Will Blogs Kill the Law Review Case Comment?
While mulling over my blog post below about a recent court decision, it occured to me that one way blogs will change the content of law reviews is by rendering case comments superfluous. A case comment is a brief student-written article, usually around 10 pages long, explaining and offering commentary on a recent court decision. Case comments traditionally have served three functions: 1) Alerting readers to a recent decision, 2) Offering a scholarly assessment of the decision soon after the decision is out, hopefully before academics and appeals courts have had time to digest it, and 3) Helping editors improve their writing skills and generating a writing sample for future job applications. The question is, will blogs drive case comments out of business?
My sense is that blogs have eclipsed the first two functions of case comments. How Appealing alerts readers to new court decisions, often on the same day they are published (at least when Howard doesn't have the nerve to go on vacation). Within a matters of days, the blogosphere usually generates a discussion among practitioners, law professors, students, and interested laypersons about the merits of notable decisions. In general, the quality of legal analysis generated by the blawgs is notably higher than that of case comments; practitioners and law professors have more expertise and experience than 2Ls, and the back-and-forth debate online generally tightens loose thinking pretty quickly. In contrast, student case comments are usually short on perspective and long on political agendas; the majority seem to fall into the "I'm liberal and want to bash the Rehnquist Court" mold, or the "I'm conservative and this Reinhardt decision is nuts" mold.
By the time case comments come out, usually about a year after the decision, it is too little, too late. Litigants, judicial clerks, and anyone else involved in the case can read the output of the blawgs online and take away whatever lessons they wish from the commentary; few are going to go hunting through westlaw for student comments a year or two later. For example, if Eugene blogs about a First Amendment decision the day it comes out, offering his assessment of the case and pointing out its strengths and weaknesses, will anyone care if a year later the Brown Journal of Law and Identity publishes a case comment by a 2L editor explaining that he liked or didn't like the decision? In a pre-blawg world, such a case comment might be the very first piece of analysis on the case; it could be important because there is nothing else on the opinion. The role of first responder is now played by the blogosphere.
Perhaps the third function of case comments is enough to keep case comments alive, at least for a decade or two. But my prediction is that journals will eventually stop publishing case comments and instead focus more on scholarship surveys (where student reviews could be very helpful) and broader note topics.
Thoughts? Reactions? I have enabled comments.
My sense is that blogs have eclipsed the first two functions of case comments. How Appealing alerts readers to new court decisions, often on the same day they are published (at least when Howard doesn't have the nerve to go on vacation). Within a matters of days, the blogosphere usually generates a discussion among practitioners, law professors, students, and interested laypersons about the merits of notable decisions. In general, the quality of legal analysis generated by the blawgs is notably higher than that of case comments; practitioners and law professors have more expertise and experience than 2Ls, and the back-and-forth debate online generally tightens loose thinking pretty quickly. In contrast, student case comments are usually short on perspective and long on political agendas; the majority seem to fall into the "I'm liberal and want to bash the Rehnquist Court" mold, or the "I'm conservative and this Reinhardt decision is nuts" mold.
By the time case comments come out, usually about a year after the decision, it is too little, too late. Litigants, judicial clerks, and anyone else involved in the case can read the output of the blawgs online and take away whatever lessons they wish from the commentary; few are going to go hunting through westlaw for student comments a year or two later. For example, if Eugene blogs about a First Amendment decision the day it comes out, offering his assessment of the case and pointing out its strengths and weaknesses, will anyone care if a year later the Brown Journal of Law and Identity publishes a case comment by a 2L editor explaining that he liked or didn't like the decision? In a pre-blawg world, such a case comment might be the very first piece of analysis on the case; it could be important because there is nothing else on the opinion. The role of first responder is now played by the blogosphere.
Perhaps the third function of case comments is enough to keep case comments alive, at least for a decade or two. But my prediction is that journals will eventually stop publishing case comments and instead focus more on scholarship surveys (where student reviews could be very helpful) and broader note topics.
Thoughts? Reactions? I have enabled comments.
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Blogs will further erode the utility of case comments, but several prior developments had already rendered case comments nearly useless, imho. Even before the internet mushroomed, hard copy, topical reporters and advance sheets were the most common way practitioners learned of new developments; legal newspapers started publishing all new reported cases, with blurbs, for each jurisdiction; the relatively recent CLE requirements increased the number of "new developments" talks we attend; and email listservs for legal specialists became a major source of information for the experts in any field.
Practitioners are drowning in information and early analysis of new cases. Practitioners get bombarded with daily emails, and e-copies of advance sheets. Many of the topical reporters have instant analyses from leading experts who want to maintain their reputations and who view their contributions as promotional practice-builders.
Speaking for myself, I can't imagine that case comments have served either of the first two functions for many years now, but I'd be interested to hear otherwise. I wouldn't be surprised if in the protected market of law reviews the third function lingers on for a long time.
