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Query on Blogs and Legal Scholarship:
As regular readers know, I'm very interested in how blogs are changing legal scholarship. I've blogged about it a bunch of times, and I'm now thinking about writing a short essay about this issue for a general law review.

  It seems appropriate, given the topic, that I would start by asking blog readers to offer their own thoughts in the comment section on how blogs have changed their own access to, time with, and use of legal scholarship. It's a highly unscientific and biased way of canvassing opinion, obviously, but I just want to get some ballpark ideas on whether and how blogs have changed the ways that law professors, law students, and lawyers learn about and discuss scholarly ideas and developments in the law.

  My request, then, is for interested readers to post something in the comment section (or, if you prefer, e-mail thoughts to me at orinkerr at yahoo.com) on how blogs have changed the ways in which they find out about and discuss new works of legal scholarship, as well as how blogs have changed how or whether they read different law reviews. Have blogs, whether on their own or in combination with sites like SSRN, made a difference to you?

  Oh, and if you don't like legal scholarship or you're not a lawyer, no need to leave a comment saying so. This one is more for the legal geeks among our readers.
Wince and Nod (mail) (www):
As a non-lawyer I am now exposed to legal scholarship on a regular basis. That is a dramatic improvement, which I hope you will not underrate. It's given me a deeper appreciation for our legal system. Having the citizens like me better appreciate what you do has to be a good thing.

Yours,
Wince
7.5.2005 7:14pm
Clayton E. Cramer (mail) (www):
Wince and Nod observes: "It's given me a deeper appreciation for our legal system. Having the citizens like me better appreciate what you do has to be a good thing."

It is certainly a good thing. It may not be a good thing for lawyers, however. In spite of the widespread public contempt for lawyers, there has always been considerable respect for judges and the legal system. Rep. Pelosi's recent remarks about, "So this is almost as if God has spoken" is only the most absurd example. The more that ordinary citizens know about how judges make decisions--especially in high profile cases such as Kelo--the less respect the judges will enjoy.
7.5.2005 7:26pm
micah (mail):
I think the combination of SSRN and legal blogs has certainly altered the availability and dissemination of law review articles. In particular, Larry Solum's blog is an enormous contribution--in part because of its regularity and reliability. He's made it possible to get an initial sense of what's available and what's new in legal theory (which encompasses a wide range of subjects) via SSRN. I don't know if others have tried to mimic what he's done for other subjects. But it's incredibly useful work he's doing.

As an aside, I don't think SSRN or blogging had anything to do with the shift in guidelines for the length of law review articles. (And even less so the Greenbag.) But I do think that as blogging becomes even more sophisticated, the need and demand for some types of articles will be displaced by extensive posting.
7.5.2005 7:32pm
T. Gracchus (mail):
As a practicing lawyer, I have only a couple of practicable routes to finding informaiton about legal theory publications: (1) SSRN and (2) Blogs. (I exclude here the host of practice oriented publications.) Which is more useful to me varies over time. Blogs have the advantage of commentary on the linked articles, which is sometimes a help in assessing whether to read. SSRN provides a much wider range of article possibilities however. For books, blogs are a help.
7.5.2005 7:38pm
Casey:
The scholar-run blogs, giving near-instant commentary on decisions and events along with links to other commentators or articles, are immensely interesting, if nothing else, to law students. As a student, the commentaries are thought-provoking and far superior to law reviews in terms of accessibility and promptness, while typical law journalism written for a wide audience often lacks the insights of a blog entry written by a professor for a (mostly?) legally-educated audience.
Law blogs pique one's interest in a topic, though, and may in fact lead to more law review reading in the end.
7.5.2005 8:07pm
Toneman (mail):
A few thoughts Prof. Kerr,

As a conservative law student, I think the development of the legal blogosphere is a wonderful thing. Points of view and legal perspectives that would never be discussed in a law school classroom flourish in online discussion. For instance, have you ever met a Con Law I professor who questioned the validity of Wickard v. Filburn (Prof. Maggs aside) or the destruction of Lochner? That kind of response will quickly drive your GPA in to the ground, as I have learned. However outside the halls of academia and in the blog world, such notions are given complete credence and actually discussed. I think that more open discussion is always a welcome thing, especially in a profession that supposedly values creative thought and professional development.

