Legal Commentary

I want to combine a couple of recent topics of discussion: a) Erwin Chemerinsky's Michigan Law Review essay (which Bill commented on) and b) Cardozo Law Review's launch of De Novo, its on-line supplement intended to provide an even broader forum for short scholarship, including c) a fun forthcoming piece of advice for a new law professor by my colleague, Matthew Mirow.

The question is should we do with these new scholarly forums and how should they be worked into out scholarly expectations and our tenure standards? And Chemerinsky's discussion of the legal scholarly enterprise is a good jumping off point. A couple of sub-questions and sub-issues presented here.

First, Chemerinsky defines scholarship as that which makes an important, original contribution that add substantially to the body of legal literature. Form and audience are less controlling, although Chemerinsky does suggest that blog posts and op-eds do not qualify. But journals such as De Novo or Northwestern Colloquy or Yale's Pocket Part are doing something different. They are publishing short pieces (3000-5000 words, shorter even than the typical law review "essay"), although longer and more substantial and substantially researched than most op-eds or columns and most blog posts. And important, original ideas can be presented and argued in this forum. Or at least similar ideas from larger pieces can be presented in a different form, with a different emphasis, for a different audience.

Second, should junior folks be encouraged to write for these forums? These pieces are relatively easy to write in a short period of time and the lag from acceptance to publication may be a matter of weeks. So a prawf can go from idea to publication in two-three months, in a forum that may reach a fairly wide audience. If the rule is to always be writing and involved in the conversation, it seems to me this is an easy way to get some publications under one's belt and to get your name and your ideas out there.

Third, how does this affect what we all should be doing with our time at any career stage? In the old world, it was all about lengthy law review articles that were submitted at one of two set points during the year and that typically took six to 12 months, acceptance to publication. And there really were no other options--no alternative outlets or forums, no alternative forms of scholarship. But on-line supplements alter that. So while big (although not-quite-as-big) law review articles remains the coin of the realm, there are other outlets and options. So to what extent should we make those other options part of our annual scholarly plan--one big article and one essay or reply for on-line placement each academic year?

Finally, how does this get written into the tenure standard? At most schools, the statutory minimum is written in terms of big law review articles. At FIU, the illustrative standard (not intended as a necessary-and-sufficient quantification) is "three substantial scholarly works" by the start of the sixth year. Should that standard be revised to recognize the new scholarly reality? Should it speak not only of substantial scholarly works, but of "other" scholarly writing, which might include electronic supplements. Should they be part of the body of scholarly work that is sent to outside reviewers? This is not to suggest that a junior faculty member who goes up with three 3000-word essays for supplements should get tenure; only that she she should get credit for writing such essays in addition to her three or four substantial scholarly works. Tenure should be based on the overall body of work; can and should we expect that body to include some pieces intended for on-line supplements and other scholarly places? And should we write formal standards accordingly?