Managing Discussions in Law Blogs: from Post to Comments

The role of blogging in legal academia has been much debated. Some view the discipline as the antithesis of scholarship, a medium that allows faculty to broadcast ignorant or confused opinions. Others have viewed blogging by law faculty more favorably, focusing on the approach as a means of promoting traditional scholarship. While the debate has been ongoing, the matter has largely been resolved by actual practice. In the realm of legal scholarship, faculty law blogs are a disruptive innovation. Disruptive innovation usually connotes the introduction of a new technology that eventually destabilizes an existing market. Often, the technology, when introduced, is inferior and not perceived as a threat. Over time, however, the technology improves and migrates from a market niche and becomes the reigning standard. Law faculty blogs arose in a state of nature and were often perceived as inferior technology used by faculty to convey random, often personal, views. Over time, however, a recognized class of law faculty blogs emerged, with at least one having been cited 45 times in court opinions and another having been cited by over 700 times in assorted legal publications. Widely read and regularly cited, they offered a superior method for the rapid dissemination of some types of legal analysis and facilitate the introduction of ideas into an ongoing debate. They also provide a form of intermediation that discourages low quality posts. Law faculty blogs provide a form of scholarship that fills a gap left by traditional law reviews. Law faculty blogs overcome the slow publication process and dense analysis that often prevents traditional law review articles from playing a role in an ongoing debate. Said another way, law faculty blogs have altered the continuum of legal scholarship and reduced the role of traditional law reviews. Efforts by law reviews to fight back through the implementation of online supplements has so far failed. Law faculty blogs have also had a disruptive impact on the determination of faculty reputation. Blogging allows law professors to route around the traditional indicia of reputation such as the frequency of publication in elite law journals. Providing a “prominence” dividend, faculty who blog are able to advertise their expertise through substantive posts and become better known to practitioners, academics and decision makers. This type of reputational benefit can be seen from the correlation between sustained blogging and SSRN downloads. Blogging can also disrupt law school rankings. With reputation the single largest component in the rankings, law blogging can be used by some law schools to increase name recognition in a cost effective manner. In other cases, blogging can increase awareness of a law school’s faculty, elevating the overall reputation of the institution. Both can improve a law school’s relative rank.

Any survey of literature on legal education will soon reveal depth of divide which separates legal academics and legal practitioners. This division has been described as the most significant division within profession and surpassing division between barristers and This perception can be based also on my experiences in both worlds as a solicitor for ten years and more recently as an academic. My former occupation will be reflected somewhat in this article as my view of practitioners will focus especially on views and experiences of solicitors but not to exclusion of barristers. This discussion does not assume that both sides of this divide are homogenous seamless monoliths. Amongst law schools you will witness considerable variety in orientation, from law schools that have an outlook which is substantially theoretical, to law schools whose outlook emphasise practical concerns and professional issues. Diversity exists in regard to many matters but includes diversity in teaching methods, status, student profiles and class sizes. Legal academics themselves have been categorised as falling into a number of types demonstrating a diversity in approach including categories such as traditional legal scholar, practitioner scholar and activist. Within body of legal practitioners there is also considerable diversity in approach and orientation between large, medium, small and boutique firms, city and country firms, barristers and solicitors. It would seem that tension between both sides of divide may differ depending on which category is being considered but generally, despite this diversity, a divide does exist and my intention in this article is to identify major factors contributing to this gulf. My discussion will traverse four spheres of influence: Historical, Sociological, Psychological and Experimental. On occasions some of those categories will overlap as is nature of human endeavour. This article will also include a discussion of means by which divide can be overcome so as to create an atmosphere where profession and academics can relate in a manner that encourages a cross pollination of ideas and knowledge to benefit of all 'lawyers.

The theme of this conference — legal academia — raises for discussion and analysis basic questions about the current state and status of the legal academy. It implies historical questions: how have we arrived at the position we are in today? It implies predictive questions: how are we likely to develop in the years ahead? How should we be developing? It also implies comparative questions: is what we do here similar/dissimilar to what goes on in other common law countries? In the civil war jurisdictions? In the (former?) Eastern Bloc countries? A complete and comprehensive analysis of all these issues would require a substantial research agenda. Despite the potentially vast scope of the enterprise sketched out above, this paper addresses a narrower set of issues that revolve around the questions: what should the status of the legal academic be? What should the relationship be between the legal academic and the legal practitioner?l In what follows there will inevitably be a rather narrow focus on the position in England.2 Nevertheless, the conference agenda does suggest that some consideration of the matters discussed here form at least part of the agenda in Australia and New Zealand as well. It must also be acknowledged that much of the inspiration for developments occurring in England derive from experience and expertise developed in Australia and New Zealand. The Paper falls into two main parts: Part One looks at developments at Higher Education policy in Britain and the responses of law schools to them; Part Two explores the changing relationship between legal academics and legal practitioners in England. Finally some conclusions are drawn.