In addition, legal blogs facilitate the conveyance of legal information to non-lawyers (although I don't have a sense that many of them really read these). In a profession that does so much to overcomplicate things to ensure its continued existence and overpayment, legal blogs are an opportunity to put "complex" legal principles and arguments into more legible and everyday terms.

One point on the negative side is that blogs allow for a lot of misinformation. Someone who doesn't know any better and decides not to double check whether a law review article or court opinion really says what a blog suggests it does could very easily misrepresent the piece and before you know it an article that said one thing has been transformed into something completely different by word of mouth.
7.5.2005 8:07pm
Guest:
I am a practicing attorney. Blogs have made an invaluable contribution to the better and faster dissemination of legal scholarship. I didn't read many law reviews before blogs, and I don't read many now. But the blog post can be a form of legal scholarship itself. I know this will make the professors wince, but very few people, even lawyers, read law review articles. Lots of people read magazines or newspaper columns on the law. As a lawyer who wants to be reasonably informed about the issues, I find most of these magazines and newspaper columns lacking. They are often trite and rarely provide enough information for me to reach my own decisions. I need something more in depth, something more sophisticated. But law reviews are just too in depth for me. Law reviews are also boring and not current.
Good blog posts present a level of legal analysis that far surpasses what you can get in magazines or newspapers, though not at the depth of a law review. Where else but the many "blawgs" (like VC) could I get the Kelo decision digested by the leading scholars of the day, on the very day it came out? It's like an invitation to the faculty lounge of a leading law school the day a major legal decision is reached. Sure, these discussions aren't the final authority on these decisions. Serious scholarship takes time, I know. And Law review articles may well come out 18 months later with some new insight on the case. But in my mind nearly everything I need to know comes out in blog posts in the next day or so -- much more in depth than I would have otherwise considered the case. Blogs also provide me links, where I can go to explore matters further. Though blogs have not made me read more law review articles, they have made me incredibly more informed about the current legal issues of the day. That is an important contribution to legal scholarship.
7.5.2005 8:09pm
CrimeAndFederalism (mail) (www):
I now tend to only read papers that I can download off SSRN; and that I first learned about from blogs. There's too much information for me to process. So I depend on bloggers (at least the ones whose judgement I trust) to separate the stuff worth reading from the rest.

As a blogger, I tend to at least skim every article an author e-mails me. And I try to give everyone who writes something interesting a blurb. So my readers are able to find something new.

