As librarians, most of us are already aware of the impact blogs are having in areas such as current awareness and traditional news publishing. Most of us are also aware that numerous law professors read, run, and post to legal blogs (blawgs).
As academic law librarians, we might well wonder: What is the impact of legal blogs on legal scholarship? That was the subject of a conference sponsored by the Berkman Center for Internet & Society on April 27 & 28, 2006: Bloggership: How Blogs are Transforming Legal Scholarship. Presenters included prominent blawgers such as Eugene Volokh,1 Orin Kerr,2 and Douglas Berman,3 as well as non-blawger Kate Litvak.4 In this article I will summarize a few of the key themes of the symposium.
Several of the symposium papers assert that blogging helps legal scholars develop their ideas before they turn them into more formal types of scholarship (e.g., law review articles). D. Gordon Smith5 observes that “the [scholarly] process is on display when I publish multiple blog posts on the same topic over a long period of time. I ‘take the idea and pick it up, spin it around, look at it from all sorts of angles, and then put it down again.’”6 He also notes that blogging is like a “ ‘virtual faculty lounge,’ where bloggers try out new ideas and get feedback from commenters or other bloggers.”7 Douglas Berman adds that “Blog posts have provided the stimulus (and some text) for much of the ‘traditional’ scholarship I have recently produced.”8 Similarly, Christine Hurt9 and Tung Yin10 point out that “a blog post may serve as a rough draft of an abstract for a future article. There is the added benefit that a public posting may inspire the blogger to articulate the idea with a greater degree of precision than the blogger might in a document for personal use ….”11
Another commonly cited benefit is exposure of one’s ideas to a wider audience. “My blog gets about 20,000 unique visitors a day; I don’t know how many people read my articles, but I’m pretty sure it’s very far from 20,000,” notes Eugene Volokh.12 Berman adds:
My blog work facilitates the exposure and scrutiny of my legal ideas by a national and international readership that includes not only judges, policymakers and practitioners at all levels in many jurisdictions, but also academics from other disciplines, journalists of all stripes, many non-lawyers interested in criminal justice issues, and also, perhaps most valuable, the real people whose lives are most impacted by the policies and doctrines that I discuss.13
Such exposure is especially beneficial for junior scholars:
The goal of a junior professor who wishes to advance in academia is to be recognized nationally as a capable scholar. Pretenured professors at highly-ranked institutions have a built-in infrastructure that allows them to build their reputations. … However, for junior law professors at lower-tiered schools without access to this infrastructure, blogging may create opportunities for just this kind of networking.14
Wide exposure can even lead to opportunities for more traditional scholarship, such as op-ed pieces for newspapers,15 or interdisciplinary collaboration with scholars outside of law.16
Relatedly, some symposium participants observe that blogging has more potential than traditional publishing to stir up meaningful conversation about legal ideas. According to Volokh,
[W]hen you blog you actually create, and interact with, a community …. My op-eds in the Wall Street Journal … would occasionally lead to a couple of e-mails from readers. Before I had comments, blog posts would sometimes get me dozens of messages, some hostile but many friendly, thoughtful, and even flattering. Now that I’ve enabled comments, I get fewer e-mails, but I still get messages from people, sometimes arguing with me, sometimes complimenting me, often pointing me to interesting other stories to cover.17
Berman observes that “Through linking, blogs … facilitate a more direct and immediate engagement with other bloggers and other persons setting forth ideas on-line. … [P]rofound and unexpected and unique scholarly ideas often can emerge from informal exchanges. Blogs are far more likely to foster … the development and insights of these exchanges.”18
Other benefits of blogging include its ability to provide a forum for “smaller ideas”19 or “‘micro-discoveries’: original thinking that’s hardly bigthink or even middlethink, but that’s still a valuable contribution;”20 its timeliness (“my guess is that blog posts will become the first draft of commentary on new legal developments”21); its elimination of the need for a publishing intermediary, which acts as a barrier to lesser known scholars and adds considerable delay to the publishing process;22 and the fact that it is a form of open access publishing.23 Some blawgers also see blogging as a useful research tool: “If you want to find examples of a certain argument or a certain phenomenon, for instance, a LEXIS query might not get you far. But if you have thousands of readers … some of them might be willing to draw on their own memories, or even their own research skills, to help you.”24
The most commonly cited drawback of blogging for legal scholarship is time taken away from more traditional scholarly activities. Volokh writes, “Sometimes, when I’m in the middle of a heavy blogging spurt, I ask myself: Shouldn’t I be spending this time writing law review articles instead?”25 According to Berman, blogging can be “a time suck and addiction. … I find the medium so engaging and satisfying that many days I am annoyed that I have other things I have to do.”26 This danger is greatest for “pretenured”27 bloggers: “Particularly in an environment where even lower ranked schools are putting substantial pressure on junior scholars to publish, any activity that systematically takes time away from scholarship may be dangerous,” write Hurt and Yin.28
Kerr believes that the use of reverse chronological order (“RCO”) is a disadvantage for the advancement of scholarly ideas: RCO “focus[es] on the latest instead of the best .… [O]nce an item is posted, and one or more posts follow it, the post rolls off the bottom and is mostly forgotten.”29
The brevity of blog posts is sometimes also seen as a drawback. D. Gordon Smith writes “Blog posts typically are much shorter than traditional works of legal scholarship, and, as a result, blogging does not lend itself to any form of scholarly expression that requires extended analysis.”30
Furthermore, some of the advantages of blogging can also be seen as disadvantages. Timeliness is one example: “Blog posts are created in Internet time, and bloggers must throw out their ideas with only minutes or possibly hours of reflection and review.”31 Wide exposure is another example; as wonderful as it can be to have a wide audience for one’s best work, it can be truly awful to have such a wide audience when one posts a flawed argument or incorrect statement of fact.32 And the lack of a publishing intermediary can be a disadvantage in that it eliminates a source of quality control.33
While most, if not all, of the symposium participants see blogging as a positive development for legal scholarship, the majority of those who directly addressed the issue seem to think that blogging is not truly transformative.