The usual practice of The Journal of Legal Medicine is to not go out of our way to review a book we do not think would be of interest to our readers. There are more good books published than any of us can read and we see no benefit of wasting our readers’ time with those we cannot endorse. However, Failing Law Schools, by Brian Tamanaha, the William Gardiner Hammond Professor of Law at Washington University School of Law, is not just a book. It is a book which represents what has become a movement to blame the legal education system for the loss of legal jobs due to the crash of the United States. It also is a book which has become closely associated with an on-going series of articles in the popular press, most notably the New York Times, alleging that legal academics have acted in bad faith to preserve a broken system which rewards us at the expense of our students. It also is a book which cannot be ignored.Law professors, lawyers and journalists across the country have reviewed the book and fall into two camps: those who find Tamanaha’s expose “courageous,” and those who vigorously object to his claims of intentional fraud. Moreover, reaction to the book has created what can only be described as a classic double bind. Those law professors who reject his premises have been called blinded by self-interest and therefore unreliable critics. One law professor reviewing the book describes Tamanaha as “a prosecutor arraying the evidence to prove intent [who] offers up a very compelling narrative that the dispassionate observer is likely to find convincing,” and warns that those professors who do not essentially confess their complicity will “by history at least” end up “look[ing] foolish.” Maybe so. But as a relative late-comer to legal academe who first spent 10 years practicing law in both the public and private sector, I think it is important to disentangle the criticism that legal academe does not adequately prepare students to practice law, from the accusation that this failure bears any relationship whatsoever to our graduates’ ability to find legal employment that pays enough to cover their educational debts. Because one thing has nothing to do with the other.In reading and reviewing Failing Law Schools, I do not seek to criticize Professor Tamanaha’s skill as a writer or researcher, nor to suggest that he has no basis for the conclusions he has drawn here. But in the face of what no one can deny is a very different market for legal employment, I do want to challenge his conclusion that the solution going forward is to dismantle legal education in its current form and replace it with a form of structured apprenticeship, in which students are taught what they need to know by part-time instructors who, as practicing attorneys, can better prepare them for the career that lies ahead of them.

In this short paper, I shall argue that legal philosophers ought to focus more than they have done so far on problems of legal reasoning. Not only is this a field with many philosophically interesting questions to consider, but it is also, in my estimation, the field in which legal philosophers can contribute the most to both the practice and the study of law. The practice of law is, after all, an argumentative practice. Lawyers and judges aim to provide solutions to concrete legal problems but rarely try to say anything of general application. And although legal scholars take a more general view of things and typically discuss types of legal problems, they, too, tend to prefer a rather piecemeal approach to legal problem-solving, and usually abstain from defending general theories or otherwise speaking in general terms. But even though reasoning and interpretation are at the center of what legal practitioners and legal scholars do, and even though there are many highly talented persons in the above-mentioned groups, neither legal practitioners nor legal scholars reason with the same care and precision as philosophers do. Perhaps the most important difference is that whereas legal practitioners and legal scholars typically approach reasoning and interpretation in an intuitive way, emphasizing rules of thumb, common sense, and the value of workable legal solutions to problematic cases, philosophers, although they may also reason intuitively and emphasize common sense, often take care to make the logical structure of the relevant argument explicit by formulating as precisely as possible both the conclusion and the premises, and by subjecting the argument thus formulated to close logical as well as substantive scrutiny, where such scrutiny typically involves paying close attention to the content, structure, and function of any relevant concepts. Against this background, I consider the following three types of questions regarding legal reasoning especially worthy of serious consideration. The first question is that of the relevance of the theory of reasons holism to legal reasoning in general. The second is the question of how to analyze (first-order) legal statements in a way that does not undermine the rationality of legal reasoning. And the third is the question of whether legal arguments or inferences are to be understood as deductive or as inductive inferences, or both, and if so how.

