Legal Commentary

Yesterday the NYT reported on the growing use of PDAs and the Internet by jurors in the midst of trial and deliberations.  Although sometimes the problem is information flowing out from the jury, in many cases the jurors are trying to do their own investigation beyond the parameters of the court.  This thirst for outside information seems natural:

Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as a juror?s pocket, the risk has grown more immediate ? and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.

Mr. Keene said jurors might think they were helping, not hurting, by digging deeper. ?There are people who feel they can?t serve justice if they don?t find the answers to certain questions,? he said.

Law reviews now have access to a lot more information about the articles submitted for consideration, for reasons similar to the juror phenomenon.  The Internet has made authors' biographical details easy to find, and has made this information much "thicker" in terms of resumes, SSRN drafts, news stories, and blogging.  (Think back to the biographical information available in, say, 1992, or even 2002.)  Given that ExpressO encourages the submissions of CVs along with articles, it would seem that law review editors are interested in this outside information and are making use of it.

However, there is something about this natural investigative urge that cuts against the Platonic ideal of the submission process. In the best possible world, the argument goes, the law review would simply consider the article itself and would make the review process anonymous to exclude all outside "noise."  That way, any biases based on the author's past work, institutional home, or political ideology would be excluded from the process.  The article itself would rise or fall based purely on its own merits.

I posted yesterday about the new input law reviews are seeking from their own faculty or even outside faculty as part of the submission process.  Most folks seem comfortable with faculty involvement, on the theory that more information is better and that professors can provide helpful guidance to students.  But law reviews are moving to this new model sporadically, and without much uniformity in terms of input or transparency.  Perhaps profs and law reviews could work to develop some sort of "best practices" for outside input as we move away from the "article and article alone" model.  And before we move away from it, are there aspects to the "article and article alone" model that we might want to keep?