The Pocket Part, A Companion to the Yale Law Journal, features an essay by Jack Balkin entitled, "Online Legal Scholarship: The Medium and the Message". Balkin is the founding member of the blog Balkinization, which primarily specializes in legal issues concerning executive power, torture, and the war on terror. The essay opens with an anecdote detailing how the writers of Balkinization illuminated the mass media's dim perception of the legislation designed to bring an end to the NSA wiretapping controversy, and handed journalists and legislators arguments and insights that breached the proposed bill's deceitful facade. Balkin uses this story to exemplify the numerous advantages blogging presents to the world of legal scholarship. Although he mentions "teaching" a few times in his essay, he fails to elucidate how the law student benefits from the discourse that is created when legal scholars (i.e. law professors), practicing and non-practicing attorneys, journalists, analysts, and politicians take part in a virtual dialogue about contemporary issues.
Online media permits legal scholars to "route" around the traditional gatekeepers of legal scholarship, viz. law journals. Routing around the traditional gatekeepers has a number of advantages for the legal scholar. A scholar does not have to wait months for his or her article to be published in a law journal when it can be published instantly on the internet. By publishing it on the internet, the scholar is the editor, a power that no longer has to be relinquished to someone else. Plus, the online community provides the scholar with commentary and feedback, creating a sense of instant gratification and obligation to his or her audience. Citations have been replaced by hyperlinks, manifesting a cultural ethos of "see for yourself".
Moreover, the blogosphere's rapid fire discourse about current legal issues between practitioners and non-practioners compels legal scholars to "form quick reactions and publish them to attract readers". The ideas that are produced during this vivacious discourse may culminate into law review articles, and law review articles that are submitted to the blogosphere can be further refined prior to their submission for consideration at a journal. In this way, "routing around shapes the subject matter and the message of legal scholarship" and compels the scholar to write on issues that are more timely and of greater interest to a possibly larger audience.
A significant number of these gatekeepers in the legal community that have been "routed around" are law students working tirelessly on a law journal. However, as Balkin points out, the blogosphere and Social Science Research Network (SSRN) will not displace the old gatekeepers but it will generate new ones "that partially supplement and partially compete with them." The gatekeeper in the form of a law student will not be left behind in a cluttered, windowless room reading articles by law professors and cite checking. Quite the contrary, law students are an active part of the blogosphere and reap just as much benefit from the forum as anyone else and their commentary creates a larger butterfly effect than it ever did before.
The blogosphere presents law students with an opportunity to directly engage legal scholars about issues confronting them in their studies and everyday lives. It allows students to interact with not only the professors at their school but also professors at other law schools. That is, the blogosphere allows students to interact with a larger array of experts, including professors that most of them would have never had the chance to engage simply because they were precluded by their LSAT score, GPA, or they did not make it onto a journal. Most importantly, the oppotunity presented by the blogosphere to interact with and learn from professors creates a dynamic environment that will undoubtedly compliment and possibly subvert the Socratic method.
Balkin said in his essay that links, page views, and downloads of SSRN articles will "gradually be layered on top of existing methods of assessing quality and generating scholarly reputations; and they will, over time, merge with and influence them. Someday hiring committees may pay less attention to journal placements and more attention to page views." If this is true, who will be a large portion of the multitude viewing pages and downloading SSRN articles? Does it even need to be said? What better way will there be to assess a professor's accessibility and effectiveness as a teacher than by measuring his or her page views and the opinions expressed on the blogosphere of his or her work by law students?
In response to Balkin's essay, David Luban at Balkinization said that if Balkin is correct about the routing effect of cyberspace, then the role of the law journal gatekeeper will shrink dramatically and "the result may be a downward spiral in quality, importance, and attractiveness of the law reviews, both to authors and to editors." Luban further states that the decline of ambitious law students attracted to the prospect of working on a journal and the reluctance of respected scholars to submit articles that are "disconnected from the flow of real-time political and legal events" caused by the pull of cyberspace is good news to some people in the legal academy.
These are the people who have always bridled at the idea that law students rather than peer reviewers should decide what counts as meritorious scholarship. I have never taken this problem seriously. Comparing the quality of articles in the top student-edited law reviews with the quality of articles in the top peer-reviewed philosophy journals (my own scholarly point of reference), I have never been able to detect superiority in the peer-reviewed philosophy journals. By and large, I think that law review editors – at least at the top law reviews, where the editors have an embarrassment of riches to choose from – have been pretty good gatekeepers.
Ethan Leib at Prawfsblawg wrote a riposte about the above quoted passage calling it an "astonishing claim". Leib expressed that peer review produces scholarship that is more "important and ground-breaking" than anything found in the best law reviews. "Few tend to think it is a good thing that second-year students are the gate-keepers to our most important research vehicles -- and I doubt very many think it makes no difference to what gets published in the 'top' journals."
However, I think there is a subtle point here that is being missed by Leib and Luban, which is that law school is intent upon training lawyers. The quid pro quo of being published in a law review is that law students get to work with the latest manifestation of a great legal scholar and the scholar gets published in a reputable law review. The process known as "journal" is a means for the next generation of legal scholars to hopefully acquire some of the skills they will use in their own scholarship. Yet, as Balkin has pointed out, cyberspace threatens to change all of it.
The blogosphere is an environment where anyone with the initiative can learn from today's most respected whatever and have an opportunity to share their own whatever with whomever cares to stop by. Perhaps Thoreau summarized it best in Walden when he said, "I had three chairs in my house; one for solitude, two for friendship, three for society. When visitors came in larger and unexpected numbers there was but the third chair for them all, but they generally economized the room by standing up. It is surprising how many great men and women a small house will contain."