Blogging as Scholarship: The Debate Continues

I wrote previously about the collection of essays on “The Future of Legal Scholarship” at the Yale Law Journal Pocket Part, several of which focused on blogging. The collection has since been updated with two new essays:

• Prof. Rosa Brooks: What the Internet Age Means for Female Scholars
• Prof. Brian Leiter: Why Blogs Are Bad for Legal Scholarship  

I quoted Prof. Brooks on a previous occasion here, because of her blog post that stated, “[T]he vast majority of law review articles are read by few people, and cited by even fewer.” Prof. Brooks suggested that it was time for her to say goodbye to law reviews. Now she writes in her essay at the Pocket Part:

The very existence of the Pocket Part testifies to the nature of the changes the Internet has brought. Once, we all waited patiently for The Yale Law Journal to arrive at the library; now, we read half the articles in advance on SSRN and the rest when they show up on the Journal’s website. And as legal blogs have proliferated, we can all produce and read real-time analysis of court decisions, legislation, and political events. Who would wait to open a law journal next year to see what Jack Balkin thinks about Hamdan v. Rumsfeld, when we can find out right now by reading his blog?

...      

At the Harvard Law School conference on blogs and legal scholarship, mentioned above, conference participants disagreed about some particulars, but few of them questioned the premise that the Internet is, indeed, transforming legal scholarship. The participants agreed that we will see more and more “short form” legal scholarship, ranging from the thirty-page essays that law journals print but also make available online, to the few-thousand word pieces in the Pocket Part, to blog entries of a few paragraphs. For practitioners, students, and even many other scholars, these developments will make legal scholarship far more useful, accessible, and user friendly. (I’ll leave for another day—or another commentator—the question of whether scholarship will be less deep in a world of more frequent but smaller units of scholarship).      

The second essay, by Prof. Leiter, gives the skeptical perspective on legal blogging as scholarship:

Of course, there is another culprit in this story, namely, the blogs themselves. If the leading law blogs were written only by the leading scholars, the availability cascades that occur would be more likely to raise, rather than lower, the level of scholarly discussion. But that is, unsurprisingly, not the case. The most visible and highly trafficked law-related blogs have one, and only one, thing in common: they were started relatively early in the “blog boom,” that is, in 2001 or 2002. (Many, but not all, also tilt noticeably to the right.) Latecomers, like the Becker-Posner Blog or the University of Chicago Law Faculty Blog, which generally have much higher intellectual content, get nothing like the traffic of the early arrivals. As the economists like to say, the “barriers to entry” to the Internet in general, and the “blogosphere” in particular, are low, and not just in monetary terms. One need not be a good scholar, or an intellectual heavyweight, to have a blog, and if one got into the blog game early enough, one can thrive, especially with an audience of non-expert consumers.

The following quote from Prof. Leiter’s essay strikes me as unsupportable: “The most visible and highly trafficked law-related blogs have one, and only one, thing in common: they were started relatively early in the "blog boom," that is, in 2001 or 2002. (Many, but not all, also tilt noticeably to the right.)” Most of the blogs which have received the greatest number of citations from court cases and law review articles (which I would consider proof of visibility) do not fit Prof. Leiter’s description of starting early or tilting noticeably to the right. Most of these blogs began after 2002, and they contain a variety of political viewpoints (or are apolitical in nature).

      

To be specific, the blogs which have been cited the most are Balkinization, The Becker-Posner Blog, How Appealing, Legal Theory Blog, Leiter Reports (no right-leaners there!), Lessig Blog, Patently-O: Patent Law Blog, ProfessorBainbridge.com, SCOTUS Blog, Sentencing Law and Policy,  The Volokh Conspiracy and White Collar Crime Prof Blog. Not only are they visible (hence their being cited), but many receive high amounts of traffic. In my opinion, these twelve legal blogs represent a new, legitimate, and respectable form of scholarship.

      

Eventually, the citation of blogs in court cases and law review articles will no longer be considered a novel development. Instead, it will be just as valid and worthwhile to ask which law review articles are being cited by blogs, and which court cases are attracting the most attention in the legal, scholarly blogosphere.

      

(As an aside, please note via this important correction that the Yale Pocket Part came into existence before the Harvard Forum.)