법학전문대학원 제도가 도입된 후 법학은 큰 변화를 맞이하였다. 바로 학문으로서의 법학의 시대는 저물고 직업으로서의 법률실무가의 시대가 도래한 것이다. 학문으로서의 법학의 역사는 오래되었다. 서양에서는 로마 시대부터 학식 법률가들이 법학의 발전을 이끌었다. 이후 중세시대 대학교의 개교도 법학 교육과 깊은 연관성을 가지고 있었다. 서양의 여러 문화와 문명의 발전에 법학이 이론적 기초를 제공한 것이다. 동양에서도 오래전부터 서양과는 다른 형태의 율학(律學)이 발전되고 계승되었다. 또한 동양에서는 국가 차원의 법학 교육뿐만 아니라, 민간에서는 송사소설(訟事小說)을 활용하여 법학 교육을 하기도 하였다. 한국에서는 1890년대 이후에야 근대적 의미의 법학 교육이 도입되었다. 법관양성소와 법학교에서 교재로 사용하기 위해 일본의 법학통론 교과서 등을 저본으로 법학교과서를 만들어 학생들에게 교육을 하였다. 대표적으로 주정균의 저서인 법학통론을 들 수 있다. 해방 이후 한국 법학은 일제 잔재인 일본식 법학을 극복하기 위한 노력을 하였다. 특히 초기 법학자들은 독일의 이론을 받아들이면서도, 이를 한국 실정에 맞게 변용하려 하였고, 한국법제사 등 한국 고유의 법학 교과목이 개발되기도 하였다. 현재 한국의 법학 수준은 세계 여러 나라에 비추어 부족하지 않다. 도리어 한국의 로마법 연구는 다른 나라의 로마법 연구를 압도하는 수준이기도 하다. 그렇지만 법학의 미래는 암울하다고 할 것이다. 학문으로서의 법학은 고사가 되었고, 오래지 않아 법학은 그 명맥이 끊어질 수도 있다. 이는 법학전문대학원을 개청하면서 법학과를 폐지한 것이 제1차적 원인이라 할 것이다. 법학전문대학원은 법률실무가를 양성하는 기관이고, 법과대학은 법학자를 양성할 수 있는 기관이다. 그런 의미에서 지금이라도 법학전문대학원 체제와 학부 법과대학을 병행할 수 있는 제도적 길을 모색할 필요가 있다.After the introduction of the law school system, legal studies changed drastically. The era of studying law as an academic discipline has passed and the era of legal practitioners as a profession has arrived. Law as a discipline has a long history. In the West, from Roman times, scholarly lawyers led the development of jurisprudence. The establishment of universities in the Middle Ages also had an immediate relationship with law education. Jurisprudence provided the theoretical basis for the development of many Western cultures and civilizations. In the East, criminal jurisprudence different from that of the West has been developed and inherited. In addition, legal education was provided at the national level and in the private sector, and law education used ancient books based on litigation cases. In Korea, legal education in the modern sense was introduced only after the 1890s. In law schools and training centers for judges, Japanese law textbooks were used to create law school textbooks and educate students. A typical example is legal outline by Ju Jeong-gyun. After liberation, Korean jurisprudence developed by attempting to surpass Japanese jurisprudence. In particular, early jurists accepted German theories and attempted to adapt them to the Korean situation. Korean law courses, such as the history of Korean law, were also developed. Currently, jurisprudence in Korea no longer lags behind compared to other countries worldwide. The study of Roman law in Korea is at a level that surpasses the study of Roman law in other countries. However, the future of jurisprudence is not promising. Jurisprudence as a discipline is over, and it may not be long before it will cease to exist entirely. The primary reason for this is that the Department of Law was abolished when the law school system was introduced. A law school is an institution that trains legal practitioners while the College of Law is an institution that trains legal scholars. In that sense, it is necessary to find a systematic solution to combine the law school system with the College of Law.

The essay examines two ideal types of legal thinking that Max Weber develops in relation to continental and English law respectively. By focusing on the differences in the training of lawyers, two corresponding roles can be distinguished for the university jurist: the academic lawyer and the legal academic. The former is a thematic variation of the practitioner and defines the university jurist’s action in relation to the legal profession: her research mainly supports good lawyering or social reform, her educational functions centre on vocational preparation, etcetera. By contrast, the primary affiliations of the legal academic are not legal practitioners but her university colleagues in the humanities and the social sciences with whom she shares a common calling: in an immediate way, to contribute to a better understanding of the social and political world and to further the edification of future professionals. The non-instrumental ethos that the role of the legal academic represents marks the possibilit...

