Law X.0

A Historical Blog Event

An event occurred on January 12, 2005, that I consider to be incredibly significant to the future of legal education, legal scholarship, and legal practice. But that event was hidden, existing as a minor citation within a landmark US Supreme Court decision. So I think that very few people caught it.

      

When the consolidated case of US v. Booker and US v. Fanfan, 543 US 220 (2005), was decided, the dramatic impact was felt within criminal law in general and sentencing law in particular. This case garnered a lot of attention, even from the news media, because it declared the Federal Sentencing Guidelines unconstitutional. Booker/Fanfan applied the earlier decision of Blakely v. Washington, 542 US 296 (2004), at the Federal level. And in an amazing twist, there were two opinions to Booker/Fanfan, with completely different majorities. The first opinion held that the Guidelines were unconstitutional because they violated the Sixth Amendment (applying Blakely). But the dissenters in that first opinion became the majority for the second opinion, and held that these same Guidelines were now “advisory.”

      

Justice Breyer, who helped draft the Guidelines in the 1980’s (before he was a Supreme Court justice) stunned everyone by rescuing them. Justice Ginsburg, of all people, became a swing vote and joined both majorities. And Justice Scalia’s revenge against Mistretta v. US, 488 US 361, proved short-lived. (Internal citation and explanation omitted.)

      

Booker/Fanfan was rightly heralded for its impact on criminal punishment and sentencing. But I believe that one day it will be remembered for something else.

      

The fourth footnote of a dissenting opinion by J. Stevens simply states the following:

“Memorandum from Christopher A. Wray, Assistant Attorney General, U. S. Department of Justice, Criminal Division, to All Federal Prosecutors, re: Guidance Regarding the Application of Blakely v Washington, to Pending Cases, p 8, available at http://sentencing. typepad.com/sentencing_law_and_policy/
files/ chris_wray_doj_memo.pdf (hereinafter Application of Blakely); see also Brief for National Association of Federal Defenders as Amicus Curiae 9-12.”

Booker, 543 U.S. at 278 (2005).

      

This doesn’t sound revolutionary. The footnote is just indicating where a particular document can be found. But this is a significant historical turning point. Whether he knew it or not, J. Stevens did an amazing and unprecedented thing.

      

This is the first time in American history that a US Supreme Court opinion cited to a blog. It didn’t cite directly to the actual writing of the blogger. It just cited to a document that could be found there. The Supreme Court cited a blog on January 12, 2005.

      

In the interest of full disclosure, I should clarify that I have served as a research assistant for this blogger, Prof. Doug Berman, who runs the Sentencing Law and Policy Blog. I described some of my work for him here.

       

This was an important moment in American legal history, when the US Supreme Court cited, not a law review article, but a blog. And it will not be the last time. There is a growing number of court cases across the country, at the state and federal level, that cite legal blogs as dependable scholarly resources. And the Supreme Court is not likely to resist that trend, having already entered into it. 

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.)

A "Blawg": Lower than a Student Note

This appellate judge obviously does not think highly of "blawgs":

"Throughout these lengthy proceedings, the [district] judge has offered nothing at all to justify his actions--not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg."

In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1195 (9th Cir. 2005) (emphasis added).

A Beethovian Analogy

The fourth movement of Beethoven’s Ninth Symphony begins with an apocalyptic outburst, and continues with dramatic statements by the cellos and basses (“the cellos” for short).

And then Beethoven does something very unusual. He softly quotes the theme from the first movement of the Ninth symphony. It’s just a brief, nostalgic glimpse. And the cellos react by strongly rejecting this orchestral restatement of the melody from the earlier movement.

Then the orchestra offers a phrase from the second movement of the same symphony, very briefly. And the cellos reject that as well.

And similarly with the third movement, which is quoted twice, again with only brief excerpts. And these references to the previous movement are angrily dismissed by the cellos.

And then, having rejected the reminiscences from the earlier movements, the cellos come up with something new. They create their own melody, and play the main theme of the fourth movement. This is the famous melody that everyone is familiar with as the "theme from Beethoven's Ninth Symphony," which will become a song with Goethe's words, "Allen menschen verden bruder," etc.

