Of Social Media and the Demise of Traditional Law Reviews

At a New Year's Eve party my wife and I hosted this year, a good friend shared the following story. His teenage son had spent over three hours all alone in his room on an unseasonably warm and sunny day. When asked, "What are you still doing up there?", the boy's earnest response was, "Dad, I'm socializing."

Much has been written about the pros and cons of networking sites like Facebook and Twitter that make it more difficult for people (especially the young) to connect with each other when inhabiting the same physical space. Some of the downsides of social media are its highly addictive nature, the strong urge to respond immediately (often without reflection) to personal attacks, and the knowledge that intimate details of your personal relationships are often made public.

The new technology also makes it easier for people with wrong intentions to wreak havoc in new and disturbing ways. Cyber bulling and threatening websites are proliferating, and recently the Supreme Court refused to hear several lower court cases where students engaged in obviously egregious and harmful online behavior. In one case, a girl suggested another student had a sexually transmitted disease while in the other a student said his principal smoked pot and kept beer behind his desk at work. The Court's refusal to hear these cases creates much uncertainty over what school administrators can and cannot do to regulate such dangerous speech.

Although the rise of social media and fears of "stranger danger," and clique by click for our children (as well as identity theft for us) should cause great concern over how we and our children interact with each other, the ability to connect with thousands of people instantaneously can have important and valuable professional benefits. I have been a constitutional law professor for over two decades and, prior to this year, published over 20 traditional law review articles on controversial issues such as abortion, affirmative action, and gun control. These articles were mostly read by tenure and promotion committees and maybe a few other academics. For those who don't know, law reviews are virtually all student-run and the second and third years who decide what gets published favor non-practical, philosophical and-overly footnoted work. In addition, articles can take up to a year (or more) to go from submission to print. It is therefore not surprising that a federal judge recently lectured a conference room full of law professors that much of our scholarship is virtually useless to lawyers, judges, and the public at large. He is right. As more online journals, which publish shorter and timelier works, are popping up, the days of the 50-page opuses are hopefully numbered.

For some of those reasons, I recently started writing shorter (and hopefully more relevant) pieces for, among others, SLATE and the Huffington Post, and I began using Twitter to publicize my work. The first of these articles was an essay arguing that Justice Elena Kagan should recuse herself from the health care case the Court is hearing this term. This editorial was likely read by more people than all my law review articles combined and led to further discussion in the Wall Street Journal, the National Review, and various high-profile legal blogs such as the Volokh Conspiracy, and led to an offer to join in a debate about judicial recusal from an Ivy League Law School. This exposure was good for me, my school, and my students, but was unlikely to come about through the traditional law review process.

This recent experience, however, has also taught me that opining online in the professional world (just like baring oneself in the online social world) carries a great risk of misinterpretation. My initial editorial in SLATE led to sharp personal attacks somewhat divorced from the merits (or lack thereof) of the arguments I made. The Wall Street Journal called me a "phony," some of my fellow liberals vilified me, and a reply in SLATE attacked me misleadingly several times. I came to learn that the vast and immediate audiences for popular web venues make it altogether too tempting for people to counter controversial positions with derogatory name calling, and the ability to respond to mischaracterizations of one's views is limited (the WSJ wouldn't publish my letter in self-defense, though SLATE gave me a couple of paragraphs to respond), and ulterior political agendas can be hard to decipher. That is part of the cost of doing business in this new world and I can handle it -- though it did provide me a window into the addictive nature of having so many people read and respond to your views, and the desire to have the last word in a world where there is no last word. As Dahlia Lithwick of SLATE mentioned to me, the new technology has the potential to turn us into "slavering narcissists."

As a father, I am deeply concerned with how my children will learn to cope with the new social media that will inevitably interfere with their ability to connect in person with others. As a professor, I am boundlessly optimistic that they will be able to affect the way people think in ways I can't even imagine. I wish the potential of one didn't carry the risks of the other, but I am afraid that is the Yin and Yang of our new world. We won't be able to turn off the new technology, but hopefully, as parents and professionals, we can quite consciously decide to more clearly understand both its risks and its rewards.