The legal educator in Sri Lanka occupies a precarious space which is increasingly leading to academic displacement. This is exacerbated by poor pedagogic choices which have gained popularity amongst student masses for not requiring laborious student-centred education. ‘Narration sickness’ that pervades academia is viewed as a safe choice and it therefore hinders pedagogical innovations and renders the academic redundant. Externally, legal academics are perceived as not performing a socially relevant function. The author invites the reader to see how the increasing push for recognising the legal ‘professional’ as a ‘court-centric’ practitioner contributes to academic displacement within a university culture that dissuades ‘academics’ to engage in ‘practice’. Within this backdrop, changes effected to the existing curriculum are aligned with ‘bureaucratic rationalism’ that has infiltrated academia, and, is, at the least, indirectly sustained through student lethargy. The author focuses on three deep-rooted causes of academic displacement: namely, pedagogy and intellectual demise, curriculum traditionalism, and the narrow construction of the ‘legal practitioner’. The author warns that failure of academics to deal with these concerns will lead to academic displacement and makes an appeal to the academic community to reassess and reconceptualise pedagogy, curriculum, and the profession.

"Practicing law" has a dual meaning in this book. It refers to both the occupational practice of law and the practicing of transplanted laws and institutions to perfect them. The book constitutes the first monographic work on the legal history of Republican Beijing, and provides an in-depth and comprehensive account of the practice of law in the city of Beijing during a period of social transformation. Drawing upon unprecedented research using archived records and other primary materials, it explores the problems encountered by Republican Beijing’s legal practitioners, including lawyers, policemen, judges and criminologists, in applying transplanted laws and legal institutions when they were inapplicable to, incompatible with, or inadequate for resolving everyday legal issues. These legal practitioners resolved the mismatch, the author argues, by quite sensibly assimilating certain imperial laws and customs and traditional legal practices into the daily routines of the recently imported legal institutions. Such efforts by indigenous legal practitioners were crucial in, and an integral part of, the making of legal transplantation in Republican Beijing. This work not only makes significant contributions to scholarship on the legal history of modern China, but also offers insights into China’s quest for modernization in its first wave of legal globalization. It is thus of great value to legal historians, comparative legal scholars, specialists in Chinese law and China studies, and lawyers and law students with an interest in Chinese legal history.

At the heart of the debate over law blogs as legal scholarship are bigger and more important (and perhaps scarier) questions about legal scholarship and the activities of law professors. First, the blog-as-scholarship debate raises fundamental questions about what exactly legal scholarship is and why legal scholarship should be considered an essential part of a law professor's vocation. And the key follow-up question is whether blogging should be part of that vocation. In this paper, I set out a few initial observations about the evolution and value of legal scholarship, and then share some thoughts on the power, possibilities, and pitfalls of law professors blogging to explain why I hope blogging will become an accepted part of a law professor's vocation.

This essay imagines a world in which law professors tracked their work hours. It identifies some of the diagnostic attributes of the academic “billable” hour, explores the potential destructive dark side of timekeeping, and examines the nature of the relationship between the diagnostic and destructive qualities of recording academic time. Next, it introduces some of the political implications of recording academic time, and explores some of the normative discussions timekeeping might help inform. We know little about what law professors do and how they spend their time. While we know law professors’ teaching loads, we do not know how many hours they spend preparing for classes, interacting with students, or developing and grading assignments, let alone how they spend their time pursuing all of these activities. Similarly, while we know quite a bit about how much law professors publish and about the quality and impact of their scholarship, we do not know how they identify topics for inquiry, research, write, and publish. Finally, while we know a fair amount about law professors’ service commitments, such as their committee assignments, we do not know how much time and how they spend their time on service activities. In short, we know very little about law professors’ work habits. What we do not know matters. Timekeeping by law professors can generate useful diagnostic insights that may inform and improve legal academia. If all law professors were to record their time teaching, serving, and researching we would know more about what law professors do and how they do it and would be able to generate benchmarks and best practices, which may inform individual decision-making by faculty members regarding how to allocate their time, as well as institutional decision-making by law schools about how to assess and allocate their human capital resources and how to effectively train and mentor junior colleagues. Timekeeping, however, also has a dark destructive side, as it may undercut the intellectual and contemplative culture of legal academia and may help create disincentives for thinking, unintentionally triggering and contributing to a process of replacing standards of quality and professional excellence with managerial reporting of hours. Indeed, the two sides of timekeeping, the diagnostic and destructive, may be inherently intertwined such that the very act of keeping academic time may undercut the core mission and objectives of legal academia. Lawyers’ experience with the billable hour suggests some valuable lessons in terms of thinking about academic timekeeping. Unlike law practice, legal education need not and should not feature an inherent tie between recorded time and compensation. Distinguishing the diagnostic from the punitive by mandating academic timekeeping while liberating law professors from any compensation consequences attached to recorded time, may help address some of the concerns regarding the dark side of timekeeping. Thus, a time-limited, mandatory national experiment with academic timekeeping based on universal agreed upon time categories, supported by an apparatus of ethical timekeeping, and divorced from compensation consequences may avail legal academia of the diagnostic virtues of timekeeping while keeping its the destructive qualities at bay. Admittedly, recording time may provide enemies of the academia with powerful ammunition. It may, for example, be used by critics to demand increased teaching loads and restrict investment in research. Yet continued ignorance about what law professors do may be too high a price to pay for a false sense of security. Moreover, robust knowledge about law professors’ work habits may inform normative discussions about what law professors should be doing, an important contribution given mounting criticisms of law schools and legal education.