Also, if you look at the right side of my Ashcroft [sic] v. Raich blawg ( http://federalism.typepad.com/ashcroft_v_raich/), you'll notice a section called "Scholarship." Anyone interested in crime and federalism issues could do worse than read those articles. So, in that regard, some bloggers with specialized knowledge are creating "bibliographies" for the curious. Since the links lead the reader directly to the article, readers without access to law libraries or Westlaw can still read them.
7.5.2005 8:16pm
blog fan (mail):
I think that blogs and SSRN are generally positive developments, for several of the reasons stated above, the speed of publication being chief among them. In fact, because of the speed in which they are available I think that blogs might be close to assuming the role that conferences perform in other disciplines.
I come from a science background, where I used to submit abstracts and posters for presentation at academic conferences well before I was ready to send off pieces for publication. While that happens to some extent in the legal field, my sense is that it happens far less (and I don't think that symposia generally count, as they are normally too narrowly focused). Blogs are starting allow academics and practitioners to explore half-formed thoughts, helping to crystallize arguments that may be made later in more traditional scholarly venues.
Despite this virtue, the blogsphere has drawbacks as well, the main being lack of permanence. Blogs are great, as long as you're paying attention to the right blogs at the right time to catch the relevant conversation. But if you're on vacation for a week, you have a devil of a time catching up. The VC has partially solved this problem by tracking new posts to old ones (please keep this feature — and while we're on the VC a spellchecker for comments would be nice), but even the most lengthy conversation string eventually becomes stale. Because of the ephemeral nature of the blogsphere I will always hit it for quick, cutting-edge (if a bit haphazard at times) analysis. But for scholarly purposes, where in-depth, well-reasoned, and well-supported arguments are needed, I'll still go to the law reviews.
As for SSRN, it too is a good development, especially in connection with Prof. Solum's blog. My sense is that it has essentially been a working paper series for everyone, and to the extent that working papers are helpful, SSRN is a great resource. But papers on SSRN are malleable (though I'm not sure if a paper can be revised and have the download count remain constant), and for that reason I don't think they will ever have the authoritative gleam that publication provides. But I do think that SSRN has helped speed up traditional publication, perhaps by as much as a year or two for each new idea. By putting a piece out on SSRN and allowing people to comment (or, more likely, start crafting responses of their own to print), SSRN has helped make the delay in publishing with law reviews less of a problem.
7.5.2005 8:43pm
Troy Hinrichs (mail):
Blogs have certainly expanded the scope and depth of my legal research. I teach undergrad law and criminal justice courses and the occasional Humanities course too. I use the VC, especially Orin's 4th A. stuff on technology, searches, etc. in some of my classes or to at least as a jumping off point. I used Overlawyered and Point of Law when I taught a course on Civil Liability (both to keep current, but also as assigned reading of selected posts). I've also gotten a lot from Larry Solum's blog and the Law and Society Blog.

I know there are dozens of blogs out there so I can only focus on a few (and that's not even talking of Reynolds, Althouse, et al.) And I cannot say enough about SSRN. In many ways -- and I have free access to Lexis/Nexis -- SSRN has been easier to use.

Bottom line: Blogs and SSRN have increased my access to legal research, have broadened the scope of my research interests because so much material is readily at hand, and have made law reviews more accessible.
7.5.2005 9:01pm
David Schraub (mail) (www):
I think it's the website of Green Bag that notes the relative absence of "mid-range" legal scholarship out there. That is, you've got whatever sum up the AP runs of certain media-worthy court cases, and then you've got 60 pages tomes in the Harvard Law Review--and little to nothing in between.

Blogs have helped fill that gap. They provide a way to discuss issues in a less formal and more accessible format than given law reviews, while not sacrificing the institutional expertise and nuance of professional quality work.

Moreover, blogs are far more flexible in their areas of publication than law reviews. While formal legal scholarship must be, for all intents, "novel," legal blogging is bound by no such constraints. This means that I can learn the background law and rules behind the news without having to research and plough through the path-breaking 1956 article or case that set the principle. Far easier for me, anyway.

Finally, since blogs can post on anything, it provides a badly needed link between some of academia's brightest minds and the "real world." While legal academia is not entirely divorced from the here and now--after all, new legal issues and problems are always presenting themselves, the more mundane back and forth of political and even legal discourse is already old hat by the time it reaches the ears of those outside the ivory tower. Blogging let's their insights reach ours--I don't care if Eugene Volokh isn't saying anything new about the latest hate speech law, I'm interested to hear what he's saying at all. Tenure Review committees (as well as whomever serves as the rough equivilent for tenured faculty) and I have different desires, blogging keeps both of us happy.
7.5.2005 9:10pm
Cityduck (mail):
As a practicing attorney, it is very rare that I pay much attention to the law journals. The reasons are fourfold:

(1) Law journal articles tend to largely concern issues that are of great interest to scholars (and even the general public) -- first amendment issues being a notable example -- but which are largely irrelevant to those of us practicing. Thus, a large portion of law journal articles just aren't of any practical interest.

(2) A large portion of law journal articles are student publications. Moreover, they are also edited by students. Consequently, these articles may never undergo review by anyone with any expertise on the subject of the article. This doesn't mean they are bad, many can be quite good, but they are inherently untrustworthy because the author and editors lacks experience. By the same token ...

