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December 2, 2009

Orin Kerr gamely (and finally) admits that blogs can be legal scholarship

Way back in 2006, I had the joy of participating in an exciting conference at Harvard Law School entitled "Bloggership: How Blogs Are Transforming Legal Scholarship."  The papers for the conference, which were all absolutely fascinating, can still be accessed here.  In my contribution, which was titled "Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs," I made the argument that blogs can be a new and useful form of legal scholarship.  But Orin Kerr was part of a group of "traditionalists" who contended that, though valuable for other purposes, blogs were not (and should not be seen as) a form of legal scholarship.

I remind everyone of this history of blogs as scholarship debate as a prelude to linking to Orin's new post here titled "Rethinking Blogging-as-Scholarship." Here is part of Orin's game admission of a (partial?) change of heart:

Fast forward to the present, and I now think my old self was wrong.  Or at least a bit off.  I now think blogging actually does provide an effective way to present new scholarly ideas in many cases.  In this post, I want to explain why my view has changed.

The main reason my view has changed is that I think the legal academic culture has changed.  In the past five years, legal blogs have become an acknowledged and accepted part of the world of legal scholarship.  Exactly why is open to debate. It might be because more law professors are blogging. It might be because our experience has been that what profs say on their blogs is usually the same as what they say in their articles.  Perhaps the new online journal supplements have blurred the traditional paper-vs-on-line distinction.  Whatever the reason, there seems to be more of a convergence between scholarly blogging and “traditional” law review articles today than existed 4 or 5 years ago.  That convergence encourages more scholarly blogging and recognizes its value.

Citations in the Westlaw JLR database are an imperfect metric, but they tend to confirm the change.  Consider the number of times that the phrase “Volokh Conspiracy” and/or “volokh.com” appeared in the database.  (Usually, although not always, these phrases reflect a citation to a particular post appearing in a law journal.)   In 2005, the phrases appeared 24 times in the JLR database. The year 2009 isn’t over yet, with roughly 20–30% of issues schedule for a 2009 publication not yet out and on Westlaw.  Still, the phrases have appeared 108 times so far in the JLR database.  That’s a lot of cites.  Out of curiosity, I did a quick check of my own citations — vain, sure, but at least to an interesting end — and I would estimate that about 25% of the citations to my own work in the last year have been to my blog posts rather than traditional journal articles.

In short, I think we’re seeing a shift in how law professors and legal journal editors view blogs. The old lines have blurred.  Blogs have become a significant part of the scholarly conversation.  I didn’t expect this to happen, at least so soon. And I don’t know whether the trend will continue.  But I think the trend is a real one.

The commentors to Orin's post usefully note that it seems what has really changed is how blogs are perceived as much as whether this medium of expression has changed.  Thus, I will stick to my view that thoughtful blogs always were (or could be) a form of scholarship, just like any other form of communication can be a form of scholarship if deployed effectively to that end.

Though I share Orin's sense that the perception of blogs have evolved in recent years, I have been largely disappointed that blog technology has not advanced much to better enable blogging to serve as a truly sophisticated and effective academic medium.  In my "Scholarship in Action" article, I urged the development of new forms of on-line collaboration like wikis and other means to further improve on-line legal idea development, but such technologies have been slow to take hold.  Instead, society has been drawn to short-attention-span on-line media like Facebook and Twitter, neither of which seem capable of supporting the thoughtful and in-depth development of ideas that are often an essential aspect of true scholarship.

December 2, 2009 at 10:19 AM | Permalink


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Why would anyone think that blogs are NOT legal scholarship? Of course plenty of blogs are just uninformed self-expression. Those are not "scholarship" of any kind. But there are others as well -- like this one. Especially given the erudite commentary provided by those who tend to take the prosecution side.

OK, that last line was a joke.

The truth of the matter is that "legal scholarship" was always overblown. The principal vessel of "legal scholarship" is law review articles. But here's the big secret: No one actually reads law review articles, while millions of people read blogs. Thus, it seems to me, blogs are, in terms of actual effect, MORE useful than most other "legal scholarship."

Posted by: Bill Otis | Dec 2, 2009 10:38:43 AM


Just to clarify, back in 2006, I didn't argue that blogs "couldn't" be scholarship or "are not" scholarship. My argument back then was that the technological limitations of blogs made it difficult for them to facilitate scholarly ideas relative to other formats.

Posted by: Orin Kerr | Dec 2, 2009 10:48:45 AM

So, Orin, have the technological limitations changed or has just your definition of scholarship changed?

Posted by: Doug B. | Dec 2, 2009 1:29:58 PM

Doug B.,

As I discuss in the post, the technology has changed and the social practice has changed, too. My definition of scholarship remains constant.

Posted by: Orin Kerr | Dec 2, 2009 1:47:21 PM

Here is why a blog can provide better law scholarship than a law journal. No dumbass student editor. Experienced adults in the field may read posting, and experienced people in the field can confirm or rebut the content. The content is enriched by this interactivity. Even if left open to cranks, and disgruntled outsiders, that is still good feedback about the feelings of a sector of the public.

Whenever an SSRN article is linked to here, multiple people pounce on this left wing propaganda. Members of the public can then get both sides. The criticism is expensive consultation for the author for free. I doubt the lawyer either likes nor appreciates that.

Posted by: Supremacy Claus | Dec 2, 2009 8:50:56 PM

I would like to hear a justification for law student editing of law journals.

1) How is that not offensive, after the hard work put in, that the paper is not worthy of comment by a peer, but only by a student?

2) How is student editing not disruptive of the 80 hours a week of study the student must put in to do well?

3) How does a student know the quality level of a paper in a specialized area of the law that it takes 10 years of practice to do well? A second year med student decides on a paper on a new neurosurgical procedure, but has never seen a neurosurgery. Is that remotely possible? Is there any justification for that inappropriate scenario?

4) Student are lay people. They can at least demand Plain English. That could be a benefit. How come they never do that, or at least never get Plain English if they are demanding it?

5) Cutting edge article choice and editing is done by people who know little or nothing about the law. Is that a factor in the atavism and the incompetence of the law?

Posted by: Supremacy Claus | Dec 3, 2009 4:12:25 AM

If I was proximate to a university law library I could access law review volumes. But I am not anywhere near a university. Many lawyers are not. The blogs are available on the nearest computer. Law reviews need to be published on the internet. Otherwise they will go the way of the DoDo bird.

Posted by: mpb | Dec 3, 2009 9:34:55 AM

I used blogging as a form of confrontation after I was denied an evidentiary hearing in court.

Posted by: kay sieverding | Dec 3, 2009 10:37:10 AM

mpb, I agree. Put the law reviews on the internet!!. I do legal reserach constantly for trials and appeals, but haven't been to an actual law library in five years. I use Westlaw. But the plan I have doesn't cover law reviews; the one that does is much too expensive. I miss them. They frequently provide creative ideas and insights with a multitude of cases. I am a much better lawyer when I consult them, but I rarely do now.

Posted by: Michael R. Levine | Dec 3, 2009 12:07:42 PM

Of course, many law reviews ARE on the Internet.

Likewise, Lexis is available through many college libraries, often online. I assume graduates can visit them in person in many cases.

As to the remark as to SSRN, I don't understand the "left wing propaganda" comment.

Posted by: Joe | Dec 3, 2009 2:36:47 PM

Whenever there is a link to an SSRN article here, it usually promotes bigger government, lawyer rent seeking by hyperproceduralism, and implies the greater suffering of crime victims. There is a strong bias in law faculty toward these values. Government is a wholly owned subsidiary of the criminal cult enterprise that is the lawyer profession.

Such bias represents educational malpractice and fraud. The student is paying for education and is getting biased indoctrination into failed left wing garbage.

The folks here are older and rebut these ridiculous articles easily. In class, the audience is younger, dependent on the good will of the biased faculty, and eager to please the cult indoctrinator for the sake of future enrichment. There is some duty to present both sides, or to point out a second side exists.

Beyond partisan politics, there is never, ever any disclosure that the core doctrines of the common law are supernatural, and are not facts in nature. The supernatural in forbidden by the Establishment Clause, so all law faculty are in outright insurrection against the Constitution. I encourage the law students to throw bad food at the faculty whenever the traitor utters a supernatural doctrine.

Posted by: Supremacy Claus | Dec 4, 2009 6:19:23 AM

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