Posted by Orin Kerr:
Will Blogs Kill the Law Review Case Comment?
Mulling over my [1]blog post below about a recent court decision, it
occurs to me that one way blogs will change the content of law reviews
is rendering case comments superfluous. A case comment is a brief
student-written article, usually around 10 pages long, explaining and
offering commentary on a recent court decision. Case comments
traditionally have served three functions: 1) Alerting readers to a
recent decision, 2) Offering a scholarly assessment of the decision
soon after the decision is out, hopefully before academics and appeals
courts have had time to digest it, and 3) Helping editors improve
their writing skills and generating a writing sample for future job
applications. The question is, will blogs drive case comments out of
business?
My sense is that blogs have eclipsed the first two functions of case
comments. [2]How Appealing alerts readers to new court decisions,
often on the same day they are published (at least when Howard doesn't
have [3]the nerve to go on vacation). Within a matters of days, the
blogosphere usually generates a discussion among practitioners, law
professors, students, and interested laypersons in the merits of
notable decisions. In general, the quality of legal analysis generated
by the blawgs is notably higher than that of case comments;
practitioners and law professors have more expertise and experience
than 2Ls, and the back-and-forth debate online generally tightens
loose thinking pretty quickly. In contrast, student case comments are
usually short on perspective and long on political agendas; the
majority seem to fall into the "I'm liberal and want to bash the
Rehnquist Court" mold, or the "I'm conservative and this Reinhardt
decision is nuts" mold.
By the time case comments come out, usually about a year after the
decision, it is too little, too late. Litigants, judicial clerks, and
anyone else involved in the case can read the output of the blawgs
online and take away whatever lessons they wish from the commentary;
few are going to go hunting through westlaw for student comments a
year or two later. For example, if Eugene blogs about a First
Amendment decision the day it comes out, offering his assessment of
the case and pointing out its strengths and weaknesses, will anyone
care if a year later the Brown Journal of Law and Identity publishes a
case comment by a 2L editor explaining that he liked or didn't like
the decision? In a pre-blawg world, such a case comment might be the
very first piece of analysis on the case; it could be important
because there is nothing else on the opinion. The role of first
responder is now played by the blogosphere.
Perhaps the third function of case comments is enough to keep case
comments alive, at least for a decade or two. But my prediction is
that journals will eventually stop publishing case comments and
instead focus more on scholarship surveys (where student reviews could
be very helpful) and broader note topics.
Thoughts? Reactions? I have enabled comments.
References
1. http://volokh.com/archives/archive_2005_02_20-2005_02_26.shtml#1109003220
2. http://legalaffairs.org/howappealing/
3.
http://www.legalaffairs.org/howappealing/2005_02_01_appellateblog_archive.html#110887548822575602
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