Saturday, July 25, 2009

The Future of Today's Legal Scholarship

The Future of Today’s Legal Scholarship, a symposium at Georgetown Law in honor of Robert L. Oakley

Opening Remarks: Bob Berring, Berkeley Law

Students speak a different information language. They are no longer speaking the language of books, indexes, double lookups—an entire structure of authority/trust is no longer part of their world. They don’t look at authority in the same way—they use what is available to them. (As we did in the world of books and indexes.)

“I shepardized it” used to be a way to invoke authority and security: if you did that, you were secure, you’d done what you were supposed to do, even if you missed something. Certain periodicals represented intellectual power. Enormous thought given to library classification (the difference between Scientific American and Mad Magazine), to what books were in the reference room: what books were easiest to use. The most valuable books were there, but also tightly controlled so that they couldn’t be monopolized by particular users.

That authority system is gone. Encyclopedia Britannica doesn’t have the same power, much less success. Some of those sources are disappearing—no published catalogs of baseball statistics, for example. Instead, we get unfiltered information--Wikipedia isn’t completely unfiltered—banned Scientology edits on Scientology, for example—but it’s user-produced. Even if you take it with a grain of salt, it’s undeniable that Wikipedia is a great place to start.

Recommended: David Post’s In Search of Jefferson’s Moose: the most important question about an information source is not “is it accurate” but “does it work?” (Aside: Rachel Maines has the best anecdote ever about this question, highlighting an important truth about technology and culture that is actually relevant to Berring’s talk. See below.) Still, we haven’t replaced the old standards: the university press, peer review, the editorial process, names you can rely on without thinking—those names exist, but they aren’t settled. (Query: Did everybody rely on Walter Cronkite thirty years ago? Or did we actually consider the opinions of everybody, or only everybody who counted? I don’t have of an answer for that, but—and I don’t think Berring is doing this—I distrust invocations of an idealized information past of quality and trustworthiness. That’s also the past where James Tiptree was well advised to use a man’s name to publish, and so on.)

Treatise writers used to promise to read every case and condense them, holding it all in their own minds. This used to be possible, but is not any more—the end of the treatise tradition. But we still need someplace to go. The shift went to academic law reviews. (In IP, treatises are still pretty powerful. It’s at least possible for a small group of people or maybe even one person to monitor most of the decided cases, and decide whether or not to include them.)

So, when will someone get tenure for legal blogging? The top universities haven’t been able to look beyond academic law reviews. Yet judges aren’t reading law reviews; with Lexis and Westlaw you can tear articles apart looking for their footnotes, which is often what you’re more interested in anyway. What will replace it? Auxiliary blogs like the Yale Pocket Part? Institutional problem: law review staff turns over too fast.

Blogs form a new kind of discussion. Samuel Johnson published his own newspaper every couple of weeks, every word his own—I.F. Stone did the same thing. Information ripple effect: small number of readers, but the right readers, who pass it on if it’s of larger interest. This used to be true of a select number of authority sources, like The New England Journal of Medicine, which could filter into the NYT, which could filter into the TV news, which could become general knowledge. Now SCOTUSblog can do the same thing.

Blogs are good for hot documents, but will those documents remain available? Library orientation towards preservation creates a conflict: blogs have authority without the archival function (both physical and the cognitive effort of holding things together in the mind) that used to go along with authority when authority was collected in physical objects.

There are access issues in the new world as well. Oceans of information can be exclusionary: who can understand a thousand-page health care bill? Nobody reads the budget.

Libraries remain the place where information can be preserved. Blogs are immediate, replicating the feeling of being in a room with Samuel Johnson, talking to the most brilliant people. But blogs are going to be outrun in the end, too.

Here’s the Rachel Maines anecdote:

The curator and I were down in collection storage examining the vibrator collection …. The curator … was taking the opportunity … to expand and update the information on his catalog cards. Since I had museum training, I was permitted to write (in pencil, of course) on the cards the new information, such as weight, measurements, number of vibratodes (attachments), and so on. We came to … an early twentieth-century medical vibrator with a selection of about half a dozen vibratodes. I asked the curator if the device was still operational. Looking into the box, Al unerringly selected the most appropriate of the attachments, plugged the cord into a wall outlet, and flipped the switch. No response. Unplugging the device, he pulled a small screwdriver from his pocket, made several mysterious adjustments, and again plugged in the instrument, which then buzzed vigorously when turned on…. Thanking Al, who began putting away the artifact, I wrote “runs” in the “remarks” suggestion of the catalog card…. About half an hour later the museum’s director came down and asked how we were getting along. I told him we had just plugged in one of the vibrators and tried it out. “And did it work?” he asked. “We don’t know if it works,” Al replied solemnly. “We only know that it runs.”

(I highly recommend the book, The Technology of Orgasm—see Zach Schrag’s layperson’s reading list in American history, which points out that “Americans are people who believe that if something is worth doing, it’s worth doing with power tools.” Which also draws a connective line between Johnson’s newspaper and Tom Goldstein’s blog, now that I think about it.)

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