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January 1, 2007

Is law blogging already passe?

Peter Spiro in this post at Opinio Juris thoughtfully examines whether "the blogging phenomenon may have peaked" in the legal arena, and a terrific set of commentors have enriched the inquiry.  I discuss my reactions more fully here at Law School Innovation, but I wanted to give SL&P readers a chance in the comments to express whether they think law blogs are coming or going.

2006_network_growthUPDATE:  Anyone who wants evidence that the death of law professors may be greatly exaggerated should check out this post at the Law Librarian Blog, which documents the growth and popularity of the Law Professor Blogs Network.  The chart, which you can see better at LLB, provides details on the network's expansion.

January 1, 2007 at 10:00 AM | Permalink


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There are three kinds of professor law blogs.

1) There are blogs like yours, where the professor tries to keep up with the law in the way that practitioners do. I.e. up to the minute. They are tuned in to what people are saying about all the hot issues in a given field, and attempt to offer additional insight.

2) There are blogs like many professor blogs out there that lag weeks, if not months behind. Eventually these guys will realize that practitioners really DO know what they are doing, and providing a case squib – or, more often, a block quote -- from a month or so ago (with a link to a Lexis digest) is next to useless.

3) Finally there are so blogs from professors which are just thinly veiled political screeds. They don’t really care to keep up with the literature, because they are not playing to an audience of practicing lawyers, but hope to get political appointments. These probably will die out now that we have a divided government again, and looking like an unemployed anti-intellectual partisan hack makes you look stupid.

Happy New Year.

Posted by: S.cotus | Jan 1, 2007 10:40:46 AM

looking like an unemployed anti-intellectual partisan hack makes you look stupid

as in Bainbridge, Ribstein, and Truth on the Market?

Posted by: Moe Levine | Jan 1, 2007 11:14:52 AM

Law blogs are the best thing that's happened to this country since ratification of the Bill of Rights, and that is hardly an exaggeration, imho. Since we are a nation of laws over and above any specific religion or philosophy, law is the foundation of this country, and trying to understand it can be daunting to say the least. Rather than becoming passe, if only the bloggers would call for a year of legal reading and practical logic as a required course in the senior year of high school. More lay legal readers, not less, would be good for the country.

Did some lawyers/scholars just gasp and shake their heads "No"? Anything but that!

But, seriously, shouldn't every high school graduate be able to read a SCOTUS opinion well without relying on the media's interpretation?

Posted by: George | Jan 1, 2007 1:57:58 PM


People in my high school could read Supreme Court opinions. In fact, they did. That is why they are all lawyers now. However, someone else has to sweep the streets, and they went to high schools which did not even encourage people do to read them. In some high schools, it turns out, not everyone goes to college!

I find it strange that people who are otherwise educated, but not in the law, think that it is acceptable to rely on media reports of what the Supremes do.

As to your suggestion about “logic,” while I generally support it, most references by lawyers and judges to the need of others to use “logic” has, without exception been a political plea, or rather a generalize gripe that they don’t like the lawyers that practice before them. For example, the dissent in the 3d Circuit's opinion in FAIR v. Rumsfeld. Does anyone really see that as a great treatise on logic, or rather just the rhetorical use of a treatise?

And, as Holmes pointed out, the path of the law is not logic, but experience. Sure, it is nice to use “logic” as an aid to interpreting texts or even facts, but when it comes down to it, the constitution, and all of our laws are the product of political decisions informed by experience. Lawyers can, of course, fit their clients’ interests into those political positions using whatever tools they want.

Finally, I need to come out and say that I think it is unacceptbale for ANY blogger -- prof or pract -- to cite to databases that require a user fee. There are enough free sources of underlying decisions.

Posted by: S.cotus | Jan 1, 2007 2:28:46 PM

I agree with S.cotus in that we should not link to pay services. We should cite them, but then link to the folks over at Cornell or somplace like that. If you'd like these places to continue to offer free stuff, send them a donation too so they can stay free.

Posted by: That Lawyer Dude | Jan 1, 2007 5:04:50 PM

I have to agree with S.cotus in his first comment regarding law blogs. Prof. Berman references a number of other blogs, and if one goes to other blogs there are even more blogs. But, I have found, as a practicing attorney, the only truly valuable blogs are the ones similar to Prof. Berman's.

