Tuesday, September 26, 2006

Case Blogging

Joel Jacobsen at Judging Crimes has already beaten us to the notice of this interesting experiment at 3L Epiphany (and with great accompanying commentary), but it's something we wanted to bring to your attention as well. Regular readers know that we stress the importance of building the commentary function within the corrections and sentencing communities, and this sounds like an intriguing experiment not just in legal ed but also in developing effective ongoing discussion about individual cases. You might want to check it out and, even better, participate. (If you end up getting solicited to help an African prince regain his fortune, this never happened.) Seriously, the potential of the blogosphere for all kinds of exercises like this needs to be put into high gear, and we wish them luck in getting the case blogs going. Here's Ian Best's description.

Where is the Hudson v. Michigan Blog? - A Suggestion for Law Students
On June 15, 2006, the Supreme Court decided the case of Hudson v. Michigan. The Hudson Court held that a violation of the knock-and-announce rule by the police did not require excluding the seized evidence. This was a tremendously significant decision, and a simple Lexis search indicates that there have been 39 cases citing Hudson in state and federal courts. But three months later (on September 21st), not a single law review article about Hudson has been written and published. The reason is obvious: there has simply not been enough time.

No doubt at this very moment some lawyers and law professors are writing law review articles about Hudson and the knock-and-announce rule. All of these articles will be submitted to law reviews for publication. If they are approved, they will be edited and “acc-checked,” sent back to the author with corrections, resubmitted to the law review, edited and “acc-checked” a few more times, and finally published. How long after the actual case will they appear in print? At least a few months, and perhaps more than a year.

Meanwhile, there are prosecutors who are trying knock-and-announce cases, and there are defense attorneys who wonder how Hudson applies to their clients, and there are judges with their clerks who are wondering how Hudson is playing out in the various states and circuits. What questions are left unanswered by Hudson? What consequences should be expected? What progeny might be on the horizon? An attorney who relies on the traditional forms of legal publication will have to wait for a year to learn what the experts think. And when the law review articles finally begin to come out months from now, how many of them will have practical value? Some no doubt will be helpful to legal practitioners, but many of the articles will be esoteric and arcane, and some will already be outdated.

But suppose there were a blog devoted exclusively to the case of Hudson v. Michigan (the “HvM Blog”). This blog would become the online authority about the case and its ramifications. Every time a lower court relies on or distinguishes Hudson, the HvM Blog could name and analyze the new decision (and link to it if it’s online). Lawyers and law professors could analyze Hudson and its consequences, and submit their research to the blog. If some form of review were desired, submitted scholarship could potentially be approved, edited, and published within a week after being received. And as state legislatures pass statutes to clarify their laws in the wake of Hudson, the HvM Blog could follow the legislative developments. The blog could link to the online conversations already taking place about Hudson.
If done well, an HvM Blog would provide immediate benefits to the entire legal profession. Prosecutors and defense attorneys across the country would rely on it as a resource, and judges might even cite the blog in a court opinion.

Blogs are successfully challenging the monopoly that law reviews and law journals once held over the dissemination of legal scholarship. There are hundreds of law reviews and law journals, including the “main” and specialty ones. How many of the articles contained within are actually read? How many of them have an impact on the profession? How valuable are they to practitioners? How much time does a typical judge or lawyer take to read law review articles when they come out? And how many of these law reviews and law journals could be completely discontinued, with the negative consequences being minimal or non-existent? Every year, law students across the country endeavor to write-on to one of their school’s law journals. Those who are unsuccessful should consider creating a blog as an alternative. Those who do get on law journal should consider creating a blog on the side if time allows.

If (as this
law professor complains) “the vast majority of law review articles are read by few people, and cited by even fewer,” and if (as this attorney says) “[b]logs are better for me than [law reviews] will ever be,” and if (as this judge predicts) “legal blogs will partially fill the ‘practicality’ gap between the legal academy and the rest of us,” then now is the time for law students to become pioneers in the legal blogosphere. Law students who create sophisticated and authoritative blogs will be laying the foundation for legal scholarship in the 21st century. Eventually future law students may consider starting a blog to be as valid as joining a law journal.

I used Hudson v. Michigan as an example, but any important
case could merit a blog. The same holds for any significant statute or regulation, or for any major trial. Many legal specialties do not yet have a blog devoted to them (adoption law, for example). By creating a blog, a law student can take online ownership of whatever topic he chooses. He can turn his blog into a continuously updated resource that actual lawyers and judges pay attention to. He can invite lawyers and law professors to post their scholarship on his site, whether short-form or long-form, with a variety of styles ranging from the colloquial to the formal. He can also conduct his own research and publish his own work. Such a student may end up becoming a nationally-recognized authority on his chosen topic.

If law students are inspired by these ideas and create their own legal blogs, they should attempt to get Independent Study credit. This would require finding a faculty sponsor and getting approval from the administration. If it is too late for such a project to be approved this semester then it can be planned for next semester, by which time published articles on Hudson v. Michigan (for example) will still be lacking. Law students who want to make their blogs more official might join together and form a group blog. If any law students follow through with these ideas and start an HvM Blog or its equivalent, please let me know and I will try to send traffic your direction. Good luck.

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