Rethinking the Law School and the way law academics publish (reference to @CarelStolker)

I have recently been flipping through the (electronic) pages of Prof. Carel Stolker's Rethinking the Law School. Education, Research, Outreach and Governance (Cambridge, CUP, 2014) and found some of the insights and views he expresses particularly stimulating. The chapter on "Lawyer's ways of publishing" is my pick of the day. 

As an academic blogger (blawgger?), some of his remarks could not be more central to my day-to-day activities and to the hopes I have for a renovation in the way academic outputs are produced, published, graded and recognised by Universities and the international community of scholars alike.

Prof. Stolker encapsulates the law blogging phenomenon and the challenges it puts to 'traditional academic publication' as follows 

An interesting development is the rise of blogs. Law blogs (‘blawgs’), sometimes complemented by online companions and other vehicles of ‘short form’ legal scholarship, may better serve the needs of the practitioners and enhance the scholarly debate among the academics. Their increasing popularity–especially in the US where law articles tend to be the very opposite of ‘short form’– raises new issues: might these blogs harm legal scholarship, or are they becoming a legitimate form of legal scholarship in their own right? Do blogs register intellectual property, as journal publications do? Will these blogs replace our thousands of law journals worldwide in the long term, and do libraries have a responsibility to preserve the blogs for future generations? All these new developments might even herald the coming of an era where legal scholarship will mainly be available online rather than in print … (pp. 233-34, footnotes omitted, emphasis added).

Prof. Stolker also links the raise of online access to content (not only in blogs) with the neighbouring issue of scholarship dissemination via the use of social networks, and rightly points out that

Overall, one-third of our scientists and scholars are reported to use LinkedIn and Twitter. Science and scholarship are rapidly transforming into a fascinating variety of digitally networked forms. Too often the distribution and communication of the products of legal scholarship are considered the exclusive responsibility of the publisher. However, making your work widely accessible is, as we have seen, primarily a duty of the scholars themselves. Until we make progress in this area, cross-border scholarly debate will continue to be seriously hampered (p. 260, emphasis added).

These two insights trigger some important questions for further reflection. In my opinion, the answers that Law Schools give (or not) to these questions will determine whether they manage to attract or retain innovative legal scholars--who wants to work at an Institution that considers blawgging something you do on your free time?--and, maybe more importantly from the institutional perspective, whether they maintain or develop an online reputation that allows them to attract the best students, particularly at postgraduate level.

In my personal view--the reader should bear in mind that I blog as a passion and that I am very fortunate of my scholarship being on the top 0.5% of SSRN authors by downloads, so I may quickly be seen as conflicted on this--blogging about legal developments and engaging in debates and dissemination of research in social media are truly valuable activities and they should be recognised as such. Blogs allow for an immediacy of academic debate that is impossible to match for any other platforms, either printed or online. Moreover, given the increasing constraints on publishing "proper", "printed" research [at least in the UK as an (undesired?) effect of the REF], some traditional sorts of legal scholarship such as case comments or book reviews are languishing as scholars are pressured into publishing (only) 4* outputs (which, almost by definition, cannot be of those sorts). Consequently, I do not think that they will substitute all other forms of legal scholarship, but they are bound to fill a gap that has existed for a long time and that may be (in part) responsible for the distance with which practitioners look at legal research (if they ever look into law books at all).

However, blogs remain at the margin (if not completely outside) of academic assessments and blawggers are simply aficionados that share their views out of personal interest, search for fame/impact, or boredom. In my view, this needs to change. Not because that would make the life of the academic blawgger easier (which it certainly would), but because more academics would feel tempted to "take the risk to go online" if the incentives were not so clearly against it. And that would benefit all of us, both when the quality of the blogging was good, and when it was bad, as I would expect that academic debate and peer-review would swiftly establish quality controls or, at least, interesting exchanges of ideas.

Overall, to keep this rant short, I would like to see all deans and heads of law school's reading Prof. Stolker's book, at least to get the conversation really started.