(3) There is no guarantee that articles by law profs reflect expertise. Let's be honest: Law review articles aren't peer reviewed, instead they are edited by students, and the topic is what a prof wants to write about -- not necessarily a topic with which the prof has any real experience. The authorship of a law review article is not evidence of expertise. While, again, there are some great law review articles, there is no reason to believe that just because someone writes a law review article they have expertise or an insight to provide. Too many law review articles appear to be written by people with no practical experience, making them largely irrelevant to practitioners.

(4) Finally, law review articles are too slow to get printed. I don't want analysis of last year's case, I want analysis of yesterday's case.

In contrast, with the Blogs, I can get insights from the practioners on the frontlines in the areas in which I practice. Blogging puts publishing into the hands of practitioners who just don't have the time or inclination to publish in law journals, but who recognize the advertising value of the blog. In many cases I can get the instant perspectives of both the plaintiffs' camp and the defense camp on newly issued significant cases. This is invaluable. Previously, the only source for this kind of information were legal columns like, in California, the Daily Journal Practitioner columns. But, those columns are increasing irrelevant to me as even they are often a month out of date.

Thus, I view the blogs as fundamental attack upon the traditional law journal structure. Whereas law journals largely are written by the academy for academics (and to a lesser extent courts and lawyers looking to spice up their footnotes), blogs empower practitioners to reach other practitioners in their shared field of expertise. The conventional wisdom and creative evaluations about new cases is formed in the blogsphere, and then filtered out to the courts as practitioners use that information in their daily practice. In my view, blogs are therefore potentially much more powerful to shape the law than law journals.
7.5.2005 9:26pm
Patrick McKenzie (mail):
I think blogs expose a lot of us non-legal professionals to legal scholarship in a way that didn't really happen before. I used to do competitive debate which frequently touched upon legal concepts, and you have the devil's own time getting deep legal argumentation in publicly available sources (as opposed to, say, the stacks of journals which are available if you've got a Lexis ID assigned to your use or a major research library with a law department next door). Blogs (and, relatedly, Internet posting of opinions) greatly lowers the barrier to entry into this fascinating, sometimes maddening field.

Information exchange also goes the other way. I'm a computer guy, most of the time. I don't think its a very controversial proposition to say that the average level of computer expertise inside the legal academy is fairly low -- I've seen people speak of downloading something from a hard drive to a floppy, and some of the discussions of the difference between client-server and peer-to-peer architectures I've seen are riddled with technical errors (such as the fact that almost all networks contain both elements, client-server because the protocol layer of the Internet is peer-to-peer and peer-to-peer because peer discovery is almost always handled in a client-server fashion). Its probably nice for law professors to be able to put up a law review about, say, forensic examinations of a computer hard drive violating the fourth amendment and ask "Hey, does my description here conform to reality?" (I remember that specific discussion happening on this site.)
7.5.2005 9:48pm
Henry Schaffer (mail):
We've had informal publications for a long time, e.g., in order of appearance: mailing lists, usenet news.groups and (threaded) discussion fora. Blogging is one of the newer methods, and it has caught on in a major way and incorporated many/most of the benefits of the previous methods.

Having been a computer user for a long time, I have used all of the above methods and still use them now and then, in addition to the print literature. I've found blogs to be the most convenient in terms of organization and general accessibility to current topics.

I've not tried to use them for serious research into a topic.
7.5.2005 10:56pm
WB:
I'm a law student in transition into the so-called legal world.

I think that blogs are an excellent supplement/complement to legal scholarship. They do things like (1) pointing lots of people to particularly good forthcoming articles (like Solum and Bainbridge do quite often); (2) allow writers with a decent-sized readership to bounce ideas off of a bunch of people; and (3) put pressure on the law reviews to drop a lot of bad habits that they've developed by virtue of having been the only game in town for decades (such as long delays in publication, needlessly restrictive copyright policies, etc. -- I suppose the same is true of SSRN on this point) Blogs also provide the occasional critique of badly-written articles. They also provide forums for immediate discussions of important articles like Sander's piece on affirmative action.