Orin Kerr, himself a highly successful blawger, points out that “Five years ago, a symposium on the latest technology impacting legal academia would have trumpeted the transformative technology known as listservs. … Today, most listservs are quiet ….”34
The non-blawger Kate Litvak opines that other recent developments have had much greater impact on legal scholarship. Among those other developments she mentions the development of archives of working papers such as SSRN; improvements in communications technology, which have made research faster and more thorough; the internationalization of legal scholarship; the movement toward interdisciplinary training and collaboration; and the movement toward empirical research.35
Solum believes that blogging supports three pre-existing trends in legal scholarship: “the transition from the long form to the short form, the transition from exclusive rights to open access, and the transition from mediation to disintermediation.”36 He concludes that “Blogs are symptoms of larger forces at work. Their importance, if any, is as the medium (or technology) through which the incentives and institutional forces … are doing their work.”37
1 UCLA, The Volokh Conspiracy (http://volokh.com/).
2 GWU, OrinKerr.com (http://orinkerr.com/).
3 Ohio State, Sentencing Law and Policy (http://sentencing.typepad.com/).
4 University of Texas at Austin.
5 UW-Madison, Conglomerate (http://www.theconglomerate.org/).
6 D. Gordon Smith, Bit by Bit: A Case Study of Bloggership, U. Wis. Legal Stud. Res. Paper No. 1017, at 4, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=898178, quoting Orin S. Kerr, Blogs and the Legal Academy, GWU Law School Pub. L. Res. Paper No. 203, at 6, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896994.
7 Id. at 4-5, quoting Larry E. Ribstein, Do Blogs “Have Nothing to Do with Legal Scholarship”? (Feb. 27, 2006), available at http://busmovie.typepad.com/ideoblog/2006/02/do_blogs_have_n.html.
8 Douglas A. Berman, Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs, Ohio St. Pub. L. Working Paper No. 65, at 21, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=898174.
9 Marquette, Illinois; Conglomerate (http://www.theconglomerate.org/).
10 Iowa, The Yin Blog (http://yin.typepad.com/).
11 Christine Hurt and Tung Yin, Blogging While Untenured and Other Extreme Sports, at 15, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=898046.
12 Eugene Volokh, Scholarship, Blogging, and Trade-Offs: On Discovering, Disseminating, and Doing [Very early draft], UCLA School of Law Res. Paper No. 06-17, at 1, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=898172.
13 Berman, supra n. 8, at 9.
14 Hurt and Yin, supra n. 11, at 13.
15 Id.
16 Berman, supra n. 8, at 12.
17 Volokh, supra n. 12, at 3.
18 Berman, supra n. 8, at 9.
19 Berman, supra n. 8, at 8.
20 Volokh, supra n. 12, at 7.
21 Orin S. Kerr, Blogs and the Legal Academy, GWU Law School Pub. L. Res. Paper No. 203, at 7, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896994.
22 Lawrence B. Solum, Blogging and the Transformation of Legal Scholarship, Ill. Pub. L. and Legal Theory Res. Papers Series No. 06-08, at 8, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=898168; Kerr, supra n. 21, at 9.
23 Solum, supra n. 22, at 14-15.
24 Volokh, supra n. 12, at 5.
25 Id. at 1.
26 Berman, supra n. 8, at 14.
27 Hurt and Yin, supra n. 11, at 1.
28 Id. at 4.
29 Kerr, supra n. 21, at 6.
30 Smith, supra n. 6, at 7.
31 Hurt and Yin, supra n. 11, at 11.
32 Id.; Kate Litvak, Blog as a Bugged Water Cooler, at 5-6, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=898186.
33 Kerr, supra n. 21, at 9; Solum, supra n. 22, at 20.
34 Kerr, supra n. 21, at 11.
35 Litvak, supra n. 32, at 1-4.
36 Solum, supra n. 22, at 4.
37 Id. at 23.