That's So Six Months Ago: Challenges to Student Scholarship in the Age of Blogging
The days of the case note—and of student scholarship focusing on current developments in the law more generally—may well be numbered. With the proliferation of “legal development” blogs (for example, SCOTUSblog for the Supreme Court, the venerable How Appealing for appellate litigation, Decision of the Day for the work of the thirteen U.S. Courts of Appeals, more localized efforts along the lines of the not-very-confusingly named Southern District of Florida Blog, and field-specific blogs such as Doug Berman’s Sentencing Law and Policy), rare indeed is the important legal development that goes unnoticed in its immediate aftermath. The debate over the viability and utility of such instant legal commentary notwithstanding, it is beyond question that law blogs have accelerated the pace at which we learn about new issues in the law. But at what cost?
I. Blogging and Student Scholarship: Framing the Problem
Significant attention has been paid, both on blogs (shockingly) and in more traditional media, to the interaction between these law blogs and “scholarship,” including an April symposium hosted by Harvard Law School’s Berkman Center for Internet and Society, How Blogs Are Transforming Legal Scholarship. Much of the debate focuses on whether and to what extent such blogging is scholarship and, to a lesser degree, whether those who so blog are undermining their professional resumé, particularly in the case of junior faculty bloggers. The Berkman Center symposium, however, is emblematic of the larger myopia that pervades this scholarship on blogging quascholarship: the unsurprising propensity to focus solely on the relationship between blogging and individual research, and not on the global impact of what Larry Solum has called “the disintermediation of legal scholarship.”
As a result, we have, to date, paid particularly little attention to the impact of legal blogging on the one genre of scholarship most traditionally conducive to recent developments—the student note. Nor, for at least two reasons, is an empirical study of the effect of blogs on student writing easily conceived or undertaken. First, there is the simple yet oft-overlooked fact that most student writing is not published. Second, even when student writing makes it into print, pieces centrally concerning recent developments constitute no more than a sizeable minority of published student scholarship, especially in the “top” (or at least most visible) journals.
The absence of empirical evidence notwithstanding, blogging will have (and has had) a significant impact on student scholarship. As just one example of many, consider a Recent Case note in the June 2006 issue of the Harvard Law Review on the pattern of error in immigration cases, focusing on especially vitriolic decisions of the Third and Seventh Circuits from late 2005. The extensive blog coverage of the same problem (including posts on PrawfsBlawg and The Volokh Conspiracy), followed closely on the heels of the filing of the Seventh Circuit’s opinion in late November 2005, over sixmonths before the note was published. Thus, a perfectly well-conceived and thought-provoking student piece was, arguably, preempted long before it was in print.
Moreover, although my own blogging hardly qualifies, such contemporaneous current events coverage is often undertaken by the leading experts in the field. Nowhere is this perhaps more pronounced than in the field of federal sentencing law, where, in the aftermath of Blakely v. Washington and United States v. Booker, Doug Berman’s Sentencing Law and Policy blog has become the leading reference for courts and commentators alike. As noted by the 3L Epiphany blog, Berman’s blog has been cited at least twenty-four times in nineteen different federal court decisions, including by the U.S. Supreme Court, the en banc Second Circuit, and the Tenth Circuit, just to name a few. As of August 16, 2006, the blog has also been cited in at least seventy-eight law review articles.
And the experts are writing blog posts qua case notes, too. As an archetypal example, consider Marty Lederman’s post on Balkinization thoroughly (and immediately) deconstructing the D.C. Circuit’s recent decision invalidating a provision of the Tax Code on Sixteenth Amendment grounds. Given similar efforts by literally dozens of law professors on the TaxProf Blog and elsewhere, it is hard to fathom how a student case note analyzing the decision would not be both preempted and, perhaps worse, untimely.
With instant coverage of current developments from the leading professional commentators, what is left, after blogging, for aspiring student authors? As I suggest in this short Essay, quite a lot, I think. But the impact of blogging on student scholarship will require law schools generally (and those who supervise student scholarship specifically) to rethink some long-held beliefs about the virtues, vices, goals, and purposes of student writing.
II. Student Scholarship in the Age of Blogging
Student scholarship’s traditional propensity to focus on current developments is easily explained both substantively and procedurally. Students have long been better situated to respond to immediate developments in the field, largely because they are not professional academics (not yet, anyway), and therefore tend not to have a research agenda already established, a backlog of papers that they are waiting to write, or an in-progress project preventing them from shifting gears midstream. Students are also, in many ways, better generalists. Because of their constant exposure to different fields in the classroom (and during the summers in the workplace), it is entirely possible that students are better positioned to more quickly identify developing cross-currents in specific fields than their faculty advisors.
And yet, perhaps the most important aspect of students’ historical comparative advantage is best summed up in one inescapable truism: the turn-around time for student-written scholarship has typically been dramatically shorter. One example from personal experience helps to prove the point: As a first-semester 2L, I wrote a comment for this Journal on 18 U.S.C. § 4001(a) and its implications in the Hamdi v. Rumsfeld and Rumsfeld v. Padilla cases that made it from submission to print in just over three months, and that was the first academic piece to discuss the provision, save for a footnote in a (you guessed it) student-written Developments piece in the early 1970s. It wasn’t that I was the only person looking closely at § 4001(a); it’s that I was in the best position to do so quickly, having written several memos about the same issues while working as an intern the previous summer at the Lawyers’ Committee for Human Rights.