On the other hand, the best law review articles contain thoughts and insights that don't need to be spread as soon as possible like "hot news." Immediate reactions to a Supreme Court case may be more valuable the day after than several months later when published as case notes, but the same cannot be said of law review articles.

Also, when people sit down to write (good) law review articles, they take care to provide some depth of thought and to avoid rehashing things that have been said before. Law review articles are valuable as the result of weeks of thought and analysis, while most blog posts are either knee-jerk rehashings of the same arguments, or words reflecting only a few hours of thought.

I don't think that Garry Trudeau and Brian Leiter are spot-on in their critiques of the level of depth on blogs, but I think that they're on to something and that the "blogosphere" has an unnecessarily high opinion of itself (particularly in Orin's posts). I value some of the insights on this blog, but what I value the most on blogs is the links to news articles, interesting court opinions, mainstream media opinion pieces, etc., in short, things with a little more substance and depth. I also value the way some of the better bloggers pass on helpful research aids, like free repositories of court opinions and the like.

To me, lawprof blogs are valuable because profs still have to write real articles elsewhere. If scholarship were replaced with blogs, our "learned profession" would degenerate into reactionary fluff along the lines of the NY Times op-ed pages.
7.5.2005 11:00pm
Randy (mail) (www):
WB wrote:
To me, lawprof blogs are valuable because profs still have to write real articles elsewhere. If scholarship were replaced with blogs, our "learned profession" would degenerate into reactionary fluff along the lines of the NY Times op-ed pages.
I agree with this whole-heartedly. I know what other law professors sound like to me when they spout off on things outside their area of expertise that I know something about from my scholarship. I don't want to sound like them. The trick is presenting scholarly knowledge in an engaging way that does not distort the underlying insight. And the hardest part is resisting the temptation to venture into territory about which one knows too little. As Clint Eastwood said in one of the Dirty Harry films, "A man's got to know his limitations." Without the underlying scholarship, blogging by a professor is just the opinion of a smart (or at least clever) person. BTW, for those who this seems to annoy, this is why some of us link to our scholarship or (horrors) cite to our books in which we attempt to develop the ideas we are blogging avout in a more sophisticated way, addressing more of the complexity of a problem or theory than is possible in a blog.
7.5.2005 11:24pm
CharleyCarp (mail):
Practicing lawyer as well.

Law reviews are useful as resume entries for law students, and good practice in blue-booking and showing attention to detail. Fine skills, and better than drinking or playing Frisbee on the lawn. They're useful for profs looking for tenure. OK, I'm in favor of tenure, and I suppose that some (most?) profs are improved by the process of writing something. I've quoted them in briefs a few times, but it's never anything but a makeweight, either in my brief or in an opinion.

Blogs strike me as little different from water cooler conversation. Cocktail parties. Not useless, but most real law isn't policy- so much as fact-driven. And blogs are useless when you can't discuss the facts -- either because they are too complicated to get into, or, more likely, are confidential.

So in terms of actual utility, I'd rate both quite low. And maybe give law reviews the edge, because they're going to last longer.

I mean really now, how many lawyers have needed or used any of the discussions of Kelo over the past few days in their practice? I know I haven't. I've enjoyed talking about it, to be sure, but the usefulness of this is much less than the sound and fury . . .
7.6.2005 1:28am
Scott Moss (mail) (www):
I'm coming to see good blog postings and listserv discussions as fantastic teaching tools.

For example: I'm putting together a syllabus for my law &economics class, and I'm doing one class on takings. I can't assign multiple law review articles for one class session of my twice-a-week three-credit class -- but I can assign one law review article plus three blog postings.

Similarly, last fall I was able to show my employment discrimination class a neat debate on a topic we were covering -- by printing out a string of emails on a listserv of employment lawyers.

