Mrs. Lincoln's Cat: The Future of the Legal History Book

Next Saturday I'll be on a roundtable at the American Society for Legal History on "the future of the legal history book." Peter Hoffer's assembled a panel that looks at the book from a variety of perspectives: distinguished authors (Laura Kalman, Hoffer and Herbert Alan Johnson), editor (Johnson) and publisher (Clive Priddle of Public Affairs). I'm on the panel to talk from the perspective of a book review editor (of Law and History Review). Sort of covers the ground from beginning to end (author to editor to publisher to reviewer). If you're in Baltimore this week, I hope you'll stop by the ASLH; there are a lot of exciting panels.

The panel has led me to think some about the future of legal monograph publishing. I've written some about considerations for authors as they are selecting a press. Price of books is one that's always on my mind, because if you want a book to get into the hands of students, it has to be really affordable. (One reader protested that textbooks are absurdly expensive--I'm thinking here that supplemental texts need to be affordable, if you want them to get into the hands of students.) Of course, authors are also concerned about how much care a press will take with a manuscript: will the press devote some time to editing? Will it get the book out quickly? Will it make an effort to promote the book? When will it bring the book out in paperback?

In these days of drastically reduced library budgets and of shrinking subsidies from universities for their presses, the economics of publishing are really beginning to hurt opportunities for publishing scholarly monographs, I fear. The days of the major university libraries that try to purchase every serious scholarly book are waning. Some presses, like Cambridge, can still expect to sell 225 copies of everything they publish, no matter how expensive. But you have to ask yourself, how many people are going to buy even a terrific book if it costs $190? And even how many university libraries are going to buy it? It's a serious problem.

To take two other examples, which Herbert Johnson will know more about than me: There's the Oliver Wendell Holmes Devise History of the Supreme Court. It has that strange name because Holmes left money in his will to the United States government--and Frankfurter funneled it towards a multi-volume history of the Court. William Wiecek's volume just came out this summer. The final volumes are about to come out. I'm eagerly awaiting the volumes by Morton Horwitz on the Warren Court and by Robert Post on the Stone Court. Now you may say; "wow, Holmes died in, what, 1935, what's going on?" There's a pretty interesting story, actually. I'll leave that to Sanford Levinson to tell it.

The punch-line to my story is that the volumes are expensive. G. Edward White's volume on the Marshall Court cost about $90 when it came out in 1988. It's out of print now, which is a huge shame. I used to assign it (when it was available for about $30 in paperback) to my legal history students. Then there's the Oxford History of the Laws of England. Richard Helmholz' volume, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s is being praised to heaven. One very distinguished legal historian, whose judgment is rock solid, told me that he thinks it is one of the best volumes ever written in any field in legal history. It costs $335. Get your law library to buy it, because that's the only way you're going to be able to afford to read it.

Law reviews, which are run in part to promote the schools themselves and in part to provide training to law students, help in promulgating scholarship. And because of the educational and promotional roles they serve, law schools are willing to underwrite the cost of law journals. (Some are still quite expensive; an institutional subscription to the Harvard Law Review is $200/year.) But through the generosity (and self-interest) of law schools, we can avoid the absurd costs associated with journals in other academic fields. The New York Sun has an excellent article on the resignation of editors of the mathematics journal Topology over costs, now more than $1600/year! (Brian Leiter has his characteristically thoughtful discussion of journal costs here.)

There are still some presses where costs are relatively unimportant. Those are presses where the university is underwriting them to help them get market share. That is, the limits of the market do not apply in the same way at those presses. The University of Pennsylvania Press is one of those that--at least a few years ago--was spending more on production and publicity than they expected to get in return. Penn was willing to fund them because the university saw a major press as an important selling point for the university. In legal history the University of Georgia Press, Northern Illinois University, and University Press of Kansas all produce books that are affordable. They are, perhaps, more interested in publishing than in the bottom line. But all of these are senses that I have acquired through looking at their lists and seeing good books, rather than speaking with anyone knowledgeable at any of those presses.

My sense is that Cambridge University Press continues to be one in which cost is, if not no object, certainly subordinate to the quality of the manuscript. One of the reasons I so respect Cambridge is that I think they will produce a book if it's great, even if there is one a small market for it. Ah, it's refreshing to see academic merit as the central (and perhaps only?) consideration.

The long and short of it is that costs are rising; sales are falling; and while there are still some fields where there is enough interest to support excellent scholarship, I fear things are going from bad to worse. And the importance of the bottom line continues to grew, as money becomes tighter everywhere.

It never ceases to surprise me how small the audience for academic books is, even for academic books that get a huge amount of attention. There is still some room for popular works on history (or I suppose law). A couple of comparisons here. James Loewen's Lies My Teacher Told Me, about the way that American history textbooks mispresent American history. It's a fabulously entertaining read. It sold more than one million copies. Michael Bellesiles' Arming America was the center of much attention a few years ago; it won the prestigious Bancroft Prize and then had the prize taken away. Knopf, which published it, subsequently stopped selling it (though you can still get it for as little as $0.45 at amazon). I'm not here to praise Bellesiles or to vilify him. I'm just here to say that it sold something 18,000 copies. So even a book that gets a huge amount of attention (in its later period, much of it negative, of course), sold less than 20,000.

