Law Review Articles in Decline?

Here’s an interesting post from the Adjunct Law Prof Blog:

Has the ready availability of digital law review collections on LexisNexis, Westlaw, HeinOnline and law review websites eliminated the need for subscribing to law reviews?

…

And then there is the irrelevance factor. Maybe law review articles simply are not as relevant to members of the bench and bar as they once were…

The author concludes with an interesting prediction:

Judges just don’t use [law review articles] any more. My own view is that in todays world there is a waste of emphasis on legal theory which no one, other than other law review writers, find helpful. Law reviews also take too long to publish. My last two article each took well over a year to get published!

I believe online short law review journals are the waive of the future together with blogs which provide immediate commentary on developing issues.

Oh, really?  I can only express a cautious and guarded optimism in the thought that online media is becoming a new source of legal treatising, commentary and theory; however, I firmly believe law review articles have a very special place in the legal world.

A law review article can expound with more information, more insight, more analysis and more stimulation than a blog article could ever hope to contain.  And believe me, I love blogging but let’s face it, this just ain’t the way to go about things.

If law review articles are in decline – and what I’m about to say is highly speculative and subjective – it’s because:

1. Like the blog author noted, WestLaw and LexisNexis provide online access to hundreds of law review articles, all of which can be accessed via term, connections and keyword searches.  This quick and easy feature of online databases puts mail-based subscriptions on the back burner.
2. Perhaps the quality of writing and analysis turns away those who are looking for insightful commentary on a legal issue.  Analagogous to this particular notion comes from my experience as a former senior editor of a peer-reviewed, graduate level history journal – not a law review by any stretch of the imagination but both were graduate level publications, each required close scrutiny to citation of pertinent and relevant sources, each required that its authors had some basic concept of fact analysis, and lastly, you had to be able to put a sentence together in a readable fashion.  Much of the entries I reviewed were either bad or catastrophically bad, you wouldn’t have been able to tell these were graduate students.  Fortunately, the articles we accepted for publication were awesome but just thinking about the reject pile makes me shiver over the quality (or lack thereof) of graduate level writing.  I do not find it hard to imagine a similar situation occurring in law review editors’ rooms across the nation.
3. We live in a culture of immediacy – everything has to happen now, now now; attention spans last all of 20 nanoseconds and if we can’t have the information we want then we move on to somewhere else.  Who wants to read a 50 page law review article?  Even 20 is cutting it close.  There is some justification to Mitchell Rubinstein’s prediction that online media like blogs are better for up-to-the-minute commentary and analysis.  Why skim the rows of the law review section of the library when you have google?

Despite this, however, I believe in declines as much as I believe in renaissances.  Sooner or later people are going to realize that the informational quick fix is nothing like the mature, well-written, engrossing and longer law review article.

 

Sometimes blogging about the law is depressing.

Particularly when the area of law is copyright and intellectual property – or, according to a recent Legal Blog Watch post covering the demise of two storied “blawgs” (blogs + law = blawgs! Get it?) One former blawger decided to call it quits because:

“On top of this, there are the crazies,” he wrote, “whom it is impossible to reason with, who do not have a life of their own and so insist on ruining the lives of others, and preferably as many as possible.”

And also:

His second reason was that he found the current state of copyright law too depressing. “It is profoundly depressing, after 26 years full-time in a field I love, to be a constant voice of dissent. … I cannot continue to be so negative, so often. Being so negative, while deserved on the merits, gives a distorted perspective of my centrist views, and is emotionally a downer.”

The second blawger had complaints about the random crazies that only the Internet can produce as well as chiming in on his own thoughts of depression:

“It is depressing,” and, “It is really depressing.” The depressing part, he said, was that “nothing seems to staunch the flow of the [IP] rights grab by big business.” The really depressing part, he added, was the flood of calls he was getting from people seeking help after being sued by the record industry for file sharing. “The sadness in their voices pains me.”

As for me, so far so good.  I wouldn’t go so far as to say that blogging about the law is depressing but, of course, I don’t have a 20+ year career like the gentlemen that preceded me.  My interests are labor, employment and workers’ comp plus some special interests like Native American law and National Security.  I’m sure I would have some candid things to say about what I thought about these areas of the law after some time, but of course, I would hope (and I do mean hope) that I would not come to the point where I’d be depressed.

 

Deep in the Trenches (Spring 2009 Edition)

Hey all,

Don’t expect too many posts out of me – currently knee deep in classes.  Some updates:

1. Two thirds of the way through a research paper.  It’s not for class; it’s a public writing competition for the Public Law section of the California State Bar.

2. Still reading for my classes.

3. I’m very anxious to write the next article in my tribal disenrollment series.  I truly had no idea how expansive those things were going to be much less the attention I’ve received from them.  At the very least I hope I’m shedding some light on one of the least-known aspects of federal Indian law and tribal sovereignty.