After this beautiful first expression of the melody by the cellos, the rest of the orchestra begins to follow. Three times in a row, the entire orchestra plays the famous melody. But each time there is a particular focus within the orchestra, first the woodwinds (subtly understated), then the strings (exquisitely beautiful), and then the brass (blazingly triumphant). Thus the entire orchestra has embraced the cello’s melody.

Suddenly there is an eruption of the opening apocalyptic outburst that began this movement of the symphony.

Then Beethoven proceeds to do something revolutionary. A male vocalist, and then an entire chorus, enters into an orchestral symphony and sings the main theme for the very first time in Western musical history.

Now what does all this have to do with blogging?

A listener can enjoy Beethoven's Ninth or any symphony without knowing what the composer is really doing. But the composer himself knows that the impact of his work depends on using a certain structure, a certain form. And maybe he stays within the form, or maybe he expands it, or even revolutionizes it. But there is the need for a structure on which to build his work. There is a structure to each movement, and there is a structure to the symphony as a whole.

If you liken one single blog post to a movement within a symphony, then a blog can do something unusual. It can quote itself, and then reject itself. A blog can cite to an earlier post (an earlier movement), and then decide to reject the earlier analysis or conclusions. And this need only take a brief moment of time.

Such quotations can come from other sources as well. Musical composers occasionally quote each other as a measure of respect. A blog can quote another blog, and then put that quote in a new context, and develop it further. An opinion can be restated, and then dismissed or expanded.

A blog can express a theme, and reiterate it, and develop it, and expound upon it. A blogger can state his "melody," and leave it out there for awhile, and then come back to it and give it new meaning, new substance, or a new form of expression.

There are many ways to play with this analogy, and it isn’t a perfect one. But at the present time, for better or worse, the blogosphere lacks structure. It lacks form. And eventually some forms within individual blogs, and within the blogosphere as a whole, will develop. Perhaps this will be in the realm of what Hayek termed “spontaneous order.”

We are not yet at the Beethovian (early Romantic) stage of structuring the blogosphere. We are not even at the stage of Haydn or Mozart (classical). When it comes to a system of organization, for individual blogs and for the blogosphere, we are still at a pre-classical stage of development. The blogosphere is still at the stage of early childhood. It has barely begun to be organized into a system that can be readily ascertained, whether on a micro or macro level. Eventually the online world of blogs will have clear and discernable forms. And many years from now people will challenge and expand these forms, rendering the earlier versions outdated and obsolete.

But it is possible that certain aspects of legal pedagogy will remain stuck in the Baroque era for a very long time.

Footnote 123

My Recent Development case note is in its final form, and is now available for downloading. The note is on Campbell v. General Dynamics Gov’t Sys. Corp, 407 F.3d 546 (1st Cir. 2005), which concerns whether a hyperlink on a mass email sent by a company to its employees provided sufficient notice of a mandatory arbitration agreement. The print version of the case note includes a footnote numbered "123," which points readers to this electronic "Footnote 123" on 3L Epiphany. This case note will be published in an upcoming edition of the Ohio State Journal on Dispute Resolution.

Download Recent Development on Campbell   

Sleep, and New Advice

I received a visit from an OSU law student last night at 3:27 am. I'm assuming it's an OSU student because of the domain name and the referral. The student came here via the Moritz Registrar’s blog.

3:27 am? Friend, get some sleep. Study hard, yes, but don't kill yourself. Of course, you may have had an assignment due today, or any number of things. I've certainly been there. Just don't do that too often, or for too many days in a row, unless you have some way to rejuvenate.

Maybe you were just watching late-night TV, and decided to check the Registrar's blog. That's a good habit.

This reminds me of one important piece of advice that 1L Blues failed to mention. It's actually more important than all the other advice: Be friendly to the Registrar's office! Not only do the two “wonder-women” deserve it for all their hard work, but treating them with kindness will pay dividends later on, because they know all...

And they see all...