I think that those who write on US legal history have an easier time than those who write on non-US topics. Because there still seems to be a sufficient interest among libraries to support books on reasonably broad topics in US legal history. There's a lesson for authors in this, I guess. Write on a topic of great public interest. What's the old joke about book topics: People read books about presidents, first ladies, and cats. So if you want to sell some books, write about Mrs. Lincoln's cat. Actually, if you want to sell some academic books, write a textbook or one on the military history of the Civil War.

So Universities are providing less money, book sales are generating less. What's next. How do book reviews fit into this rather grim picture? In ways you would not at first expect. Book reviews are not about selling books, unfortunately. Some years ago one of the syndics at Cambridge told me that their research indicated that reviews of books in academic journals--even prizes--had virtually no effect on sales. For those who are fortunate enough to have review in the New York Times, that helps--but my sense (and limited experience) is that even a review in a major paper other than the Times (and maybe the Los Angeles Times) does little. And reviews in academic journals does nothing in terms of sales. This, I suspect, is the reason that I find it hard to squeeze review copies out of lots of presses: they know this secret as well.

Reviews in academic journals are about something else--something substantially more important than sales: the promulgation of ideas. Reviews are about distributing knowledge. After authors have collected every bit of information and squeezed every story they can out of their research, then put it together in a narrative, waded through interminable edits, and waited another year for the manuscript to appear, it's the book review that reduces their life's work to around 800 words.

So, in 800 words we should tell the ideas in the book. Reviews shouldn't be about what each chapter is about; I think they should be to capture the idea behind the book, locate the book in the stream of other writing, and give a sense of how the book may redirect that stream. Those are the kinds of reviews I most enjoy reading. And they do the authors of the honor of taking their ideas seriously. I suppose all authors would like to see kind things said about their books, but the reviews that take ideas seriously and engage with books are the ones that ought to earn the respect of authors.

I've enjoyed--and learned the most from--the critiques that engage with my thesis. And while sometimes those are hard, I'd much rather have someone seriously engage with my work and help improve it than give some polite (but ultimately dismissive) comment. Book reviewers may feel, with Ralph Ellison's Invisible Man, that they were never so disliked as when they were honest. There are better (and pooer) ways to deliver a critique. But authors ought to appreciate a respectful and earnest engagement with ideas.

So I take the task of matching up reviewers and books very seriously. Laura Kalman once used the image of a host trying to arrange seating a dinner party: we want to get people talking to one another who have something to say and also who will provide complimentary perspectives. So I try to match up books with people who've worked with the same sources or employed the same methods or worked in the same time period. But in each case, I'm looking for people who have a different perspective. Perhpas my favorite pairing was James Ely as a reviewer of Dylan Penningroth. No one has written more than Ely on nineteenth century property; Penningroth's book is about slaves' conceptions of property. What a great juxtaposition of people who work on the same time, but ask very different questions and use different sources. The review was brilliant.

Some of my other favorite pairings include Nan Goodman's review of John Witt's Accidental Republic. Goodman wrote a book on treatment of accidents in literature, so she comes at similar issues from a different cultural vantage. Sandra Gustafson, who wrote an important book on oratory in early national US reviewed Terri Snyder's Brabbling Women on women's speech in the 17th century Virginia courtroom. (Snyder's book is delightful, by the way; I think you'll enjoy it, even if you aren't steeped in colonial American history or feminist jurisprudence.) Pretty neat to get people who share similar interests for different time periods talking about their similar (and differing interpretations). Along those lines, there is James Brundage's review of William Burgwinkle's Sodomy, Masculinity and Law in Medieval Literature: France and England, 1050–1230.

Sometimes you need someone who uses similar methods, like statistical analysis of the early American economy or voting patterns. Along those lines, I think of Cathy Matson's analysis of Robert McGuire's quantitative study, To Form a More Perfect Union: New Economic Interpretation of the United States Constitution.

Then you also sometimes want people who are sympathetic to the author's goal, so that they'll understand the work. Stephen Presser's review of John Phillip Reid's work on the rule of law is one example. Along those lines, I also think of Stephen Siegel's review of Mark Bailey's Guardians of the Moral Order. Stephen has been for decades one of my favorite legal historians. He's also very sympathetic to Bailey's mission of understanding how late nineteenth century moral philosophy provides a language for understanding what judges did. It takes someone like Siegel who's sympathetic to the mission and engaged in it himself, to talk about the limits as well as the virtues of such an important project.

Reviews, then, can serve the function of helping to get ideas into circulation, even as books are becoming less affordable. They provide a vehicle for talking to one another, which we do less and less in the academy. I hope you'll look to future issues of Law and History Review. There're some more cool pairings coming in the next year.