4. Once the disenrollment series is done I want to focus my attention on my second legal scholarship hobby: the War on Terror.  Currently taking a Law & War on Terror class at school and it’s the greatest thing ever!  Hope to begin writing some things about Gitmo, Obama, and what we’re going to do with present and future detainees.

5. Finally starting to get over this cough.

Best of luck to all of you and thanks for reading!

- Erick Rhoan

 

Deterioration of Legal Writing?

An interesting article from Legal Blog Watch:

A few months back, we posted about the deterioration of legal writing and theorized that the proliferation of e-mail, texting and Twitter — all of which encourage stream-of-consciousness ramblings and careless phrasing — might explain the erosion of writing skills. It turns out there’s a more serious cause: legal education, or lack thereof.

Inside Higher Education reports that results of the 2008 Annual Law School Survey of Student Engagement (LSSSE)  show that nearly half of all law students believe that law school does not “contribute substantially” to their ability to “apply legal writing skills” in the real world. Though most students feel that law school offers adequate opportunities to write papers and memos, more than a third wished for hands-on experience in practice-related writing, such as drafting motions or transactional documents.

I came from a graduate degree program before heading to law school and even though I felt like I could write really well, learning how to do it in a legal fashion took some time to learn.  And I still think I don’t have it right yet.

However, I wouldn’t put that on my school or my legal analysis/research professor.  I put that on myself.  Like most law students I have access to WestLaw and Lexis; briefs and motions are always available to view at a moment’s notice.  Legal writing takes practice and let’s face it, some people adapt more quickly than others and for the rest of us we just need time and patience.  If we have allowed our writing skills in general to deteriorate through Facebook, Twitter, etc. it’s not the school’s fault, it’s our own.

The LSSSE study found that few students used computers to download sample copies of briefs that could be used as a writing or study aid.  Instead, many students who use computers in the classroom do so to e-mail each other, surf the Web or play video games.

See what I’m talking about?

[Martha Sperry] recommends integrating legal research and writing into specific substantive courses so that, for example, students could learn to draft articles of incorporation while studying the basics of corporations law.

Now that sounds interesting.  Or how about drafting a contract in your contracts class?  A disclaimer for torts when hitting the products liability section, motion to demurrer in civil procedure, and so on?  Doesn’t sound like a bad idea.

At a time when we communicate in sound bites and blog-blurbs and lack the attention span to focus on sentences of more than 140 characters, can legal writing in its present form survive? Or is that the point: Should law schools be focusing on ways to ensure that legal writing keeps its relevance in the age of the Internet?

Let’s not pass the buck.  It’s the law student’s concern that they can’t write well, not the schools.

 

A New Voice in the Blogosphere

My friend, former SJCL law librarian, Brian L. Baker has started a brand new blog: Life on the Outskirts, a blog dedicated to the musings in the legal world and the vital and arduous ABA Accreditation process.

 

Law Student Blogging – Setting Up Your Own Research Blog

Introduction

Laptop Keyboard

According to a March 8^th, 2008 blog post from the Frugal Law Student, every law student should blog.  It is a thesis statement that I whole-heartedly agree with.  Blogging as a means of showcasing one’s research and writing ability has taken hold all over the world.  Law firms have caught on and it is not uncommon to see a firm page have links to their own blog; some law firms’ pages are just the blogs themselves or showcase the blog as the main area of their firm’s website.  One of my favorites is the California Labor & Employment Law Blog maintained by Carlton DiSante & Freudenberger LLP.  Another is the FCPA Blog maintained by CassinLaw LLC.  The California Workforce Resource Blog (maintained by Van Vleck Turner & Zaller LLP) published a February 13^th, 2008 blog article titled: “Why Every Client Should Want a Lawyer Who Blogs.” Both the Frugal Law Student and California Workforce Resource articles revolve around the same themes: clarity of communication, quality of communication, and the potential of future communication – particularly using the blog as a means of marketability and name recognition.

I started Strict Liability in Blog for those reasons: to market myself, my writing and research ability; and to have a little fun, all the while communicating in a clear manner that may someday pay off for me.  Sometimes law school can take a toll on one’s mind after a while (current 1Ls know this all too well) and it helps to have some place of solace, a forum to vent one’s energy or frustrations and oftentimes the comforting anonymity of virtual reality that the internet provides is the perfect shoulder to cry on.  However, the problem with creating a blog to pen your memoirs, diatribes, and praise is that it can lead to ill effects – the least of which is getting sued for defamation or copyright infringement.  At the least actionable end of the spectrum, blogging one’s list of daily activities, thoughts on one’s current reality and how you spent your day off may not be material suitable to be classified as marketing material.  Perhaps most of all, one shouldn’t be so quick to scribe their personal information over the internet.

