Info/Law

Next up: The Role of the Law Professor Blogger

Gail Heriot, from wonderful San Diego, talks about whether law schools should encourage blawgs. Answer: yes, because it enables profs’ function as public intellectuals. (Disclaimer: blogging is such fun that perhaps her perspective is suspect.) Law bloggers want to be topical, consequential, and expert. Law review articles tend to be long, ponderous, and disconnected from key issues. The academy is deliberately dissociated from what practitioners do – aiming towards the rest of the university. Hence, judges and lawyers tend to ignore them. Gail thinks that judges, through their opinions, catalogue the law in the way that early law review articles or treatises did, and so legal academics have had to find other ways to add value. These have included being a legal activist, a legal scientist / philosopher (using traditional tools from other disciplines), or a public intellectual. These are approaches foreign to the typical law firm. Public intellectuals are relatively new because, previously, it was hard for law profs to reach the public. (Sound bites on the local news don’t really count.) Blogging allows more complexity than is available in newspapers or magazines (would they publish the Federalist Papers?), and law schools should encourage the activity.

Orin Kerr notes that many things could advance legal scholarship (including pop-up ads?). He attacks the tyranny of reverse chronological order: the top of the page features the most recent post, not the most important. The best ideas come from thinking about really hard problems, trying out different ideas, and mulling over which answer best fits. “Good” legal scholarship has a lasting impact. Blogs rarely support that. They’re great at informing you about the latest news, but less strong in developing thinking on it. For scholarship, the typical audience is law review editors, but this isn’t (or, at least, should not be) the ultimate audience. Blogs focus attention on the important issues / topics. Focusing on the larger audience can only improve what law profs write.

Gordon Smith illustrates why blogging is, in fact, a scholarly enterprise. He’s interested, like other corporate law folks, in the Disney case in Delaware. He notes that Larry Ribstein announced, “Van Gorkom is finally dead,” and Steve Bainbridge disagreed, in the Conglomerate forum. Chancellor Chandler’s decision in Unisuper, stating that the board of directors acts as the shareholders’ agent, came under fire on the blog, and Chandler reacted (defensively) in a subsequent decision. What is the influence of blogs on the network of law professors? Is this a contribution to knowledge? Yes, and (implicitly disagreeing with Orin) he thinks that reverse chronological ordering draws readers back to the blog. Return readers share experiences with the blog and feel a sense of community. He thinks, though, that commenting is of limited value to scholarship (though important for community-building).

Bring on the commentary!

Randy Barnett points out that oral advocacy before the Supreme Court isn’t scholarship either. Most law blogging isn’t and doesn’t pretend to be serious scholarship. Some, though, is, and more could be. Law professors need to beware the “flight from scholarship.” Most law professors, after all, don’t like doing legal scholarship. Blogging is more fun, so it’s tempting to term it “scholarship” in a self-interested fashion. Serious scholars are a minority in academe. It’s hard to get positive feedback and it’s difficult to acquire readers. Long-form scholarship can generate thinking that can’t be produced in other ways (consider his piece on the Ninth Amendment). Blogging can link the general public to long-form scholarship – perhaps its key function.

Michael Froomkin does 3 types of blogging: activism (ICANNWatch.org, since 1999); personal (Discourse.net, since 2003); and classroom blogs (umlaw.net, since 2004). He doesn’t see medium as message here: blog packages existing tools neatly and easily. Blogs are dependent on the underlying Internet layers, and are vulnerable to standard Internet problems (comment, trackback spam). Are blogs like magazines, or a form like sitcoms? Blogs may be different, though: tools shape content, blog popularity is important (cultural phenomenon), and technoquirks matter (reverse chronological order, Google ranking, trackbacks, comments, etc.). Metrics of blogs, though, are terrible. He writes with different voices for different blogs, and media (including law review articles). He can write on topics outside his sub-specialty on a blog, which is hard to do in law reviews. What’s missing? Filtering of academic writing – SSRN isn’t filtering enough, and neither is Larry Solum. He wants to launch jotwell.com: short (2-4 page) reviews of academic work, and why it’s worth reading – law academia undervalues praising good stuff.

Questions?

- What about the performative nature of blogs? (Obsessive attention to audience – relationship is the key, not the content.) A: (Orin) Bloggers can choose their audience, but there’s no single model of how to do it.

- (Eugene Volokh) Microdiscoveries: disseminating interesting stuff that we’ve thought up, but aren’t willing to turn into a law review article. Can blogging preserve these microdiscoveries? A: (Orin) Forms might combine over time. A: (Randy) Preserving requires publishing. (Eugene): this takes a lot of work! (Randy): if it’s important, it does require (and deserve) work. Going through the publication process denotes commitment to the content / idea.

- Can’t RCO be alleviated by a table of contents or a summary post? What about internal blog infrastructure? A: (Orin) Some blogs do this, especially in sidebars. However, people rarely look at these. (Michael): search is the critical discovery tool. (Gordon): “pushing” content at readers doesn’t work.

- (Larry S.) Google prioritizes posts (based on linking) – incentive to make blog searches productive. RCO does overvalue recent material, but we can present material in alternative ways (that are currently underexplored). Wiki-blog hybridization is promising.

- (Bill McGeveran) Everyone is disappointed about comments on blogs. RSS aggregation to read blogs makes readers passive. Conglomerate’s forum is one tactic to address this, as is the Legal Affairs debate club. Are there other tools? A: (Gordon) No. Most people don’t care about dialogue – they just want to know what the writer thinks on the topic.

- Blogging and scholarship are about agency costs – legal scholars can define their own jobs (”agency slack”). Distrust of blogging casts a pall over blogs. Tension over role of non-scholarly posts. What’s the role of the free-form blog? Does Gordon Smith’s “cheese-blogging” undermine the medium? A: (Randy) Blogging can be very hard – e.g., Larry’s work. (Gail) The most productive scholars are also bloggers. People who like to talk about ideas do so both in law reviews and on blogs.

- Practicing lawyer: environmental & land use law: he exists in a separate universe and is uninterested in blogs. Is there relevance to him in blogs, and are bloggers interested in him? A: (Gordon) Not really. But he started blogging once he saw that it could be valuable / respected. There’s a diversity out there. He thinks people who read the Wall Street Journal should read Conglomerate. (Randy) Env. law profs do care about you, and their blogs are relevant. (Michael) He wouldn’t read this person’s blog, but does want him engaged in issues Michael is talking about.

Filed under: Berkman, Blogging, Scholarship