Online criminal law debate "brings peer-review to legal scholarship, but it's more like peer-in-your-face."
August 14, 2008
PHILADELPHIA – More than 100 leading scholars are selecting and debating the fundamental questions of modern criminal law not at professional conferences or on cable-TV news, but directly with one another via the web. It is a law professor's version of "American Idol." Receive enough votes and you can defend your ideas against criticism from the judges (other law professors); too few votes, and you get kicked off the stage. But instead of a new recording contract, the result will be a definitive book from Oxford University Press and a radically new approach to legal scholarship. "Too often opposing advocates talk past each other," says Paul H. Robinson, the lead editor of Criminal Law Conversations and the Colin S. Diver Professor at the University of Pennsylvania Law School. "You could say that this brings peer-review to legal scholarship, but it's more like peer-in-your-face." Almost all legal scholarship occurs in one of four ways: thoroughly researched and extensively documented papers are vetted by student editors at law reviews and journals; they are presented at student- or faculty-organized conferences that offer little if any time for give-and-take among presenters; they become chapters in books that can take as long as four years to produce; or they become books from a single author. Here comes a fifth, more interactive, way. Robinson and co-editors Kimberly Ferzan, professor and associate dean at the Rutgers School of Law—Camden, and Stephen Garvey, professor at Cornell University Law School, are guiding professors in a 10-month online effort that will result in publication of a book by Oxford University Press. To date, 120 scholars have joined in the project. They are nominating several dozen scholarly works for discussion, based on the relevancy and compelling nature of the pieces. The author of a nominated work will produce a 4,000-word "core text" that summarizes his or her thesis, to which four to 10 scholars will then write 800-word criticisms, the length of a typical newspaper op-ed. The original author will reply to the critiques, with these "conversations" making up the published book. All nominations, critiques and responses are managed through the Criminal Law Conversations website at Penn Law. Any full-time law professor anywhere in the world can join the website, nominate their own work or the work of others, and volunteer to comment on works that have been nominated. Any visitor to the site can monitor the nominations, the essays and the responses. Leading topics under consideration include whether it can be proper for African-American jurors to acquit black defendants for racial reasons, whether the insanity and entrapment defenses should be abolished, and whether it's ever appropriate to jail a blameless person in order to prevent a crime. "We are looking for well written, accessible arguments about enduring ideas that will have an audience beyond criminal law scholars and will remain interesting to readers for a decade to come," said Rutgers-Camden's Ferzan. "We are doing this in light-speed for our business," added Cornell's Garvey. "Scholars already are excited by the give-and-take, and the papers and critiques will make these issues more accessible to students and others." Nominations that do not generate sufficient interest from other scholars on the web site are dropped to inactive status. This has ruffled the feathers of some legal scholars who prefer the more traditional approach. "Some professors who publish regularly in law reviews and appear at conferences may see tepid interest in commenting on their work from other scholars," said Penn Law's Robinson. "This project is an ultimate marketplace of ideas. We can't make people comment on arguments that they don't find engaging." The flip side, and what will make the project successful, is that scholars whose works do generate interest find it hard to say "no" to writing a summary of their argument when many colleagues are volunteering to, well, take them on. "It's human nature to be flattered when others think your thoughts are important, even if they disagree with you," Robinson said. "This effort is going to shape the future of legal scholarship." Oxford University Press is considering applying this model to other areas of the law and other fields of scholarship, he added.