I just wasted a few hours doing what conscientious attorneys in rapidly developing areas of law do: reading law review articles. Many attorneys disdain the law reviews. How much of that is sour grapes I do not know (I was Articles Editor for the University of Illinois Law Review), but I'm sure that's at least some of the problem. More critically, too many law review articles resemble medieval arguments concerning angels dancing on the head of a pin, particularly as most sentences have at least one and often more footnotes with exhaustive lists of "authority" for that proposition. Conversely, too many lawyers in practice have no idea what they're doing theoretically.
When I first began practice, I was thrown an appellate brief. The attorney who had been handling the matter had just gone on emergency medical leave. I wasn't licensed yet, but I had 22 days to prepare and file the brief (to be signed by the partner, of course; my lack of license was merely the result of waiting for bar exam results to come back). If I had not gone through several law review articles early on, I might have made the same mistake the firm had made in the District Court on a critical issue. Those articles pointed out a theoretical hole in the District Court's rationale. It is probably not entirely coincidental that we mostly won that issuea technical issue of first impression on federal jurisdictionand lost the other two (for which I did the best I could, but had to rely upon the partners' opinions and briefs in other matters almost exclusively). It was somewhat gratifying to have the core paragraph in that section of the brief thrown at opposing counsel during oral argument and get to watch her flounder. The judges did not quite agree with everything in that section, but from a litigation perspective the result was eminently satisfactoryparticularly since it enabled me a few months later to argue and win the issue in the District Court on grounds of estoppel against the defendant.
In any event, this round of law review articles, dealing with "copyright in the Internet age," was particularly unsatisfying. Most of the writers have the same problem as do the proponents of "information wants to be free": they're tenured professors (or, occasionally, independently wealthy), and thus do not have to make a living with the intellectual property they create. More on this another time.