More on the Future of Legal Scholarship

The editors of The Yale Pocket Part didn’t ask me, but I think that their online collection of “Future of Legal Scholarship” posts — and the editors’ introduction — had a chance to advance the ball, but failed. The entire project rests on two premises: (1) whether new technologies will enable more people to find and read traditional scholarship; and/or (2) the legal academy should stand up and salute the distinction between traditional scholarship, which is fine for what it is and which should continue, and “other stuff” (almost exclusively, blogging), which is also fine, but for other things. It’s a retread of the “does blogging count as scholarship?” “debate,” and that question leads everyone to a dead end. Blogging isn’t scholarship. But so what?

The problem is that things like The Pocket Part, and Harvard’s Forum, for example, aren’t really designed to extend the law review in new and innovative directions; they’re designed to save the law review, and all of its traditional tics, from various challenges to its authority and prestige. (Thus, in other words, my glib post yesterday about “The Future of Legal Scholarship” looking a lot like the past of legal scholarship.) For example, I just loved this paragraph from the editors:

We see great value in professors’ online work. Blogs insightfully critique scholarship, comment usefully on problems of legal doctrine, and speak to decision-makers in straightforward language. The Yale Law Journal Pocket Part is our effort to join these strengths of online debate to the traditions of the student-edited law journal. The blogs have flaws that student editors can help to mend. Many online postings are incomplete or of only passing interest; students can help to select the most significant. Every online posting is subject to change or deletion at its creator’s whim; students can help to preserve and archive them. Many postings lack proper citations to the relevant authorities; students can carefully check the necessary sources. This Journal’s editors have long performed these tasks, and readers may rely on the permanence and the accuracy of these web pages as they have for so long relied on our printed pages.

The presumption is wonderful! “Scholarship” means law review scholarship, as practiced by the editors at Yale and revered by large numbers of American law faculty, with their shared fetishes for Bluebooking and SSRN downloads and word counts. (Note to my Dean and colleagues at Pitt: Not that there’s anything wrong with that!)

On my drive in to the law school this morning, I heard a pair of radio DJs playing a clip of an evangelical minister reacting (badly, of course) to Stephen Colbert’s recent appropriation of the phrase, “godless Sodomites.” When Colbert used the phrase at the Emmy awards, I heard more than a little nervous laughter; everyone in Hollywood knows, or should know, at some level, what a complete put-on the whole network-and-celebrity enterprise is. Hollywood is largely incapable of having an honest conversation about the future of entertainment; instead, it hands out prestige-reinforcing statuettes. Kneel before your god, Babylon!

So: Can we talk? Have a real conversation about the future of legal scholarship? I don’t know. But there have to be some ground rules that don’t put the law review genie in the bottle.

First, we’d have to agree to stop debating whether something is “scholarship” or not, and instead start talking about where and when and how different types of writing and speaking and presenting engage each other.

Student-edited law reviews aren’t going away. But neither are blogs. Or wikis. Or novels. Or comic books. What do we do with the amicus briefs filed by academics? Don’t forget monographs, book chapters, casebooks, legislative testimony, and a lot of other stuff that is increasingly showing up online. Each of these can carry on in its own little bubble, or the profession can try to figure out ways to connect their content. Blogs speak to journal articles speak to wikis speak to comic books speak to law reform projects speak to del.icio.us. Or something like that. I have no idea what the end result of this process might actually look like.

Second, not only would we have to bear in mind obvious interdisciplinary issues, but also the fact that there are legal academics in other countries who are interested in this discussion. And how about the practicing bar? Remember our former students? There’s a real opportunity for the Future of Legal Scholarship to break down the insularity of the American legal academy.

Third, no one would have to forget the fact that the cynical game here is all about prestige and reputation and role and hierarchy. Some of what I’ve written, here and elsewhere, may come across as early-Internet-idealism, but I’m as cynical as the next guy; I know about tenure and promotion committees. But substitute “rigor” for “scholarship” in the “is blogging scholarship?” debate, and eventually reputation takes care of itself. The fact of the conversation, in other words, would have to be separated from the rigor of the work.

Is that conversation possible? Again: I don’t know. But it would be an interesting thing to be a part of.

Good day, godless Sodomites!

UPDATE (9/12): Siva Vaidhyanathan has a post up that, together with Comments from Liz Losh and Ann Bartow, seems relevant here.

4 thoughts on “More on the Future of Legal Scholarship

  1. Mike, I think you should refer people to your piece on Open Access Legal Scholarship. The “tagging” idea there is a terrific way of constructively taking the pressure off the “where is it published stage,” and, instead, focusing people on a long process of post-publication peer-review and comment.

    Jon Mermin’s Essay in Rutgers, Remaking LAw Review, is also a superb vision of possible futures for legal scholarship.

    Finally, I recommend my colleague Charles Sullivan’s post here:

    http://www.concurringopinions.com/archives/2006/09/shepardizing_th_1.html

    which briefly discusses your tagging idea.

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