Teaching family law using the traditional casebook method provides students with marginal knowledge and skills. To practice family law, one needs to know how to interview and counsel clients, negotiate with opposing counsel, file pleadings and supporting documents, draft agreements, and understand tax consequences. Moreover, ethical issues abound in the practice of family law, such as confidentiality, conflict of interest, and fee arrangements. Critics of traditional pedagogies in legal academia have included the MacCrate Report, the Carnegie Report, and Best Practices for Legal Education. The Family Law Education Reform Project has focused its attention on the failure of law schools to keep pace with the ever-evolving nature and requirements of family law practice. This article offers one answer to those who seek to educate law students in a manner that will better prepare them for the practice of family law. The author, who is the director of Vermont Law School's General Practice Program, describes a family law course she has developed and taught for many years. The course is taught in an integrative fashion, and includes substantive law, practice skills, and ethical and professionalism issues. She offers the course as a response and antidote to the ongoing criticisms of tradition a methods of teaching law.

This chapter looks at the legal profession from the perspective of law and economics. It examines the legal profession from a labour market perspective. Firstly, it looks at law schools, which serve as an initial gatekeeper for the legal profession. Within law schools, it reviews the literature on admissions, bar passage, and educational debt. Secondly, it considers the labour market for lawyers, looking at the small competitive market of judicial clerkships; the practice of law, predominantly from a large law firm perspective; and the smaller competitive markets for judgeships and legal academia. Thirdly it looks at attorney quality and performance, reviewing the literature that examines attorney quality within and across areas of law, and perceptions where disparity may be the greatest. It concludes with a discussion of the future of law in the aftermath of the 2008 global recession and recent developments in technology.

John Dugard’s courageous inaugural lecture drew on American realism, modern natural law and South Africa’s liberal tradition to argue that judges might better serve the ends of justice if they recognised their creative role, and replaced their subconscious prejudices and preferences with liberal values of the common law. This turn to legal realism to understand South Africa law was a significant intellectual development. However, its implications remain undeveloped within the theory and practice of law in South Africa. (Critical )legal realism raises significant questions about the nature of law and its role in sustaining public and private power. The lessons of legal realism in relation to the dominant legal method (formalism) and the nature of private law were not really taken up by lawyers and legal academics under apartheid. This meant that South African lawyers were ill-prepared for the challenges of transformation in the legal system, especially in relation to legal method, the form and content of private law and the development of law under ss 8 and 39(2) of the Constitution. Moreover, while progressive lawyers have always recognised the political nature of law – especially under apartheid – this has not always translated into a deeper understanding of how the form and content of our democratic Constitution is contested, and how law and politics seep into one another.

This article evaluates the challenges of modular redesign and the potential contribution of serendipity in legal education by advancing a “living” curriculum model. The archaeology of the curricular redesign process is excavated by exploring the conditions influencing and constraining curricular redesign. Whilst this study is primarily located within the theoretical context of curricular redesign, it is also rooted in both the practice of law and higher education literature. A key concern of this research is to consider the under-explored interaction between serendipity and curricular design with a particular focus on how the surrounding serendipitous conditions proved timely and welcome in creating an unanticipated opportunity for such redesign. There remains a surprising dearth of research evaluating the influence of serendipity in legal education generally and, more specifically, with respect to the challenges of module redesign and delivery. This article uncovers a research agenda with themes concentrated on the role of serendipity in curricular design and how “real world” relevance can be incorporated into module redesign and delivery. It is suggested that serendipity-sensitive curricula which acknowledge current debates within law and the contemporary contexts within which law operates enhance students’ capacity to recognise the relevance and applicability of their legal knowledge. By remaining alert to the potential for serendipitous innovation in curricular redesign and by re-engineering curricula to facilitate serendipity, legal academics can enhance the incorporation of “real world” relevance into academic teaching.