Posted by: Bernie Kleinman | Jan 1, 2007 7:44:17 PM

Here are some examples:
2d Circ. Blog [where I practice]: //circuit2.blogspot.com/
2d Cir. Sentencing Blog:
Appellate Law & Practice:
Fed. Civil Practice:
S. Ct Blog:
Sex Crimes Blog:
Split Circuits Blog:

All of these concentrate on very recent developments, and avoid political agendas. They also avoid excessive refernece to newspapers and new stories.
If anyone can recommend any others, please forward them.

Posted by: Bernie Kleinman | Jan 1, 2007 7:46:20 PM

Decision of the Day: http://appellatedecisions.blogspot.com/
California Appellate Report: http://calapp.blogspot.com/

9th Circuit Blog: http://circuit9.blogspot.com/
First Circuit Fed. Def. Blog: http://circuit1.blogspot.com/
(I realize that people might say the FD blogs have a political agenda, but that is probably just because they happen to represent people – poor criminals – without an adequate pre-transaction lobbying budget.)

Posted by: S.cotus | Jan 1, 2007 7:56:37 PM

S.cotus, thanks for the appellate decision of the day. Are you aware of any blogs dedicated to habeas proceedings or to Bivens actions? As you know, circuit specific blogs are really only of interest to those in that circuit, hence my listing of 2d cir. blogs.

Posted by: Bernie Kleinman | Jan 1, 2007 9:39:06 PM

I don’t think there is any seriously dealing with 1983/Bivens every day. I seem to recall begging someone to start an AEDPA blog… Then Googled, and I realized that it was Professor Berman that wanted it. That is quite pathetic of me.

Anyway, on 1/7/06, I noted a blog called Habeas Corpus Review. http://www.habeascorpusreview.blogspot.com/ Unfortunately, it petered out soon after that.

Posted by: S.cotus | Jan 1, 2007 11:10:40 PM

Golly, don't make the blawgs go away!

As for relying on the media for legal information--as someone who deals with hundreds of reporters a year, trust me, they are not necessarily all that educated themselves.

Those of us who deal with reporters try to educate them but can only do so much within their teensy deadlines. Our high schools (heck, even law schools, if we're talking about court-related information) could help out a bit by providing some pre-emptive education!

Posted by: Anne | Jan 2, 2007 1:18:20 PM

Anne, I think everyone agrees that reporters are really out of their league when they deal with legal issues. Usually they print the views of the losers. The result is that whatever reporters are given by law firms or government entities has to be packaged and de-nuanced for the reporters.

The saddest thing is watching a lawyer that should know better, like Toobin, go into journalism and turn everything into a pithy platitude.

Posted by: S.cotus | Jan 2, 2007 3:07:50 PM

S.cotus: I checked out your habeas reference. Last entry was a year ago. And, I have been unable to locate any blogs direcxted towards 1983/Bivens actions. Are you, or anyone [including you Prof. Berman] aware of any blogs dealing with prisoner rights? [Yes, "federalist", prisoners do have some rights!] PLRA, SAMs, SHU related matters, etc.??

Posted by: Bernie Kleinman | Jan 2, 2007 10:39:58 PM

"I think everyone agrees that reporters are really out of their league when they deal with legal issues."

Speaking as someone with a political background, I would add that most lawyers are out of their league when they deal with the media.

With few exceptions, my general rule is never let a lawyer draft a press release or legislation - their ham-handed inexperience damns them on the first, and their hubris, combined with an odd naivete about politics (it ain't the courthouse), typically ruins their efforts on the latter. There are exceptions to both assertions, but those are good rules of thumb.

As to the topic at hand, I thought it was silly that Spiro's main evidence was that some blogs have gone under! A good blog requires two things: a good niche idea and a prolific writer. Many blogs with one but not the other fail, sure, but there are plenty of good niche ideas left out there and lots of room for more bloggers. Not everyone can write well or quickly. Blogging isn't for everyone.

I also think that, because it's often unpaid, blogging may be something folks do for a while then move on, like Ken Lammers recently, e.g.. Nothing wrong with that, either - who hasn't taken up a hobby they tried for a while and moved on?

Blogger is just a word for "writer," and in the modern era there's a constant need for new web content that I think will ultimately create a labor market that draws more deeply from that talent pool. If law schools and academicians don't recognize the value of blogging, they'll simply become less relevant over time. Their choice.

Posted by: Gritsforbreakfast | Jan 3, 2007 7:52:35 AM

Grits, While your advice is probably good, it also means that press releases will be written by people that don’t understand the law, and the public will get a dumb-down version of the legal debate. Sure, it is probably all the can handle, but it means that the public discourse will embark on a race to the bottom.

