term is in the book somewhere. An intermediate solution would be for the authors to post pre-prints of their contributions online themselves. The Social Science Research Network would be a natural location for the chapters in this book, but when I checked in June 2009, only four of the eighteen authors had posted their chapters there. It is a shame, because all of these essays are worth reading.
Banner's full review in at the Law and Politics Book Review.
Photo: Marshalls protect witness in witness protection program.