It's the economics of syllabus compilation: for any given topic, I have to maximize the substance of the readings while minimizing the number of pages assigned. Good blog or listserv posts/discussions can be a great, content-dense supplement to the basic readings on topic.
7.6.2005 3:14am
Brad (mail):
As a relatively young lawyer, I've almost come to expect blawgs and other web-related legal resources as a matter of course. I don't believe I've looked at more than a handful of law review articles since passing the bar. However, I've been able to keep up to date on major law-related happenings via blawgs

Probably the best real-world example of how Blawgs have affected my practice is when the Supreme Court decided Blakely v. Washington last year. Much of my practice involves criminal law and sentencing, so Doug Berman's Sentencing Law &Policy website (along with other Blawgs) let me know about Blakely as soon as possible and has kept me abreast of the major Blakely-related happenings.

Blawgs are, of course, different than law review articles and I don't think that they will replace law reviews as vehicles of an in-depth look at a legal issue. But for fast, substantive analysis of novel legal issues, they can't be beat.
7.6.2005 9:36am
John P. (mail):
I'm another practicing lawyer.

In my day-to-day practice, I use law review articles (accessed via LEXIS and Hein on-line for older stuff) mainly for doctrinal background and for exhaustive reviews of the existing authorities on narrow topics. I almost never read the prescriptive parts of law review articles. I have had great luck finding on-point cases in this way, when others in my office have failed to find anything. Plus, a law school's reputation gives a (naturally very rough) guide to how reliable the articles in its law review are likely to be.

I suppose blawgs have had very little direct effect on my day-to-day practice, although I can't help believing that reading them makes me a better lawyer. I read them mainly for entertainment & inspiration, and to improve my breadth as a T-shaped professional. VC and Prof. Solum's blog (and the articles they've linked to) have been indispensable in this regard. Also indispensable have been the ecomonics blogs (and other free on-line literature) that the faculty at GMU put out.

The work of such high-end bloggers is definitely appreciated. I think it could be best described as condescension, in the 18th-century, complimentary sense that the word has lost: being able to converse intelligibly with folks who, for whatever reason, are not at your level.
7.6.2005 10:39am
Bob (mail):
"[I]f you don't like legal scholarship or you're not a lawyer, no need to leave a comment saying so."

I am a lawyer, and it's not that I don't like legal scholarship. It's that legal scholarship is something I never deal with, or even think about. In the world in which I operate (I am an insurance-coverage lawyer, which means I spend a lot of time doing legal research), legal scholarship simply plays no part. I can't imagine turning to a law review, for example, to resolve, or even cast light on, any issue I might be examining. Why would I? For my purposes -- in general, advising an insurance company as to how it should respond to a claim -- I need to determine what the law IS; why the law came to be that way, or what the law should be, or how the law might evolve in the future, is of absolutely no concern. Nor should it be, since those questions have no bearing on the law in the world of legal practice. Well, perhaps not NO bearing, but not enough bearing to warrant my spending my time (or my client's money) in trying to tease out answers that are ephemeral at best.
7.6.2005 12:28pm
Doug Sundseth (mail):
As another non-lawyer, I've found that legal blogs have dramatically increased my access to legal scholarship. Since the foundation of a successful representative government is an informed population, I think this is a great public good.

While there have been occasions where I've been dismayed by the results obtained through the legal system, reading court opinions and the comments of knowledgeable scholars has generally increased my respect for at least the better practitioners of law at all levels. This is not a result I expected.

HTH.
7.6.2005 12:54pm
Ulrich Bonnell Phillips:
Blogs add the realism that law school omits. However, I find some blogs to shrill. Some of which have been linked in posts on this blog.

Toneman wrote:

For instance, have you ever met a Con Law I professor who questioned the validity of Wickard v. Filburn (Prof. Maggs aside) or the destruction of Lochner? That kind of response will quickly drive your GPA in to the ground, as I have learned.

Toneman, Do you not have blind grading at your school? How can comments in class sink you? Blind grading takes care of that. Still, such comments may result in an unpleasant reaction from the professor.
7.8.2005 4:11pm