So, what then, can a law student blogger do to release a little energy, have fun, and build up a reputation as a person who knows to how handle an AmJur as deftly as a multi-connected keyword search on WestLaw?  The answer I chanced upon was to start my own legal research blog.

Write and Research What Interests You

Strict Liability in Blog sticks to California law because I’m a California law student though occasionally I venture into federal law, but even then it’s usually limited to 9^th Circuit holdings.  You may decide to set up your blog to focus on the research of law from your particular state or jurisdiction.  From there, you could then focus the entire blog to just researching and writing about one particular aspect of the law such as products liability, personal injury, bankruptcy, or something else.  Maybe common law is not your thing – you’d rather dive into the world of federal statutes: the Americans with Disabilities Act, the National Labor Relations Act, the Family Medical Leave Act, or the Military Commissions Act of 2006.  Maybe it’s not so much the law as it is the policy behind the law that gives us these statutes to which our courts then tackle and interpret.  I decided that my interest were far to varied to just lock myself into one area of law or one statute so I write when and where the mood strikes me.  Today I might publish an article on the status of the law on spouses intercepting their (supposedly) cheating spouses in California; and tomorrow I might decide to voice my opinion and status of the law to disenrolled Native Americans.  The next day I might get around to finishing that California dog bite statute article or I may decide to hold it off and write about something else.

Regardless of what happens you should write about what interests you and have fun with it.  It’s your blog – there are many like it but this one is yours.  What are you into?  What are your hobbies?  Loves?  Interests?  What’s going on in your world?

• Suppose you are a California graduate student under the employ of a public University as a teacher’s aide. Are you considered an employee with a protected right to engage in the bargaining process or are you precluded from asserting this right? That’s an article.
• You just received notice via email that your item for sale on eBay was bought but now the winning bidder does not want to pay. The value of the item is substantial. Can you sue? Can he sue back? Should you sue? What procedures come first before filing suit? That’s an article.
• You’re moving out of your apartment and your landlord decides he’s not going to return the security deposit. What’s the law in your state say? What did you go through? How do small claims clinics work? Another article.

To quote myself:

In the realm of legal research blogging is my way of exhaling; just as one can’t hold all the air in them for fear of suffocating, I can’t just learn about all this cool stuff and not share it.

Quick Tips

• If and when you cite cases, statutes, law reviews, etc. be sure to do so in the manner that you have been trained.  I was trained to use the California Style Manual but you may have been trained to use the Bluebook, ALWD, or whatever.

• It’s okay, in my opinion, to have a few non-research posts to let people know what you’re up to – it will break up the tone and mix things up a little, letting people know that not only can you write and research, but you are still a human being with things to do and activities to perform.  The following article sums up my thoughts exactly:

Blogging on diverse topics, including very light ones, is not taken to undercut your expertise among law professionals who understand how blogging works. These people are valuable readers, who will bond with you if you have a personality, write clearly, say some sharp things, and post every day. They will check in frequently in the hope of being charmed or surprised or stimulated in some new way. When you have a law-related post up, they’ll be seeing that too and interested in what you, and especially you, have to say.  In this way, the non-law posts reinforce the law posts.  (Althouse, Why a Narrowly Defined Legal Scholarship Blog is Not What I Want: An Argument in Pseudo-Blog Form (June 2006) University of Wisconsin Law School <http://ssrn.com/abstract=898171> (as of October 4, 2008).

• HAVE FUN.

The Boundaries of Free Speech & Quotes to Know

“Congress shall make no law…abridging the freedom of speech.”  (U.S. Const., 1st Amend.)

“…the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech…”  (Papish v. Board of Curators of University of Missouri (1973) 410 U.S. 667, 671 [93 S.Ct. 1197; 35 L.Ed.2d 618].)

“The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography…”  (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 245 [122 S.Ct. 1389; 152 L.Ed.2d 403].)

 

Deep in the Trenches

Hey all,

Currently studying my heart out – or, well, not really if I’m stopping that studying to write this post, but you get the drift.

The blogging machine that is yours truly is taking a little break because, as all law students realize, I’m busy.  I’m still very much anxious to get rolling on the final tribal disenrollment blog article covering the would-be attempts by scorned plaintiffs to get their cases heard in court.  I have a half-completed article covering the California dog bite statute that I should probably finish.

All in all school is school.  Wake up, study, gym, go to school, sleep and repeat ad nauseum.  Among some notable updates:

1. I was awarded an American Indian Graduate Center Fellowship Grant!  Very, very happy to have gotten that.
2. Currently working up an essay for a Fresno County Bar Scholarship.  Wish me luck!
3. And I’m also working on an encyclopedia article covering the Hamdan v. Rumsfeld case and its relation to the global War on Terror.
4. Considering law review next year, we’ll see…

So, those are the latest dispatches from the law school trenches.  Hope your studies are proceeding nicely!  Take care and see you soon!