The Effect of Internet on Legal Scholarship

This paper will examine the effect of the internet on legal scholarship; specifically I will examine the apparent decline in traditional law review articles and the rise of the legal blog. I argue that the entire purpose of law journals, selecting and editing articles, is now obsolete and that legal scholarship will benefit from law blogs. With zero-marginal cost distribution of real-time publication and commentary, legal academia’s online dialogue can be more timely, more applicable to the legislative process and more accessible to the legal and non-legal community.

The Decline of Law Journals

Last year, an article in The New York Times discussed the findings of a study , which found a substantial decrease in the number of law review articles cited in federal court opinions. Possible explanations for this decrease included the shift in legal academia from practical to more theoretical work, the emergence of Lexis and Westlaw to supplant law journals, the “anti-intellectual know-nothingism” of the courts and the rise of legal blogs.

The only rise of court citations of law journals that was found was limited to specialty journals. This rise of court citations likely correlates with the overall rise of publication of these types of niche specialty journals from law schools. Considering that we, here at Columbia, have 13 specialty journals , I wonder if the establishment of these journals is motivated by an excess of academic work looking to be published, or rather a demand of students to have law journal experience on their resumes.

Despite the decrease in law review citations by federal court cases, there has been a recent rise in the legal scholarship taking place on blogs. There are over 80 listed on a major legal blogroll, populated by tenured law professors, Judges, economists, and legal professionals. So, while formal citations of publications are declining, the amount of legal scholarship in general appears not to be in decline.

The Function of Law Journals

Student-run journals perform a selection function in which they screen for the highest quality legal work to publish. This need to select limited articles is fueled by limited publication capacity of the journal. A consequence of limiting the number of articles published is that selection of articles to prestigious journals signals to the reader which articles to pay attention to, thus separating the wheat from the chafe.

Moreover, law journals serve an editorial function that is supposed to refine article’s grammar and readability, to contribute to its substantive analysis and to verify its citations/sources. Both the selection and editorial function are absent in legal blogs, and there is a fear that legal scholarship through the internet would decrease the quality of academia and leave readers in a sea of shoddy scholarship with little to guide them.

Law Journals fail at what they purport to do

There are several reasons to question the ability for law journals to fulfill their stated function. It seems unlikely that the students who run law journals have the legal expertise or the familiarity with nuanced legal debates necessary to choose the best submissions for publication. While there has begun a movement towards peer review of law journals , the large majority of law journals continue to be run students. Moreover, even peer review submission procedures have been criticized, for being bias, suppressive of non-main stream ideas and simply for failing to catch errors.

In addition, the rise of specialty journals decreases the signaling function that publication in journals may have once served in garnering attention to certain articles. Although being published in certain law reviews may still carry prestige, the journals aimed at niches decrease the ability to compare and order the ranking of the various journals.

The function of the Law Journal is irrelevant

With the introduction of zero-cost publishing, legal blogs have made the functions previously performed by law journals increasingly irrelevant. The logic behind peer review is that, with a limited production capacity, journals can only publish a limited number of articles. With costless distribution online, this is no longer the case. Since there is no longer a need to screen the academic work before publication, law journals have lost their raison d’etre. Commentators on the law can publish their own work at their discretion and leave it to readers to judge the quality of their work. Comment sections and competing blogs allow for instantaneous responses, rather than protracted responses through journal articles, which are delayed by the slow and cumbersome editorial process. Rather than having 2Ls perform hours of cite-checking, an expanded online readership could quickly expose and correct errors. Blogrolls that link with each other will serve the signaling function to readers that was once performed by law journal editorial boards.

Law Blogs can do it better than Journals ever did

Law blogs have increased circulation of legal scholarship both within and beyond the legal community. Legal blogs are easily accessible and searchable to the general public, and allow readers to avoid the prohibitively large Lexis and Westlaw fees or library fees for journal subscriptions that previously had restricted the access of law journal articles from solo practitioners and the public. Exposing legal scholarship to a wider array of readership and academics from different fields would also likely increase interdisciplinary work .

A standard criticism is that legal blogs offer posts with little academic value and give only non-expert, superficial analysis of the legal issue of the day. This criticism is without merit. Most legal blogs are not anonymous and nothing prevents readers from checking an author’s credentials. It goes without saying, especially as law journals themselves move online, that nothing in the electronic medium limits the quality of the academic analysis therein.

Furthermore, law blogs have clear advantages over the traditional law journal. Blogs give the ability for legal commentators to publish their work instantaneously and have real-time discussion among academia. This could allow legal academics to actually affect the laws as they are being written , rather than only comment after the fact (and after the long intervening period caused by the editorial process). This would certainly answer the court’s concerns that legal scholarship is stuck in the ivory tower, and would increase the burgeoning trend of legal blogs being cited in legal opinions.

-- AdamCohen - 18 Dec 2008