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How the Internet May Help the Accuracy of Legal Scholarship:

As I mentioned last week, I've agreed to write a short essay on how the Internet might affect legal scholarship, and now I have to find something interesting to say (beyond, of course, what I've already written in my Scholarship, Blogging and Trade-offs: On Discovering, Disseminating, and Doing paper). My tentative thinking is to try to limit the question to how the Internet may help the accuracy of legal scholarship -- not necessarily by a vast amount, but at least in some measure. (I define accuracy broadly to focus on helping readers get an accurate view of the world; this can be done by making each article more accurate, by making it easier for readers to see rebuttals to an article, by making it easier for readers to check the article's assertion, and more. I'd be happy to find a clearer term than "accuracy" for this.) Here are a few thoughts I had:

  1. Unpublished sources can now be put online very easily, so readers of an article can check the sources themselves, and thus rely on the original sources rather than on the article's summary of the sources (which, even if accurate, is necessarily incomplete and often inherently misleading despite the author's best efforts). Perhaps law reviews should even insist on this, at least for most sources (setting aside occasional confidentiality or copyright worries), and make sure that the sources are kept in a fixed place so that readers won't need to worry about link rot.

  2. If unpublished sources are indeed put online, this may make authors more careful in their characterizations of the sources.

  3. A more ambitious idea: Now that articles are read mostly in printouts from online sources (whether WESTLAW and LEXIS, where they're just in text, or HeinOnline, where they look exactly like they do printed page), how about having those sources keep track of which later articles respond -- in whole or inpart -- to the article that's being printed or displayed, and link to those articles? Think of that as a Shepard's or a QuickCite for articles.

  4. A related idea: How about trying to develop a norm in which law review editorial boards welcome both corrections and responses to existing articles (or more often parts of the articles), and publish them in a way that anyone reading the original article will see that commentary?

In any event, that's just what I'm playing around with in my head -- I'd love to hear more thoughts that some of you might have along those lines. Thanks!

Related Posts (on one page):

  1. How the Internet May Help the Accuracy of Legal Scholarship:
  2. How the Internet Might Affect Legal Scholarship:
Colin (mail):
Doesn't Yale's Pocket Parts solicit short comments on articles published by the parent journal? That seems like a way to detect (and correct) published errors, in keeping with #4. I'm not sure that a reader of the original article would come across the PP commentary, unless Yale demands that West and Lexis update their citations to include the comments, but it's a start.
8.7.2006 5:44pm
Res Ipsa (mail):
"A more ambitious idea: Now that articles are read mostly in printouts from online sources . . . , how about having those sources keep track of which later articles respond -- in whole or inpart -- to the article that's being printed or displayed, and link to those articles?"

Not particularly ambitious at all, since it's already being done. If you look up a law review article in Westlaw (and IIRC, Lexis as well), it will have a "Citing References" flag, the same way cases do, which will show what other sources have cited that article.
8.7.2006 6:00pm
Eugene Volokh (www):
Unfortunately, the citing references list all the articles that cite the original, with no explanation of whether the article criticizes the original, purports to show errors in the original, or what have you. That generally ends up making the feature not very useful to those who want a quick sense of whether there's anything in the article that might deserve extra skepticism.
8.7.2006 7:08pm
Bob Leibowitz (mail) (www):
Eugene -- Three possibilities occur as potential improvements as a result of bringing a freer market to bear on legal scholarship.

First, fact- and law-checking should improve in the original as the cost of doing so approaches zero in dollar terms and decreases substantially in terms of time invested. As the quantity of information increases each year, we will want to see, and will see, equally dramatic improvements in accessibility as search engines and 'bots become better at mimicking intelligent behavior. This should be a significant boost to original research and powerful synthesis.

Second, because facts and law can now be so easily checked, the integrity of materials published should also improve, perhaps very significantly. Just as pundits are commenting today about whether the two obviously faked HAJJ photos may be the end of the story or just the very beginning, the ability of users to immediately review original source materials will enforce a sober sense of rectitude amongst scholars potentially at risk for a thumb placed anywhere on the scale of their writing.

Third, the internet will allow those who seek immediate and intimate access to an original source the opportunity for the experience. Think of the times you and your fellow Conspirators have asked for expert audience participation in fact finding?

It will happen rapidly; the market will place greater value on those who can write best and most accurately. The market will devalue those who can't. (See: Ward Churchill. Without the web, he'd still be effectively unchallenged).

It's a great time to be in your business, to be smart and honest! The landscape just five years from now will look little like what we see today.
8.7.2006 7:17pm
frankcross (mail):
I don't see much effect absent a culture change. Legal scholarship doesn't have much of a practice of replication, probably because of the subjective content that is common. Westlaw and Lexis already provide a very easy check, using hotlinks to most of the citations in the footnotes. But I haven't seen people using this to do much checking on the content of articles. Now, the internet may provoke a culture change, but I doubt it would do much absent a shift in legal scholarship away from the subjective. And I suspect the greatest "inaccuracy" in scholarship lies not in what an article cites but in what it does not cite.
8.7.2006 7:52pm
DC User (mail):
Actually, there already is Keycite for articles on Westlaw. Doesn't link to Web sources, but it cross-links to any Westlaw-available sources citing the article.
8.7.2006 7:58pm
Goober (mail):
Meh. Blogs are for teenagers with myspace pages; grownups write things on paper and bind them in books.

As a general rule, is there any web source other than wikipedia that is more accurate or reliable than its paper equivalent? Blogs are supposedly self-correcting; that obviously hasn't stopped an increasing number of bloggers from saying demonstrably inaccurate or logically flawed things.
8.7.2006 8:47pm
John Jenkins (mail):
Blogs are supposedly self-correcting; that obviously hasn't stopped an increasing number of bloggers from saying demonstrably inaccurate or logically flawed things.

Yes, and the printed page is completely immune to that sort of thing, except for Al Franken, Ann Coulter, Al Gore, Rush Limbaugh, every postmodernist writer around (of course, if you reject logic, then you can't be logically flawed!). *Media* aren't inherently accurate or inaccurate, which is so obvious, it makes me wonder why anyone would make such a logically flawed argument.
8.7.2006 9:42pm
John Mayer (mail) (www):
If you haven't seen it already, check out Jonathan Zittrain's article that got posted to Groklaw and the ensuing 260+ comments of discussion.

Zittrain followed up with responses to the questions, comments, confusions et al.

It's practically a case study about your topic.

BTW, I blogged about it here.
8.8.2006 5:54am