Advice on Writing a "Recent Development"

I used Prof. Eugene Volokh’s book, Academic Legal Writing, and found it extremely helpful for when I was writing my student note for Journal, and other assignments as well. The original note that I submitted, for which I received journal credit, will not be published. But I was asked to write another note, this one on a particular case. Such a note is called a “Recent Development,” or “Case Note.” My case was Campbell v. General Dynamics Gov’t Sys. Corp, 407 F.3d 546 (1st Cir. 2005).

In the 2005 version of Academic Legal Writing, Prof. Volokh says the following: “An article that describes a single case and then critiques it is likely to be fairly obvious, even if it’s novel and useful; and it generally doesn’t show off your skills at research and at tying together threads from different contexts” (p. 29) This is true.

Prof. Volokh describes in greater detail the difficulties involved in writing a case note on pages 31-32. He also suggests several ways that a law student can turn such a narrow assignment into something worthwhile. Any law student who is writing a “Recent Development” or “Case Note” should read this section.

Several of Prof. Volokh's suggestions are related to criticizing the opinion. These include “internal criticisms of the majority opinion” (such as that it “misinterprets or misapplies precedents,” “misinterprets the statutory or constitutional text,” etc.); “argu[ing] that the majority reached the right result, but for the wrong reason”; “[c]riticisms that  point to the bad results that the majority opinion may lead to”; “[c]riticisms of the vagueness or uncertainty of the majority’s rule”; and “[c]riticisms of the concurring and dissenting opinions” (p. 32).

Unfortunately, in my case I found very little to criticize in the opinion, and the only concurrence was to express appreciation for how a certain precedent was applied. I think most readers of Campbell would agree with the court that a mass email sent out by a company to its employees, with a hyperlink that leads to an inconspicuous arbitration agreement, does not provide sufficient notice. (It’s more complicated than that, but my point right now is not an explanation of the case.)

When I wrote my Recent Development on Campbell, I specifically cited to several other Case Notes written by other law students. I am going to try to contact each one of these students, whether they are still in law school or have moved on. And I am going to ask them for their own advice based on writing a Case Note. How did they try to make their case note interesting? What were the limitations and benefits of writing on only one case? Do they believe it was a worthwhile experience?  What advice would they give to law students who are about to write one? I will collect that advice, and post it here.

If there are other students (or former students) out there who have written such a Case Note or Recent Development, please let me know your own answers to these questions, and whatever else you want to add. You can leave a comment to this post.

Of course, as is often the situation with law reviews, once a Recent Development is published it is no longer a recent development. This is one reason why some people think that blogs are more useful to practitioners than law reviews.

So I have come up with an idea to make my Recent Development more interesting, and also to make certain that it is always kept “recent.” I discuss my idea for an Electronic Footnote below (or here). 

Electronic Footnote

Footnote 123 is actually an electronic footnote. My “Recent Development” article for the Ohio State Journal on Dispute Resolution (JDR) contains one final footnote, numbered “123,” which points readers to its online extension here on this blog.   

    

Previously, Footnote 123 contained this explanation: “[Y]ou are now reading the footnote of an article that does not yet exist in published form. The article still needs to go through a final editing process. My own editing is over, and I can therefore give this electronic footnote a number, ‘123,’ based on its number in the print version.”

    

This explanation is now outdated, because my Recent Development is now finished and has been posted online at Footnote 123. The text for the print version of Footnote 123, which appears in the article, states the following:

    

“Footnote 123 is available online, and applies to the entire Recent Development. The author created an electronic version of Footnote 123 for the sake of keeping this article continuously updated. The author intends Footnote 123 to be a perpetual resource for displaying further research on Campbell, its impact, and its progeny.  If the URL should become inactive, this footnote’s contents will be in the possession of the author and will be made available through another online source. The current URL of Footnote 123 is: http://3lepiphany.typepad.com/
3l_epiphany/2006/02/campbell_fn_123.html.”

    

I will use Footnote 123 to do future research on the case of Campbell v. General Dynamics Gov’t Sys. Corp, 407 F.3d 546 (1st Cir. 2005), which is the subject of my article. I am taking the opportunity to use my Recent Development article on Campbell, and my Independent Study blog 3L Epiphany, to demonstrate how online media can transcend the time and space limitations of traditional publishing forms.

