Timeliness of Blogs for Legal Practitioners

At this moment there is a new US Supreme Court. That is, the current make-up of the Supreme Court has changed with the confirmations of Chief Justice Roberts and Justice Alito. There are nine justices on the bench, and it is an entirely new situation. This could lead to tremendous changes in the law, and in American society. 

But this Court could be a parenthesis. There is simply no telling how long the current make-up will last. It may be that another justice will retire very soon. Perhaps the Court as it is now will last for three months, and then a new retirement will be announced.

And by the time a law review article is written about the current justices sitting right now, and by the time it is edited and published, that article will be of minimal value to the legal practitioners who need to know what is happening in the law at this very moment. Again, this new Court could be a parenthesis, lasting a brief moment in time, and things could change very rapidly. This is just one example of how the traditional ways of writing about the law are of very little value to legal practitioners.

Suppose the Supreme Court hands down a decision on any issue, not just a major cultural one which everyone pays attention to, but a seemingly narrow technical one which may actually be of enormous consequence. How much value does a law review article about that decision really have, if it is published a year from now? By the time that article is finally published, the nature of the Court may have already changed due to a retirement and a new confirmation. And that Supreme Court decision which is analyzed by the article may already be undone, whether through being overruled, or interpreted narrowly, or amended through progeny. The article may be irrelevant at the date of publication. But postings on a blog can keep practitioners informed on a continuous, day-to-day basis.   

I am obviously not arguing for the demise of law reviews and law journals. They have their significance, worth, impact and value. One of the reasons I created “Footnote 123” was to see if old and new forms of legal publication can be blended successfully. I'm grateful that I'm on a journal, and in a law school, where there is a willingness to try something new, and the freedom to carry it out. I hope that one day my electronic footnote will seem like an obvious and primitive idea. Other law students should run with it and do something far more consequential.

But I will assert emphatically that blogs are superior to traditional means of legal scholarship in a multitude of ways. Perhaps not if you are a law professor, but definitely if you are a lawyer working in the real world, and if you are a law student preparing for practice. Real lawyers, outside the academic enclave, need to know what the law is right now. They need to know how the law changed yesterday afternoon. Not just at the Supreme Court level, but at the circuit, state and local level. They can’t wait a few months or even a year to read a law review article that tells them what they already know.

However, if an attorney reads legal blogs during the day, he can stay informed about contemporary legal developments that are directly relevant to his field of practice. He can read sophisticated but timely analysis of new cases and statutes that are important to him. This is true even if a blog post doesn’t yet count as “scholarship.”

(Scholarship for whom? Scholarship for what? If a blog doesn't count as “scholarship,” then perhaps we need to reconsider the definition of legal scholarship. I realize that law professors need to display their research, propose new ideas and reforms, describe long-term legal developments, etc. But law school is not primarily about training law professors, it's about training lawyers, and lawyers read blogs. Some lawyers even create their own, and benefit their entire profession. Perhaps that's not scholarship in an academic sense, but the value to practitioners may be greater.)