affiliated to the International Association of Constitutional Law
I was contemplating my lectures for the coming academic year and I started to feel annoyed – I think the two were connected. Lecturing has started to seem a rather odd and inefficient way of communicating information about constitutional law to students. Though lectures can be fun to deliver, they are also a pain. For the lecturer, they consume a significant amount of time and energy, raising a sense of déjà vu, as last year’s insights and jokes are dusted off for a new audience. But things are worse for those who have to listen to the thing: dragged into a lecture that can last for an hour or more, a moment’s lack of concentration can mean important points are missed – and few in the audience will only suffer a moment’s inattention. It is becoming obvious that the opportunities presented by the Internet will change this over the coming few years; I would bet that the old-style lecture will only last little while longer (though there are strong forces of creaking institutional inertia protecting it). Putting to one side next year’s teaching, I began to speculate on the ways in which the Internet might change the ways in which we, as legal scholars, communicate our subject to students and to people more generally in the medium term. In this post, I will reflect on how I see legal academia developing over the next five or so years – I think we are on the cusp of a very exciting and largely positive shift in the way in which we operate.
We are already seeing the impact of the Internet on academic publishing. Twenty years ago, legal academia operated in a narrow area and at glacial speed. To publish an article – or even a case-note or book review – took, and often still takes, many months. The paper is written, submitted to a journal, and, even if the journal likes it, the editor or referees will often ask for changes, the changes having been made and reassessed by the editor, the article goes into press, comes back for proofing, and is then be released to the world. The whole process, from submission to publication, takes between four and six months, often longer. There are plenty of opportunities for the author to revise and rethink the paper – and a number of stages at which other readers can advise her to do so, if necessary. Before the Internet, when journals were in hard copy only, the paper would be read by a small group of people with access to the journal – largely other academics and a few practicing lawyers. The paper would then sink into inaccessibility in dusty library stacks, and, with a few exceptions, would rarely be seen again. This system worked well in maintaining a high standard for publication – it was excellent in preventing the publication of mistaken or foolish material – but it pretty much guaranteed that the material produced would have little or no impact.
Though this glacial progress still continues in some areas, the Internet has created an alternative modes of academic engagement that provide cures for the disadvantages of the old model of publishing.
First, those old-style articles can now be made more widely available. Many law review articles can now be read online, through SSRN and other websites. These articles have essentially the same content and form as their pre-Internet counterparts, but are now far more accessible. The publication of these papers may still be as time-consuming as the older journal model – and the consequent benefits of scrutiny and time for reassessment remain – but now the articles have a broader reach and, potentially, a longer life-span.
Secondly, in other areas, older forms of scholarship are adapting to fit the new medium, changing in response to the Internet’s strengths. Many academic blog posts, for example, are the descendants of the old analysis papers and case-notes originally found in journals. These were often intended to be topical responses to legal developments; drawing readers’ attention to a new case or a current issue. Under the older model of publishing, the delays of the journal system could render these pieces of limited value – the debates they sought to engage with might be over before they got to press. The recent excitement over the Miller decision (and, a couple of years’ earlier, the debates over the Scottish independence referendum) show the emerging capacity of blogs to permit academics to engage with important constitutional issues as they unfold. Not all of the blog posts about Miller were of a high standard, but many were – and many could easily have found their homes in the analysis sections of Public Law or Modern Law Review. As well as the benefits of rapid publication, the rise of the blogs has also brought with it a welcome relaxation of style. Now the material is more accessible, many authors have responded by beginning to write blogs designed to be read by the lay public, and not just by lawyers and academics. This is a wholly good thing. Law, as an academic discipline, is not like the higher levels of maths or physics which require significant amounts of prior knowledge before a new argument can be grasped: any legal issue can be clearly and accessibly explained to a lay person who is willing to listen.
Thirdly, the Internet has also created wholly new forms of academic engagement. Twitter permits the shortest of all short-form publications – allowing the rapid publication of 140 character pronouncements on legal affairs – and Facebook permits debates within groups of ‘friends’. We will come back to Twitter and Facebook later.
The hazards of the Internet are the inverse of traditional academic publishing. The ease and speed with which material can be published increases the risk of error and of ill-considered scholarship. This may be partly due to the laziness of scholars but it is, also, the product of a collective pressure to publish quickly. This speed can bring with it the risk of injudicious critique of other people’s work – Twitter, in particular, has lead some otherwise sensible people to say some very foolish things. The mandatory pauses for reflection that were necessitated by the old system have gone. Returning to the blog and Twitter exchanges over Miller, some were weak, misguided, and ill-judged – under the older system of publishing, these authors would have been spared having their contributions preserved in the Internet, awaiting discovery by a later readership.
Looking into the near-future, the next five or so years, it is worth asking how these trends will progress, and, crucially, whether there are ways in which we can shape these developments to seize the advantages brought by the Internet whilst avoiding its perils. We need to create structures that will make use of the speed and accessibility of the Internet whilst avoiding the risks of sloppy scholarship and blow-hard opinionizing.
A development that we can already see is the merging of traditional law journals and blogs. The best law blogs, like journals, now play an editorial role, reviewing and critiquing submissions before they are posted. As our traditional law journals will move online – and I’d be surprised if any paper journals existed ten years from now – the line between blogs and journals will become blurred. Blogs will start to look more like journals, and journals will start to incorporate blogs. We already see this with blogs such as ICON and EJIL, where the blog is attached to a journal. The attraction of tying blogs to established journals is that these journals have experience in editing submissions, a strong editorial team, and, crucially, a reputation to maintain – a reputation that will then be carried over to the blogs. Along the lines of ICON and EJIL, the blog posts in these journals will be freely and immediately available, whilst the articles will probably remain behind a pay-wall (the cost of running a journal will remain substantial, even without print copies, and some means will need to be found to subsidize them). The blog will act as a store-front for the journal, and the older short-form articles – analysis pieces, case-note, perhaps book reviews – will disappear in their current form.