    

Footnote 123 enables me to perpetually update my article with the results of new research. I can report on further developments in the Campbell case, track any progeny within the First Circuit, and describe how other circuits are handling similar issues. If time allows, I will contact the attorneys involved in the Campbell case at both the trial and appellate levels. Should they be willing to share briefs and motions from the case, or describe their own opinions about Campbell's significance, I will post this information at Footnote 123. 

    

If other law review articles are written that cite to Campbell, or that even cite my own Recent Development (including Footnote 123), I will list them there. I may also collect news or business articles that describe the impact of the Campbell decision on the non-legal world.

      

My electronic version of Footnote 123 is therefore an unlimited resource, where I can update my article on Campbell for as long as I would like. And one aspect of this footnote I consider to be especially significant: Before my Recent Development was published and printed in JDR, I already posted it online at Footnote 123. The article existed in its final form online before it existed as a hard copy. Thus a footnote contained within the article has become the location of that article. This is one example of what I meant when I first referred to a Mobius strip, and when I made a paradoxical movie analogy.

    

I am especially thankful that the article is on the Campbell case, which concerns the use of new technology such as hyperlinks and mass emails. My one concern is that the URL of Footnote 123 may change for some reason in the future. Even if I keep 3L Epiphany online for years, unforeseen things could happen that will change the footnote's address. Should the URL fail, I will work out the details as to where the final version of Footnote 123 will be stored.

    

I predict that this method of blending old and new forms of legal publishing will become more common in the future. Students who wish to keep their law journal article perpetually updated can always link the last print footnote to an electonic footnote on their blog. This unusual feature may also rescue a student article from typical and near-certain obscurity.

Of Blogs, Bears, and Disgruntled Clients

Here is a succinct but excellent post describing why people like to blog, and why they like to read blogs, from Prof. Volokh at the Volokh Conspiracy. This post is almost a year old, but still contains worthwhile observations. Here are the topics covered:

1.   Tips for thinking about blogs.

2.   Why readers like to read blogs (sometimes more than they like to read a newspaper).

3.   Barriers to readers’ reading blogs.

4.   Why bloggers like to blog.

5.   Why people may not want to blog.

On the subject of why people read blogs, I’m about to provide four examples of why I do. They come from the same blog: Alaskablawg. Now obviously I am not likely to pick up a law review or journal focused solely on Alaska law, for any reason. And believe it or not, there is an “Alaska Law Review” at Duke University in North Carolina, here. (I wonder, sincerely, how many students at Duke compete to get on it.)

But it takes only about a few minutes to read these four blog entries, and they are worth the time. I consider these posts from an Alaska PD to be moving and insightful. They provide a brief vicarious experience of the real world of legal practice that is not always easy to come by in an academic environment.

Actually, the one on “Bears” doesn’t really fit that description, but where else will you read something like it? Not in a law review.

1.   Things I Wish My Clients Knew

 

2.   Trial (Cont.)

 

3.   Verdict (Guilty)

4.   Bears

"1L Blues": Advice and Encouragement for 1L's

I am posting some advice from three OSU professors for 1L’s who recently received their grades. It’s called “1L Blues.” This advice should be regarded as student notes from an informal lecture, rather than a document created by the professors. I have received permission from the professors to post this, but it is not formal or official advice. These are student notes of informal advice spoken to a group of 1L’s at an optional lunch time gathering.

I would like to thank Professors Berman, Cohen, and Greenbaum for allowing me to do this. I would also like to thank 1L’s Pamela Bridgeport for taking these notes, and Larry Lanham for arranging this at the last minute. 

Here is a brief introduction to “1L Blues,” after which the entire document is available for downloading.

Introduction

This is an annual event at Moritz after 1L grades come out, which was started by Prof. Doug Whaley about 25 years ago. 

The goal of this time is to:

1.   Put your grades in perspective.

2.   Consider how to improve exam performance.

3.   Recognize there are other keys to success if grades aren’t your “golden ticket.” 

4.    Talk a bit about how to maintain a balance between life and work in law school.

Download 1L Blues 

Update: If any 1L's at other schools know of other online resources similar to this one, especially from your own schools, please let me know and I will link to them here.