Beyond reasonable doubt?: Proposal for #simplification of the #acceptance of #publicdocuments in the #EU and #publicprocurement

The European Commission has recently launched a Proposal for a Regulation on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the EU [COM(2013) 228 final], which advances: 1) the abolition of the formalities of 'legalisation' and 'Apostille' for intra-EU public documents and 2) the creation of standard multilingual forms for certain (limited) public documents. In the area of business activity, this proposal affects documents such as proof of  the legal status and representation of a company or other undertaking.

Remarkably, the Proposal  (art 4) exempts these documents from all forms of legalisation and similar formality (in particular, the use of the famous 'Apostille'). It is clear, though, that the simplification merely concerns the 'acceptance' of such intra-EU public documents (either in original form, or their certified copies, art 5). And, even in the limited context of acceptance of intra-EU public documents, the proposal includes a system whereby contracting authorities can request additional information (to the central authorities of other Member States within the Internal Market Information System, under Regulation 1024/2012) when they have reasonable doubts as to the authenticity of such public documents (art 7)--which simply shows that the system is not really based on mutual acceptance of documents and that security / anti-forgery devices are still not there.

Furthermore, beyond mandatory acceptance (with all its caveats), the proposal crucially does not cover the 'recognition of the content' of the intra-EU public documents (art 2)--which may significantly diminish the effectiveness of the Proposal, since it falls short from ensuring full operability of the use of (non-translated) public documents in countries other than that of origin (or one sharing the language). 

In that regard, the Proposal is well-intended but not necessarily definitive in the treatment of non-certified translations (art 6), since it establishes that "Authorities shall accept non-certified translations of public documents issued by the authorities of other Member States [BUT] where an authority has reasonable doubt as to the correctness or quality of the translation of a public document presented to it in an individual case, it may require a certified translation of that public document. In such a case, the authority shall accept certified translations established in other Member States". 

'Reasonable doubt' may (again) be a faulty standard here, since it can either leave this safeguard void of content, or give it excessive amplitude. Generally, contracting authorities will have a hard time justifying that they have grounds to (reasonably) suspect the improper translation from languages that are arcane to the public servants involved--and, hence, a strict interpretation of the standard of 'reasonable doubt' may result in an absolute requirement of acceptance (particularly if it is couple with an increasingly demanding duty of good administration as a matter of EU law).

Reversely, and probably adopting a pragmatic approach, review courts may be too lenient and determine that 'reasonable doubt' covers almost any case in which a (well-intended) public servant is distrustful of the non-certified translation provided by the EU citizen / business--in which case, the virtuality of the system envisaged in the Proposal of the Commission can be doubted. One way or the other, the standard of 'reasonable doubt' seems faulty and will lead to either improper and excessive recognition of documents badly translated, or the improper and excessive rejection of well-translated documents (or both). Surely, the situation seems far from ideal.

Trying to avoid these obstacles, the Proposal also establishes Union multilingual standard forms that are aimed to completely harmonise and provide 'automatic / implicit' translations of the affected documents (Annex V details the multilingual standard form concerning the legal status and representation of a company or other undertaking).

So far, the list of multilingual standard forms is very short and, to no one's surprise, it is hard to see how it can be satisfactorily extended to more complicated legal (public) documents without actually creating more problems than it would solve.

All these proposals are reminiscent of the 'European Procurement Passport' that the European Commission proposed creating in December 2011 and that the Council was quick to scrap from the current agenda for the revision of public procurement rules concerned with business formalities. One may wonder if the newest Proposal by the Commission will not meet the same faith, at least as business / commercial documents are concerned.

In general, it seems that the issue of cross-border use of public documents will remain intractable until we realise the massive elephant in the room: language disparity. It seems impossible to attain an effective unified (or, at least, a smooth functioning) public administration if English is not finally adopted as the single language across the EU for all official matters with a cross-border dimension. However, this debate seems beyond political will, beyond potential agreement, and beyond tractability.