But whereas student scholarship has long exerted a stranglehold over current legal developments, it has never been limited to consideration of the same. Even in the last several years, my own favorite published pieces have included student notes having little, if anything, to do with recent legal developments, including a fascinating Harvard Law Review note by Allison Tirres on race, border issues, and the El Paso Salt War of 1877, Tara Helfman’s piece in this Journal on an early-nineteenth-century experiment in humanitarian intervention in West Africa, and an unconventional law-and-economics-based argument against the jurisdictional nature of subject-matter jurisdiction in a December 2005 Columbia Law Review note. There is, of course, no accounting for taste, but the reality is that these pieces demonstrate a point that is not wanting for such evidentiary support—that students are just as capable of producing quality scholarship not based on current developments in the law as are their faculty advisors.
III. Possible Solutions
That leaves us, then, with two questions going forward. First, especially at those law schools where recent-development work constitutes a higher percentage of student scholarship, how, if at all, can we as institutions promote student work that is less susceptible to the challenges raised by legal blogging? Second, to where should we direct student scholarship that is tied to current developments? Are law reviews still the appropriate forum?
The second question admits of perhaps the easiest answer, for there is no reason why students can’t do just what we faculty folks have done—blog. Indeed, for every law professor blog, it seems that there are nearly a dozen law student blogs, many of which have quite serious academic bents (as just one example, see Crescat Sententia). However unintentionally, citations to student blogs have even begun to surface in judicial opinions, suggesting the possibility that, just as student scholarship evolved in tandem with faculty scholarship as a source for courts and commentators, so too student blogging may evolve alongside faculty blogging.
Answering the first question is far more difficult. To the extent that many student papers in law school derive from work in seminars, one solution would be for professors (like me) who teach seminars on current events to encourage papers that take a more holistic view of the field, and that focus more on historical developments, overlooked issues, or new methodological approaches, rather than on what is so timely and interesting now (and what will therefore no longer be such, six months later). That is to say, our job may well be to dissuade our students from writing the more superficially interesting paper, in favor of scholarship that has at least the potential to have transcendental significance. Examples of such student writing, as noted above, are readily apparent. This burden is a difficult one to bear, all the more so because professors seldom have incentives to devote the necessary additional time and assistance to such deeper, subtler scholarship.
But as much as the burden is on us as professors to steer our students toward the more academic (and less sexy), so too should student-edited law journals be charged with the responsibility to promote these other forms of student scholarship. Thus, whereas this year’s write-on competition for the University of Miami Law Review focused on the Supreme Court’s June decision in the Hamdan case, a write-on competition that instead focused on an obscure statute or constitutional provision, or a neglected area of substantive law, might better foster, both directly and indirectly, the type of scholarship capable of surviving in the age of blogging. Clearly, there is much to be done, lest countless pieces of student scholarship fall prey to preemption concerns because of earlier blog coverage of the same subjects.
For reasons both structural and logistical, students have long played the role of reporters in the legal academy, and student notes summarizing current legal developments can be found in the earliest issues of the holy trinity of law reviews: the Harvard Law Review, The Yale Law Journal, and the American Law Register, predecessor to the University of Pennsylvania Law Review (and the oldest of the student-edited journals). Harvard’s Supreme Court and Developments issues, perhaps the most celebrated class of student scholarship, have been staples of academic literature since the late 1940s. And during one particularly noteworthy (sorry; couldn’t resist) Supreme Court Term, fully one-quarter of the references to secondary sources in majority opinions were to student notes.
Indeed, it is almost a certainty that I wouldn’t have the job I have today (and therefore wouldn’t be here, in more ways than one) were it not for work I published while in law school. But I was lucky to go to law school when I did; way back when I was a student (that is, three years ago), we were the proverbial kings (and queens) of the current-events field of legal scholarship, and the work I published as a law student was predominantly based upon current events. As blogs increasingly preempt such scholarship, and as law journals, understandably, take a longer view of the utility and importance of publishing such work, it is important that we not forget the impact that blogging will therefore have on aspiring student scholars. That is to say, it is for the next generation of legal thinkers and law professors, and not for those of us who got in on the ground floor, that law blogging may prove the most disruptive. For those of us who blog what we teach and teach what we blog, our efforts and our energy might better be directed toward looking out for the next generation.
Stephen I. Vladeck (firstname.lastname@example.org) is an Associate Professor of Law at the University of Miami School of Law, a regular contributor to PrawfsBlawg (http://prawfsblawg.blogs.com), and a former Executive Editor (Volume 113) of The Yale Law Journal.
Preferred Citation: Stephen I. Vladeck, That’s So Six Months Ago: Challenges to Student Scholarship in the Age of Blogging, 116 Yale L.J. Pocket Part (2006), http://yalelawjournal.org/forum/thats-so-six-months-ago-challenges-to-student-scholarship-in-the-age-of-blogging.