I am unpersuaded that legal blogging is perceived by the academy as more than a quaint and vaguely threatening pastime, something that along with submissions to law reform bodies (highlighted in my 'Opening The Door To Justice: Questions About The National Information Regime' paper for last week's Justice Connections conference) is a diversion from the zealous pursuit of DIISR points, grant applications or the gameplaying highlighted in Pierre Schlag's paper highlighted earlier this week.
Lawrence Solum commented in 'Blogging and the Transformation of Legal Scholarship' in 84 Washington Law Review (2006) 1071-1088 that -
blogging is essentially epiphenomenal — an effect and not a cause. Blogging is merely a particular medium — a currently popular form of web-based publishing. Nonetheless, the emergence of academic legal blogging is an important indicator of other trends — real causes that are driving significant transformative processes. These trends include the emergence of the short form, the obsolescence of exclusive rights, and the trend toward the disintermediation of legal scholarship.We should not ask "will blogging somehow transform legal scholarship?", as that is "the wrong question". (Solum's assessment is one with which I agree. This blog is neither an attempt to transform legal publishing (and writing) or to refashion teaching, although - as suggested by Melbourne academic Sinclair Davidson - it might be a contribution to a conversation.)
Douglas Berman's 'Scholarship In Action: The Power, Possibilities and Pitfalls of Law Professor Blogs' in the same issue of the WLR commented that -
A general debate concerning whether law blogs can be legal scholarship makes little more sense than a general debate concerning whether law articles or law books can be legal scholarship. Blogs — like articles and books — are just a medium of communication. Like other media, blogs surely can be used to advance a scholarly mission or a range of other missions.Solum suggests that -
Looking through the debate over law blogs as legal scholarship, I see a set of bigger and more important (and perhaps scarier) questions about legal scholarship and the activities of law professors. First, the blog-as-scholarship debate raises fundamental questions about what exactly legal scholarship is and why legal scholarship should be considered an essential part of a law professor’s vocation. And the key follow-up question is whether blogging should be part of that vocation.
if blogs will play a role in the transformation of legal scholarship, it will be a modest one. It seems to me that blogs can function in two ways that contribute to the emergence of the new order of short-form, open access, disintermediated legal scholarship. First, blogs themselves can serve as the medium by which short-form scholarship is written and disseminated. That is, blog posts can be legal scholarship. If anyone ever thought otherwise, they simply were not paying attention. Blogs can be legal scholarship because anything that can be written can be written as a blog post. Blogs lend themselves to very short pieces — but blog posts of over one thousand words are not uncommon and even longer pieces can be broken into several posts. Second, blogs can serve to introduce and disseminate legal scholarship. In this regard, the interaction between SSRN and the blogosphere is instructive. On Legal Theory Blog, I mention or discuss several hundred SSRN papers every year. Other blogs interact with SSRN in similar ways. A similar point can be made about the blogosphere and other forms of legal scholarship. For example, the "Legal Theory Calendar" is a feature of Legal Theory Blog. The calendar publicizes talks, workshops, and conferences that may be of interest to academics who work in legal theory. Because many workshop, colloquium, and conference Web sites have a Web page that includes links to the papers that will be presented, blogs can link both to the event and to the downloadable paper—once again creating a new channel for the dissemination of legal scholarship. Moreover, each individual legal scholar can create her own blog — which can serve as vehicle for the promotion of the scholar’s own work.In practice, in the enterprise university, scholarship is often about "points" rather than insights or "papers" per se. Reflecting the criticism by US Chief Justice John Roberts noted here, Berman comments that -
One might think that blogs are replacing or supplementing the traditional intermediaries. There is something to that thought. I am not arguing that the old intermediaries will disappear. Blogs serve as an alternative channel of information about legal scholarship — an alternative form of "peer review" that is more competitive, open, and transparent than the traditional peer review processes. Blogs are more competitive for obvious reasons. Peer-reviewed journals are expensive to produce and their boards of editors are self-perpetuating; although some fields have many competing peer-reviewed journals, the editorial boards frequently interlock. By contrast, the entry barriers to starting a blog are low, and each new blogger is free to compete for readers. Blogs are more open and transparent — except for anonymous blogs — because their assessments of legal scholarship are available to the whole world via the Internet. By contrast, most peer-reviewed journals keep the identity of reviewers secret and reveal only which articles were accepted. The reasons for acceptance and rejection (but not the identity of the reviewers) are usually communicated to the author (or rejected aspirant), but are rarely disclosed to others. Of course, competition and transparency can cut in multiple directions. Some bloggers may compete for readers by emphasizing the accessible and eschewing complex ideas that are difficult to understand. Some bloggers may respond to transparency by self-censorship — blogging only when they have "something nice" to say. But precisely because blogging is transparent, such behaviors are likely to be noticed by readers. Blogs, like journals, acquire reputations that affect readership and the ways that readers use the information they glean from blogs.
Prediction is perilous, and I have no special knowledge of the future of legal scholarship. But I do have an opinion: we are moving in the direction of open access to disintermediated short-form legal scholarship. I am much less confident about the specific forms and institutions the future will take. But I do have an opinion: blogs will play only a modest supporting role in the future of legal scholarship. Scholarship is about "papers", not "posts".
Although teaching realities in law schools still unduly reflect our trade school history, scholarship realities for law professors now unduly reflect a graduate school affinity. Formally and informally, law professors are discouraged from researching and writing on doctrinal issues. The forms and content of the most praised (and the most questioned) types of legal scholarship push law professors — especially pretenure law professors — to focus on big, abstract issues that will interest other academics, and to avoid working on small, concrete issues that concern practitioners, judges, and policymakers.He concludes -
For some current and future law professors, the modern conception of "serious legal scholarship" is a cause for celebration. For those who enjoy researching and writing about big and abstract issues, the current norms of legal scholarship justify spending a lot of professional time on favored activities. But for those interested in the development of legal doctrines and legal practice, the modern professorial equation is much different. Indeed, the emphasis on certain types of scholarship not only discourages working on doctrinal issues, but also rewards law professors for maximizing time spent with other academics and minimizing time spent with students and practitioners. In the law professor marketplace, strong student evaluations or a major bar lecture is nice, but a workshop at Chicago or a conference at Harvard is golden. Lengthy articles, especially if well placed and well cited, lead to raises; innovative teaching materials or an effective amicus brief lead to inquiries about how a traditional article is progressing.
These observations about the modern state of law teaching and legal scholarship highlight additional reasons why I see blogging as a valuable activity for law professors. As suggested before, blogging produces an extraordinary synergy and connection between teaching and scholarship (and service, too). I have used my blog in different ways in six different classes I have taught in recent years. Blog posts have provided the stimulus (and some text) for much of the "traditional" scholarship I have recently produced. Blogging has directly and indirectly played a role in a broad array of service opportunities and activities. Indeed, my most thoughtful posts often at once serve as innovative teaching materials, an effective amicus brief, and the start of a traditional article.
