Sunday, September 10, 2006

Online Legal Scholarship: Thoughts Provoked by Jack's Essay

David Luban

Jack Balkin has posted a link to his recent essay (in the Yale Law Journal Pocket Part) on online legal scholarship. This post follows up on Jack's essay.

He writes: "The wrong question to focus on is whether hiring committees should count blogging as legal scholarship. The right question is how we should re-imagine our vocation as professors of law in light of new online media." Agreed. In the meantime, though, the question persists whether hiring committees count (not: should count) blogging as legal scholarship. That raises an urgent question for legal academic candidates at both the hiring and promotion level: where do I put my energy, given that I have only a finite amount of time to do legal thinking and writing? How do I budget that time? True, the blogging/law-review writing game is not zero-sum, because ideas developed through blogging can turn into articles, and fragments of arguments that eventually will go into articles can be vetted in the blogosphere. That said, the time-budgeting question is a real one. It’s a question of overwhelming importance to any law candidate attracted to the blogosphere, and to any hiring committee trying to use the previous writing of a candidate as a predictor of future scholarly promise.

To see the implication of this concern, let me turn to a question Jack's piece raises. Jack argues that the blogosphere and SSRN route around law review editors. What, in that case, is the remaining function of law review editors? They have always served the twin functions of gatekeepers (picking the articles to be published) and accuracy-guarantors – or, less politely, footnote-fixers. To a limited extent, their gatekeeper function makes them agenda setters – limited, because they have influence only over their own journal and only for one year. If Jack is right, their role as gatekeepers and agenda setters will shrink dramatically.

Now, to some in the legal academy, this is good news. These are the people who have always bridled at the idea that law students rather than peer reviewers should decide what counts as meritorious scholarship. I have never taken this problem seriously. Comparing the quality of articles in the top student-edited law reviews with the quality of articles in the top peer-reviewed philosophy journals (my own scholarly point of reference), I have never been able to detect superiority in the peer-reviewed philosophy journals. By and large, I think that law review editors – at least at the top law reviews, where the editors have an embarrassment of riches to choose from – have been pretty good gatekeepers.

But, if Jack is right that that role will shrink dramatically, law review editors will eventually be reduced to footnote-fixers; and, if the most urgent and timely doctrinal and normative issues get addressed through the blogosphere, law reviews will become repositories primarily of more theoretical articles that are a step removed from the pulse of legal events. Because law reviews inevitably impose a lengthy gap between article acceptance and publication, they will become best suited to articles that are not time-sensitive. I don’t think ambitious law students will find any of this an appealing prospect for what being a law review editor entails. Some law reviews will respond by becoming more like blogs – witness the Yale Law Journal Pocket Part. Others, becoming less attractive to ambitious law students, will staff themselves with less ambitious law students, and the result may be a downward spiral in quality, importance, and attractiveness of the law reviews, both to authors and to editors.

At that point, perhaps only a few years down the road, the question whether hiring committees should count blogging as legal scholarship might transmute into the question whether hiring committees should count law review articles as legal scholarship. If the best students and many scholars perceive the action shifting to cyberspace, law reviews will become less important repositories of at least one variety of scholarly ambition. Law reviews will concentrate on interdisciplinary, fancy-theoretical scholarship relatively disconnected from the flow of real-time political and legal events.

As Jack suggests, this may force to the forefront a question of identity for law professors: do we fancy ourselves public intellectuals, commentator-advisors to the political and policy worlds whose work has tangible impact; or do we fancy ourselves students of legal phenomena analyzing at a distance? Are we out of the cave or in the cave? Plato in his academy or Plato in Syracuse trying to advise King Dionysius?

I personally think that the role of Plato in his academy needs no apologies (and not only because Plato the policy advisor was a colossal flop). If it weren’t for Plato, nobody would remember Dionysius. Judge Edwards to the contrary, no scholar ever need be ashamed about writing articles that only other scholars find worthwhile. But I also think my view is in the distinct minority. The legal academy would by far rather advise the tyrant of Syracuse, especially if doing so generates a little glory as public intellectuals. Even without the glory, we would prefer that our work has practical effect; anyway, there are few Platos in the legal academy (as my colleague Robin West says, there are no geniuses in law), and most law professors may be right to think we make better kibbitzers than theoreticians.

If so, the heightened relevance of cyberspace really will entail the lesser relevance of law reviews – not only to the bench and bar, and not only to the public, but eventually to the career ambitions of legal academics. One long term effect may well be that the legal academy loses its infatuation with abstract or interdisciplinary work, together with its century-long ambition to attain intellectual parity with the sciences and liberal arts in the rest of the university. The legal academy may turn back to a more technical orientation toward law, leavened with the blogger’s ambition to influence public discourse. As Socrates says at the end of Plato's Apology (Jowett translation): "Which is better, God only knows." (Apologies to Plato.)


What's sure is that blogging is having a flattening effect. Vaunted institutions (e.g., law reviews, news magazines) are brought low, those previously toiling in obscurity (e.g., DailyKos) are exposed to the world. But everything, in this process, ends up sort of in the middle.

It will take longer for this flattening effect to transform hidebound and pedigree-conscious law school pedagogy and legal scholarship than most other fields (e.g., medicine, genetics), but I agree that it will happen, especially because of the absurdly long production time of semi-annual physical journals.

The advent of blogging and its flattening effect would appear to eliminate in many fields the institution of a "career". The authority of institutional voices will be diluted of power in a sea of commentary. See, e.g., Op-Ed columnists. It will take eons for this to happen to law professors, but it seems like that would be the final outcome.

I'm sure this prospect is deeply unsettling for legal academics. Legal blogging, like most other forms of blogging, seems fundamentally disruptive, destined to strip traditional institutions of their monopoly on authoritative interpretations of the world.

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