Balkinization
Adam Liptak's article at New York Times Select states what has long been obvious to most judges and most legal academics: judges play less and less attention to law reviews, and they cite them less frequently than ever.This is hardly a new development. It has been going on for some time-- indeed, ever since law schools went interdisciplinary in the late 1970's and early 1980's. Back in 1992, Judge Harry Edwards of the D.C. Circuit, himself a former law professor, despaired of the increasing irrelevance of interdisciplinary legal scholarship to the actual issues that came before him. Edwards wished that law professors at the top law schools would spend more time analyzing the cases and statutes that mattered to him and other judges and less time on increasingly complicated forays into economic modeling, public choice, feminism, post-structuralism, political theory and other versions of law-and-isms. His article, "The Growing Disjunction Between Legal Education and the Legal Profession," 91 Mich. L. Rev. 34 (1992) quickly became a cause celebre, producing an entire symposium issue of responses in the Michigan Law Review, including one by Sandy Levinson of this blog.
By the time Edwards published his article, however, the handwriting was already on the wall. The American legal academy had long been engaged in an academic revolution that increasingly demanded interdisciplinarity and high theory as the markers of scholarly seriousness and the keys to upward mobility in the profession. The American legal academy had become more like other parts of the university and less like a reporting and advisory service to the bench and bar. The kind of work that Judge Edwards wanted was no longer produced by the most distinguished members of the legal professoriat, or even by assistant professors seeking tenure--who tended to imitate the work of those higher up in the pecking order. All the incentives for scholarly success pushed scholars away from case and statutory analysis and toward interdisciplinarity. Instead, what lawyers and judges wanted was most often produced in student notes and case comments.
As Adam Liptak's article notes, the Internet has changed things somewhat. There is lots of discussion of cases and statutes floating around the Internet for two reasons. First the Internet tends to democratize the diffusion of legal knowledge and the demand for legal knowledge-- creating a new audience for everyday legal expertise. Second, the Internet changes the pace of legal writing-- focusing attention on recent developments instead of the longer view. The Internet gives law professors-- and others-- incentives to write about new legal developments as soon as they happen. Liptak points to the Volokh Conspiracy and Balkinization as two prominent examples, but in fact there are dozens of sites that discuss emerging legal issues ranging from election law to corporate law to disability law-- indeed almost every legal specialty and subject matter is now represented. Moreover, the writing in most of these blogs (and related sites) involves pretty much the sort of legal analysis that Judge Edwards said he wanted back in 1992.
Interestingly, although much of this writing is done by law professors, some is done by law students, some by practicing lawyers, and some by people who have no formal education in law but just care a great deal about the issues. This too, is a consequence of the democratic diffusion of legal knowledge.
The blogosphere tends to push law professors back toward the lawyerly analysis of doctrines, statues, and cases, although other disciplines still make an occasional appearance in legal blogs. One of the most interesting features of my own work as a blogger (to me at least) is that although my "official" legal scholarship in law reviews has been very interdisciplinary, my writing as a blogger has involved much more standard-form legal analysis of current events. That is, my blog writing is much more about the legal analysis of cases, statutes and doctrines than is most of my law review writing. Partly that is due to different expectations in the audiences I write for in the blogosphere and in law reviews. Ironically-- and this says a great deal about the state of the legal academy-- the blogosphere (and the general public) is far more interested in what someone like me has to say as an expert on legal doctrine than as an interdisciplinary scholar, and therefore I tend to write accordingly.
In the long run, it is possible that judges will look to blogs much as they used to look to law review articles for insight and scholarly support. A few courts have even begun to cite to blogs, even though blogs currently do not have the authoritative status that law reviews have. Nevertheless, even if the trend continues, one should not assume that blogs will become particularly influential or effective in changing judge's minds. As Judge Sack explained in the New York Times article, "Judges use [law review citations] like drunks use lampposts," . . . "more for support than for illumination." If blogs grow sufficiently in prestige for judges to think it worth citing them, judges will probably cite blogs for much the same reasons they cited law review articles. In any case, even if legal blogs are useful to judges and their clerks, they will probably be even more useful to journalists, legislators, and the general public in explaining new developments in the law.
