Saturday, April 26, 2008

The Sad Decline of the Michigan Law Review's Books Issue

Stephen Griffin

I used to look forward to the annual issue of the Michigan Law Review on "Survey of Books Related to the Law." A real service to scholars I thought. No longer. My area of scholarship is constitutional theory and as far as contheory is concerned the attitude of the last few "Books" issues seems to be: we don't care anymore. The list of significant contheory books not reviewed in MLR has become quite long. Indeed, MLR doesn't seem to be trying -- no longer are there sections dedicated to contheory or even conlaw. 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.



I'm curious: which of the books on your list did you offer to review for MLR, only to have your offer turned down? Do you know of other scholars who pitched con-law reviews but were rejected? MLR didn't ask me to review Mark Drumbl's ATROCITY, PUNISHMENT, AND INTERNATIONAL LAW; I pitched it to them.

Contheory, indeed.

I think there's real comment to be made about the sad decline of almost every law review in the country, beginning with Harvard and Yale, with regard to the number of reviews they are willing to run. I, of course, have a personal stake in this, so I may be especially sensitive on this point.

In fairness to the Michigan Law Review, I must note that they suggested that Akhil Amar and I in effect review each other's books via an epistolary conversation. It turned out that we didn't have time to do it in a manner satisfactory to us, so the fact that neither of our books was reviewed by Michigan cannot be ascribed wholly to the editors.

One of Mark Graber's many contributions to Balkinization is that he in effect has become a book reviewer, bringing to our attention relevant books that almost certainly will be ignored by contemporary law reviews. We should do more to emulate him on this score.

In my semi-retirement with more time to read (although with weaker eyes), I rely upon Larry Solum's Legal Theory Blog and Mary Dudziak's Legal History Blog for links to SSRN articles that appear more currently than in the law reviews some, or many of them, are headed for. And there is also the H-Net with its reviews. (At times I curse Larry and Mary as my pile of SSRN articles gets higher and higher. But I love what they do.)

Both Paul Horwitz and I (Dan Markel) have registered dissents to this view over at

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