John Steele
Palo Alto
Practitioners get bombarded with daily emails, and e-copies of advance sheets. Many of the topical reporters have instant analyses from leading experts who want to maintain their reputations and who view their contributions as promotional practice-builders.
Indeed.
I don't really see blawgs as adding anything of substance to that mix. I track new cases in my area regularly and looking on blawgs for material has panned out pretty much as futile compared to the other areas, though John does well to note MCLE programs as well.
As to case notes, the web provides a real opportunity to make them relevant again. Instead of a year's lag between issuance of the opinion and publication of the note, the web ought to be able to cut down the gap to a week or two. Why can't the editors scan the blawgs and the Court of Appeals' web sites for noteworthy new opinions, and assign casenotes to staffers on a rolling basis, posting them to the review's web site as soon as they're ready? I agree that blawgs (and daily opinion sheets) can do a good job, but a well-written and researched note can often provide a bit more context.
You are right that practitioners in specific areas have lots of resources to learn about recent cases, and that law review case comments aren't useful for them. But case comments aren't written for practitioners in the first place; they are mostly written for judges and law professors. As best I can tell, judges and law professors usually don't receive commercial service updates about recent cases.
If, as has been suggested, the case note is for a judge or an attorney who may be analyzing a similar issue, a published law review case note provides two benefits that a blog does not:
1) the "authority," as it may be, that it was published and vetted in a law review journal--in the scale of persuasive precedent, a vetted law review article seems presumably more highly ranked than a blog; and
2) a bibliography of relevant sources--at at least some law reviews, a case comment is not considered relevant for the analysis contained therein, it is more relevant for the bibliography of relevant sources that the original decision may have missed
Of course the above are dependent upon your view of the purpose of a case note. If the purpose is to foster discussion of the case (which it must be in some small fashion), a blog entry is decidedly superior. If, however, it is to foster discussion of a case in an academically vetted environment with hopefully reliable sources, a law review case note is drastically different than a blog discussion.
In either case, I am sure we will one day see a judicial decision cite a "case comment" published in a blog. Is such a blog entry, fully cited and fully commented upon by external readers, better or worse than a published, cite checked case note?
I would say that hopefully the cite checked case note is of better quality, but the blog sure does beat the publication time.
I can't really speak for full-time professors, but I had thought that they were active participants on the specialized listservs, received the BNA updates and other advance sheets in their fields of specialty, and participated in the CLE presentation circuits. Is it really the case that until blogs came along the profs were relying upon case comments?
I can't speak for judges either, but I do see many of them attending or participating in "recent developments" CLE panels on various topics. Same question, I guess: have sitting judges really been relying upon case comments to learn about recent developments?
Seriously, how good are, say, Powerline and DailyKos? Now, how good are the New York Times and Wall Street Journal?
I find it oddly optimistic to suppose that some blog authors would buck the trend towards dumber analysis online simply because they're lawyers.
Law Reviews should have their students write insightful articles about subjects, and not just summarize a case whose newsworthiness passed a year ago.
Many (but not all) of the specialized istservs are maintained by Washburn University, but I can't seem to find their main page for listserv subscriptions. Each list has its own formal rules about eligibility, and most have informal norms about interaction.
Then again, I somewhat regret the opportunity to complain about cases and up my publication count.
As for the question about who reads through Law Reviews, the answer is nobody. However, the journal form is the easiest current way to disseminate edited scholarship in a way that makes it easily findable and citeable later.
Electronic databases are useful, but are not always practicable- keep in mind that these journal articles are, potentially, not just for the attorney with access to Lexis, but also the random patron of the public law library (the two of which I've visited maintain current subscriptions to my journal) who probably doesn't have that same luxury, and has to do everything out of printed materials.
I suppose that we could go to a monograph system, but then we'd be dealing with printing and mailing costs that are needlessly duplicative- issuing several articles at once in an issue is just somewhat easier.
That said, the most notable difference I can imagine is that comments will be more informed. Law students will be able to visit great legal minds and interact before writing.
I believe this will be invaluable to student comments and make them a more, not less, valuable commodity. In the future, part of the standard preparation for comments will include visiting the blogs of professors and practioners to see what the legal community is buzzing about.
In the end, the comment may be more of an amalgamation of thought, but certainly superior to the useless garbage that is usually produced.
More than 700 LR articles now cite Lawrence. Probably 150 or more of those are focused on a subject to which Lawrence is highly relevant, while the rest are largely tangential citations. A distressing percentage of the 150 or so are highly superficial rehashings of the case and the state of the law before Lawrence, plus a little "we'll have to wait to see what impact this really has" rhetoric tacked on to the end. A dozen or more are just rah-rah pieces, saying, "Yay! We finally won!" And, BTW, professors seem just as capable of wasting space in the journals with such useless writing as students.