Posted by: S.cotus | Jan 3, 2007 11:51:55 AM

Maybe S.cotus, but i've been at this a long time and don't think that's necessarily the case. A good reporter (or PR person) is a conduit for making wonks' ideas understandable to the public. In the legal field, where knowledge of a handful of obscure phrases and latin terms is basically all that separates lawyers from laymen (they sure don't teach much about lawyering in law school, and anybody can read the statutes and case law), it's not hard to translate legalese into prose the public understands - indeed, that's one of the projects I've routinely undertaken at Grits (with, to be sure, greater and lesser success).

Lawyers goals' in the courtroom are different from the goals in media work or in the political arena, and the skill sets aren't typically transferrable. You can certainly blame the reporter for not understanding some complex legal nuance, but always keep in mind that a) that also represents a failure by the lawyer to explain him or herself in a clear way (if the reporter won't understand, how would a jury?),and b) the lawyer's focus on such nuance often misses the forest for the trees, and the reporter may be right to ignore the minutae you're pushing to look at the big picture.

One of my great hopes for law blogging is that lawyers will learn to better communicate with average people and participate in the public debates on these topics that affect lots more people than just attorneys.

BTW, let me apologize in advance - I don't mean to be confrontational. But I run up against these exact issues again and again, and they're VERY seldom openly discussed. Thanks to Doug for providing the forum.

Posted by: Gritsforbreakfast | Jan 3, 2007 6:03:48 PM

Grits, I don’t think that you are being confrontational, and I respect your experience.

Unless your name is judge Selya, however, the use of Latin by lawyers is fairly limited. Indeed, the only Latin terms we use now are terms of art that take on a meaning far greater than their literal meaning. For instance if I say “habeas corpus” I am not referring to the act of “producing the body” or even to an ancient writ. I am referring to a body of law regarding either 1) collateral attacks of convictions, that essentially argue that the trial or sentencing was fundamentally flawed; or 2) a legal procedure to challenge the absence of other, valid legal procedures. So, “habeas” just starts the discussion, and the rest flows in “normal” English. I guess a similar analogy is in the word “o'dourves,” (which I guess are what we have instead of grits for breakfast) not too many people think about what it might really mean in French, but anyone with any semblance of culinary expertise can debate what is properly included in that category.

While obscure phrases might be easy to translate, it is hard to encapsulate complex legal events into soundbites that the public can understand. You simply cannot put Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, FAIR v. Rumsfeld, or even Marbury v. Madison into some soundbite for the public. When you do, you end up appealing to some simplistic political goal, which is no better than any other simplistic political goal.

Lawyers that argue in front of juries have a captive audience. They can spent a long time laying out complex facts and the merits of the case. I do not think that juries are less intelligent than other people, but like judges that are required to listen to arguments, they are required to put the time and attention in to understanding what is going on.

Many law bloggers, unfortunately, have the wrong motives in communicating with “average” people. They aim to convince them to follow them politically, so they dumb down and oversimplify their rhetoric. They do not aim to educate on the nuance of the subject, which is what I think lawyers should always do with each other.

Posted by: S.cotus | Jan 4, 2007 10:15:45 AM

Wow. This certainly evolved! I was talking about having to explain something you'd think a high school graduate would know--such as the basic differences between federal and state government--to reporters at top papers who get paid a whole lot more than I do!

It's interesting you all bring up the plain language debate. My personal take on that is that it's not the Latin that throws people, but the seemingly ordinary words--discovery, award, dependency, etc.--that have legal definitions not apparent to the average reporter (or anyone else).

I agree to a point that you should never have a lawyer write a press release, at least not in legalese. But I know several people who have been reporters then lawyers (or vice versa), so it's not like they (either one) can't be taught!

Posted by: Anne | Feb 27, 2007 3:51:43 PM

There are some incredible law bloggers. Law blogger Glenn Greenwald has darted to the top of many lists, while he's a little snarky when he discusses the law news of the day he still has some solid analysis of the legal realities facing Americans today. Balkin is also an incredible law news blogger. Even some legal media faces are getting into the act with Turley blogging about the law news of the day. Then there are eclectic sites that just do unusual compilations of law news that filter out some of the more noteworthy law news over the months.

Posted by: Law Blog? | Apr 12, 2008 8:43:48 PM

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