Madison on the future of legal scholarship
... So: Can we talk? Have a real conversation about the future of legal scholarship? I don’t know. But there have to be some ground rules that don’t put the law review genie in the bottle.
First, we’d have to agree to stop debating whether something is “scholarship” or not, and instead start talking about where and when and how different types of writing and speaking and presenting engage each other.
Student-edited law reviews aren’t going away. But neither are blogs. Or wikis. Or novels. Or comic books. What do we do with the amicus briefs filed by academics? Don’t forget monographs, book chapters, casebooks, legislative testimony, and a lot of other stuff that is increasingly showing up online. Each of these can carry on in its own little bubble, or the profession can try to figure out ways to connect their content. Blogs speak to journal articles speak to wikis speak to comic books speak to law reform projects speak to del.icio.us. Or something like that. I have no idea what the end result of this process might actually look like.
Second, not only would we have to bear in mind obvious interdisciplinary issues, but also the fact that there are legal academics in other countries who are interested in this discussion. And how about the practicing bar? Remember our former students? There’s a real opportunity for the Future of Legal Scholarship to break down the insularity of the American legal academy.
Third, no one would have to forget the fact that the cynical game here is all about prestige and reputation and role and hierarchy. Some of what I’ve written, here and elsewhere, may come across as early-Internet-idealism, but I’m as cynical as the next guy; I know about tenure and promotion committees. But substitute “rigor” for “scholarship” in the “is blogging scholarship?” debate, and eventually reputation takes care of itself. The fact of the conversation, in other words, would have to be separated from the rigor of the work. ...
I'm not sure the exact same issues work the same ways on my side of campus. One major distinction between those of in the humanities and social studies (my preferred term) and my colleagues in the law school is that we must publish in peer-reviewed journals. The peer review is usually poor and useless. But it is part of the process. It's part of our pretentions toward rigor. Law reviews tend not to be peer-reviewed.
So the status quo for my folks is peer review. The insurgent forms of scholarly communication (which may or may not be scholarship) is rarely peer-reviewed in the traditional manner. But most of the insurgent forms of legal scholarship we see flowering are ways to make legal scholarship MORE rigorous and MORE peer-reviewed: blogs, wikis, draft circulation via conferences and SSRN, etc.
To the future of legal scholarship seems to be very different from the stuff over here. At least that's one thought. I could be wrong.
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