But a handful are in-depth, hard-core, tightly reasoned analyses that go well beyond anything that was or likely could have been written as a first impression. To the extent that authors are forced to read between the lines of the opinion (because it is so broad and nonspecific), these pieces do so with cogent, detailed reasoning for making a particular reading, or projecting how future courts will apply the Lawrence reasoning. I would include in this handful the McDonnell article, as well as Barnett, “Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas,” 2003 Cato Supreme Court Review 21 (2003)(available at http://randybarnett.com/pdf/ revolution.pdf); Carpenter, “Is Lawrence Libertarian?” 88 Minn. Law Rev. 1140 (2004); Tribe, “Lawrence v. Texas: The ‘Fundamental Right’ That Dare Not Speak its Name,” 117 Harvard Law Rev. 1893 (2004); Hunter, “Living with Lawrence,” 88 Minn. Law Rev. 1103 (2004); and Sunstein, “Liberty After Lawrence,” 65 Ohio St. Law J. 1059 (2004).
If students are, by reason of lack of depth of experience, generally unable to produce this kind of analysis, then, yeah, I'd say they're not much more useful than blogs. Perhaps a smarter strategy would be for students to look for cases that have been overlooked, that have significance beyond what is at first apparent.
My view on Law Review Case Comments is that the last time I read one was about 30 years ago when I graduated from law school. They certainly don't have a news function since anything in a Law Journal is a minimum of 2 years old. Forget Blogs. Newslettlers and CLE conferences have long since beatten any important case to death by the time a student case comment comes out.
Nor do they substitute for reading the case itself, which is also important.
Case Comments bring nothing to the table in terms of analysis because they are written by complete amatures.
Most practitioners are fairly specialized today. I practice in areas like tax and estate planning that are of no interest to students, seldom produce case comments and those that are are seldom informed by nesessary non-legal experience.
I guess students need to practice their research and writting skills. But I don't have to grade their papers. I am not being paid to do that.
For 1), blogs will never replace case comments unless students start putting 3-6 months of research into every blog post, or into a series of blog posts on the same subject.
For 2), I think that case comments on "big" cases have always been useless because everything worth saying about them usually gets said by people who are better at it than students. When the Supreme Court issues a decision like Lawrence, McConnell, Booker, etc., law professors, reporters, and whole spectrum of pundits swarm on it, and there's nothing useful, novel, and nonobvious left of the carcass for law students to analyze. Good case notes are the ones that grab the cases that fly under the radar and add some insight.
I don't see blogs making these kinds of case notes obsolete unless the "good" part of the blogosphere continues to grow. Right now I am aware of less than 10 blogs that provide any kind of useful analysis on any cases that would interest me. This blog picks up a few good First Amendment cases, but only says a few paragraphs about them. How Appealing flags the opinions, but doesn't say much about them beyond rehashing the syllabus; Berman's blog gets most of the juicy sentencing opinions and provides a lot of depth; SCOTUS does a good job of discussing Supreme Court opinions; and Patently Obvious gives a good analysis of Fed Circuit opinions, often the day of. And a lot of other blogs tack on a few insights, but that's about it. Most blogs run by practitioners and law professors are either political rants or links to the cases and a few words to the effect of "isn't this interesting."
The sum total of the blogosphere's analysis of good cases is just a good starting point for detailed and insightful analysis, not something that's out to replace it. I see blogs popping up everywhere, but "good" blogs don't pop up very often.
I think that most people's problem with student case comments is that a lot of them are just badly-written. They often have many of the trappings of professor-written articles (useless digressions, excessive footnoting, interdisciplinary angles, pretentious language) without much of the redeeming substance. To the extent that this is the state of student case comments, nothing is really going to "replace" them.
Good student case comments come along about as often as meritorious habeas petitions.
Will blogs eliminate Law Reviews (no) or change what they do (remains to be seen.) Pretty obviously, just about everyone finds case comments pretty useless, but so is most of the commentary in law reviews and many other places. Blogs--or the few really good ones anyway--are places where useless crap can be revealed as such. This is what blogs do to most law review articles by completely (and justifiably) ignoring them.
The idea that "first is best" permeates many of the nay-saying posts, but I'm just not convinced that it is so. At least at my journal, the function of the comment is not only to report the outcomes of cases, but also to provide thoughtful commentary on the decisions. As good as Volokh and a few others are, why should we assume that their first ideas about a case will be the best thoughts? In some cases, I would think the opposite to be true; rather than dashing off a post in order to beat Bashman to the punch, student editors spend a great deal of time with a single case in order to craft a careful argument about the matter at hand.
Online discussion was mentioned as a reason why online ideas are superior to printed pieces. Law review editors do not author their comments under cover of night, alone and fearful that others might discover their work. They talk to colleagues, professors, online discussion groups, and even non-lawyers during the writing process. So the discussion point is non-unique.
As for the talent of the writers, readers would do well to remember that many of the law review editors at Yale, Harvard, Chicago, and Stanford are only a few years removed from teaching careers of their own. I think that even if weblogs threaten the case comment, the impact will not be felt among top-tier journals, whose editors have the ability and the incentive to create insightful case comments that offer concise, useful, and thought-provoking analysis.
Good ideas will never be obsolete.