At the moment some senior academics, who often sit on promotion panels, tend to be a bit sniffy about blogs, but the merging of journals and blogs will raise the status of blog posts: getting a blog post into a respected journal will be an indication of its quality. This will act as a flag to potential readers, indicating that the post is worth reading, but it will also be a signal to those appointment and promotion committees: publishing in high-quality blogs will help people’s careers advance. A virtuous circle will emerge: strong blog posts will be submitted to blogs with good reputations, which will, in turn, further enhance those reputations. As a side-note, I suspect that the era of the personal blog as a serious academic enterprise will come to an end. Though there are some very good personal blogs (Mark Elliott’s blog on public law is outstanding) it is hard to see how a personal blog could maintain the quality of an edited blog over the long run.
The editing of blogs mitigates the dangers of the Internet whilst taking advantage of its speed and accessibility. Non-edited forms of publishing – Facebook and Twitter – lack these controls. In the course of researching this post, I have had a look at some of the Twitter feeds of some of my colleagues, and it was not an edifying experience. The very nature of Twitter (and, to a lesser extent, Facebook) encourages ill-considered and ill-tempered publishing; rapid and controversial comments are rewarded. It is worth remembering that these 140 character rants are publications, and can float around the Internet long after their authors have forgotten writing them. I would advise against the use of Twitter and Facebook for academic engagement. At their best – and they are rarely at their best – what they capture is the type of exchange you might hear in a seminar. But this is an instance of the mode of communication cutting against its content. A virtue of dynamic engagement in a seminar is that the participants are not held to the comments they express later on; it is a form of engagement that allows people to float ideas and make comments that they might want to abandon. This form of engagement is ephemeral, and it is its ephemerality that gives it value. (And, for this reason, it would be a mistake to routinely record seminars – a recorded, broadcast, seminar is a very different creature to a closed discussion of a paper.)
Though I suspect that the lure of Twitter and Facebook is irresistible, these are mediums that should be used with extreme caution. They encourage folly and, worse, they then go on to preserve this folly for posterity.
And what of lectures? Just as the divide between journals and blogs will become blurred, the divide between blog posts and lectures may also become less pronounced. There is little to say in favour of the old-style lecture now that we have the capacity to produce, reasonably cheaply, video podcasts (vlogs). At the moment, when the Internet is used, when recordings are made, there is a tendency to record entire lectures and make them available to students or to the public as a whole. This makes for dull viewing. This is a process that is already beginning, but I suspect that lectures will increasingly be replaced by shorter, fifteen or twenty minute, vlogs that will be designed for the medium; that is, they will consist of lecturers talking to camera, perhaps with slides incorporated into the broadcast. A series of these vlogs will then combine to cover the material that used to be covered in the lecture. The good news for lecturers is that the set of vlogs that replaces lectures will not need to be re-recorded each year (and, indeed, they need not be recorded in the heat of term-time). The good news for students is that these vlogs can be watched when most useful, paused, and viewed a second time if necessary.
A consequence of this shift away from lectures – and one that explains why it is taking so long to happen – is that, sooner or later, students will be free to choose from a range of vlogs on the same topic. Numerous academics, for example, will feel moved to vlog on, say, parliamentary sovereignty, and students will then pick the most useful to view. Like blog posts and journal articles, the good and useful vlogs will be widely consumed, whilst the less-good vlogs on the same topic will be more rarely viewed. This will present a threat to those universities that place a great deal of weight on teaching through old-fashioned lectures; after all, students who are watching vlogs from some of the best lecturers in the country will not want to pay a university to provide them with less-good coverage of the same material. But the threat is also an opportunity. First, universities whose lecturers win out in the marketplace, whose vlogs are watched, will attract students: just as the blogs acted as a store-front for journals, the vlogs will act as store-front for universities. Second, the rise of vlogs will free up time for more interactive teaching. Whilst there is little point in continuing lecturing, there is, in the near-future at least, a great deal of point in small-group teaching – seminars and tutorials.
I would guess that vlogs will follow the same evolutionary path as blogs: they will start as small scale productions by individuals, but will move towards some sort of collected, edited, forums which will act as indicators of quality. This may be the universities themselves – some vlogs are already found on university websites, and these institutions do provide some sort of quality control over the vlogs they offer – but I suspect journals/blogs will also start to host vlogs. In a few years time, perhaps the UKCLA blog will have a section of vlogs on various topics – some of which will be aimed at undergraduates, some of which will be aimed at academics.
These changes are going to be disruptive – especially for university administrators – but they will also bring enormous benefits. Legal academics can engage with a far wider audience, students can learn from the very best scholars in their discipline. In the medium term, the next five or ten years, I doubt this will impact on the number of universities and scholars that we will need to teach law. Though lectures will become – perhaps have become – unnecessary, small group teaching is still invaluable, and the benefits of interaction with other students and tutors cannot presently be replicated through digital means. But in the longer term – ten or fifteen years from now? That might be a very different story. As Susskind and Susskind argue, it is likely that there will be significantly less work for lawyers to do, as computers take over the more straight-forward legal tasks, and, at some point, computers will be able to teach some legal skills to students as well as, or even better than, tutors. We will almost certainly need fewer lawyers and fewer law-teachers. But the dangers – and the advantages – of these longer-term developments would require another post.
Thanks are due to Maurice Sunkin for his helpful comments on this post.
Nick Barber is a Fellow of Trinity College Oxford.
(Suggested citation: N. Barber, ‘The Legal Academic In the Internet Age’, U.K. Const. L. Blog (14th Jun 2017) (available at https://ukconstitutionallaw.org/))