Saturday, August 3, 2013

Publishing Puzzles in Legal History

It is great to be involved in the blog.  Thanks to Karen for including me! 

I have been following the debate over electronic publication (or “embargo”) of history dissertations, with accompanying concerns about pirating of ideas and research.  

Questions of protecting our original research, publication, and how best to publicize our work, are particularly complex in the enterprise of legal history.  By definition, we operate in multiple fields simultaneously.  This affects all aspects of our work, but none more completely than how best to reach audiences for our scholarship (not to mention to get tenure).  I have been involved in books, articles in history journals, and most recently in an article for a law review, and have found myself wondering in each case how the venue affects the readership.  I still believe that the book is the central form of scholarly achievement for most in our field, and am very much enjoying being a book series editor in legal history, but the virtues of other forms of publication loom large, for practical reasons as well as for those of scholarship.

For legal historians based in law schools, deans and many colleagues may equate success with law review publication.  I have even been told by some that their deans have actively discouraged books, while touting law review articles as the safest track to tenure.  And some noted legal historians have made careers primarily on the strength of such articles.  Among graduate students in joint degree programs, by contrast, I have noticed a habit of downplaying the intellectual worth of law reviews.  From my perspective, this is unwarranted, in large part because law remains the field where student-run publications actually dominate the market.   We can all think of superb legal history research that has been published in law reviews.  Remember Bob Gordon’s Critical Legal Histories

A key question about publishing in law reviews, however, remains the one I began with:  audience.  Does legal history in law reviews languish in relative obscurity compared with non-legal journals and books?  Do journals that are not explicitly targeted at historians actually get read by those we hope to reach?

Another issue especially for newer scholars thinking of publishing a book, is whether pre-publication of parts of the book as articles will hurt or help with a publisher’s acceptance of the proposed manuscript.  I asked this question of two editors at leading academic presses that publish significant numbers of books in legal history, or have a series dedicated entirely to the field.  With only two data points, this is by no means a scientific sampling, but the two editors had viewpoints that are relevant to the ways we think about publishing in legal history.

The first said that generally law review publication does not really reach the same audience as a book, and that legal history is currently a field of considerable interest to top academic presses, based on the depth of insight and fresh quality of much of the research underlying book projects.  Among others, she mentioned the work of Ariela Gross, Ken Mack, Robert Tsai (forthcoming) and Kara Swanson (forthcoming). 

The second editor did not mention particular authors, but spoke more to the ways that articles anticipate a book or not.  He did not discourage selective publication, but said that publishing more than 50 % in advance would make it difficult to argue that the press should proceed.  He also said that no article should give away the central argument of the book itself – in other words, that an article should be narrower than a book. 

A reasonable conclusion, therefore, is that publishers allow authors leeway to publish pieces relevant to a book elsewhere.  The Cambridge editor did say that there is no hard evidence going either way on whether articles published in advance hurt or help sales. 

It is safe to say, however, that such publication often helps careers.  Readers, what is your experience?  Have you regretted saving everything for a book, instead of publishing some material in article form?  Have law review articles been read by those you hope to reach?


Malick Ghachem said...

Hi Sally,

I don't have any great insight on the law review vs. other periodicals vs. save for the book debate. I'd only add that one advantage of law reviews is that the path to publication seems generally shorter than other journals, and if one's legal-historical research is tied to some pending legal controversy, as is sometimes the case, this would naturally explain why a legal historian would favor the law review. Plus it is easily searchable by lawyers and judges on Lexis or Westlaw (as some of my fellow law profs have pointed out to me!). I suspect if I were writing about something that is tied to a specific pending case or controversy, I'd know where to submit -- but I try to guard against writing too many things in that vein. I think the pragmatic issues you cite in your post (about institutional preferences, the tenure process at law schools vs. history departments, etc.) are paramount in this area and explain a lot of the "behavior" at issue. What is best on a normative level? I don't think there is any clear or good answer to that question. I happen to enjoy reading law reviews, but "professional historians" I think will probably always regard them with at least a little skepticism.

Karen Tani said...

Hi everyone, I posted a comment earlier with some broken links. Here are the right ones!

My earlier plea for advice on this topic:

... which generated some useful comments, one from LHB's own Mary Dudziak.

A related guest post by Serena Mayeri: