Blogging law

Trying to catch up on interesting developments over the past few weeks, I note the very interesting and wide-ranging discussion going on across several blogs dealing with legal scholarship about the value of blogging in that discipline. It seems to have started with several reports (here on Balkinazation, here on the Volokh Conspiracy, and here on Law Librarian Blog) about the rapid increase in citations to blogs in the legal literature. Lots of interesting questions are raised here. Why are these citations growing? Jack Balkin writes about the assimilation of blogs into the “larger universe of legal writing.” Is there a different ethic and etiquette for citing blogs in scholarly articles? Eugene Volokh suggests that there is and provokes a fascinating chain of replies. His discussion of the ethics of citing unpublished sources continues here. And finally, is this good for scholarship, or the beginning of the end? Brian Leiter writes a long piece on “Why Blogs are Bad for Legal Scholarship.” In spite of the apparent “liar’s paradox” here – telling others not to read blogs in a blog – Leiter makes an interesting argument about the importance of mediation and some way to test and evaluate the expertise of the one whose writing is being cited.

I have commented before on the growth of informal channels of scholarship, but have not written much about the relevant roles for different types of scholarly venues. These posts, and several others to which they link, do a nice job of starting that discussion. The linking itself is an important phenomenon; blogs provide a novel environment in which arguments and discussions can connect to and interpret each other. From that perspective, citing to a blog in a traditional article seems to defeat some of the principle advantages of blogging – the immediacy and interconnection.

It is also interesting to speculate on why legal scholarship seems to be the discipline in which this conversation is taking place. When I first read about it, I wondered if the unique aspects of legal scholarship, where most of the journals are edited by students rather than by full-time academics, might lead the professorate to feel less proprietary about their publications and thus more willing to experiment outside of the traditional confines of scholarship. Leiter suggests a somewhat different spin on this observation when he writes: “The problem is that reputational effects in the legal academy are mediate by two institutions whose primary arbiters are not, themselves, experts or even quasi-experts… First, one of the major venues for legal scholarship remains the student-edited law reviews” (the second institutional problem is the “journalistic reception” of legal ideas). For Leiter, the problem to which this lack of expertise contributes is the “availability cascade” – “an opinion that appears to be informed gains credibility by virtue of being repeated and thus becoming current in discourse.” For its discussion of this phenomenon alone, Leiter’s piece is worth reading, even while recognizing that blogs are certainly here to stay and scholarship is going to have to find ways to deal with them.

2 thoughts on “Blogging law”

  1. The question: Can blogs be considered a “traditional” or valid source of scholarship? Will need to be answered. We know that people are reading them, citing them and communicating with each other in blogs every day. These blogs are not peer reviewed in the traditional sense but because readers can react to them, provide commentary and critique a blog statement the blog itself presents the opportunity for peers to address flawed arguments. Blogs will need to be addressed because if they are considered traditional scholarship then they should be protected under Intellectual Property rules that ensure that faculty retain the ownership of this information regardless of where it is hosted. Also ignoring the contributions of blogs impedes scholarship and intellectual progress.

Comments are closed.