Law X.0

I'm Leavin' on a Jet Plane...

I'm off to the Harvard Conference. I won't be live-blogging it, but I'll write about the Bloggership Experience when I return.

At some point in the near future, probably when I'm studying for the Bar, I will be sending off a "Bloggership" of my own around the Web...

Q and A with a Skeptical Professor: "It's All Online!"

What follows are excerpts from an email conversation I had with a professor, who gave me permission to post this with or without attribution. I prefer to keep his name discreet since I am posting excerpts and not the emails in their entirety, and because I have made minor changes to my own responses.

      

In an email to this professor (and others) I made the following statement: “I can say with near certainty that any law student who blogs for a semester on a legal topic, provided he or she does it with a high standard, will gather far more readers and receive far more professional recognition than by turning in a seminar paper or even publishing a law review article.”

          

The professor responded, “But will they learn as much that is relevant to their intellectual development and/or future clients? After all, the National Enquirer has lots of readers.”

    

He then followed up with several questions: “As someone who may have bloggers for credit some day in my future, I'm curious: What did you do for credit besides provide a list with sub-categories?  Is there a paper you wrote? Is it on line?  How many credits did you get? How is the work being evaluated for grading purposes?”

      

Here are my answers. The professor's original questions are in italics, followed by my responses:

    

But will they learn as much that is relevant to their intellectual development and/or future clients?
    
It depends on what they do with their blog. A blog is a form of both writing and publishing which has some advantages over traditional forms. But the intellectual content is up to the student. If they analyze a case or legal specialty over the course of the semester, a blog will make it available to the entire legal profession in a way that a seminar paper will not, even if it's later published.

   

As far as relevance to future clients, blogging is one way to attract clients in the first place (see e.g. Do You Blog?, an article from DC Bar). If a lawyer has an interest in a particular specialty (say, e-signature law) and creates an authoritative blog on the topic, and establishes a well-regarded online presence, potential clients will quickly discover him. Creating a blog is not a substitute for learning analytical skills, but it is a better way to display them than traditional forms of publication.

    

I would suggest that one benefit to clients (but difficult to measure) comes from being part of the “blog-conversation” that judges and lawyers are increasingly paying attention to.

    

After all, the National Enquirer has lots of readers.

   

Yes, they do! When I said that students gain more readers through blogging than by turning in a seminar paper or publishing in a law journal, I took it as a given that the readers would be understood as legally sophisticated. For example, these readers here are not likely to be readers of the National Enquirer.

      

Also, when I occasionally check my Sitemeter, I find that there are many readers of my blog from the U.S. Courts, from various government agencies, and from a myriad of law firms. Recently I had someone from the House of Representatives spend a half-hour reading my blog. My point, again, is that law students benefit from blogging because they establish a more significant readership (not National Enquirer readers, but perhaps not law review readers either).

       

As someone who may have bloggers for credit some day in my future, I'm curious: What did you do for credit besides provide a list with sub-categories?

      

Well, it was a lot more than a “list with sub-categories,” in my opinion. I recently spent an entire hour with a lawyer from a large law firm who was absolutely intrigued by the taxonomy, both the content and the structure. Many people in the legal profession have sent me emails thanking me for creating it. My goal was to demonstrate the advantages of a particular form, a new online model for writing and publishing. Creating and subdividing a list is relatively easy, while publishing a blog taxonomy online - creating one blog post after another and making sure they all interrelate - is not easy, but it is more beneficial. I suppose you could say I received credit for providing a service to the legal profession, as many lawyers and law professors have indicated (see here again). 

    

Is there a paper you wrote? Is it on line?

    

No, that's my point! It's all online! There was no paper. I didn't turn in anything, I posted it all online. And that's what I believe students should do more often, at least as Independent Study projects. They don't need to turn in a paper which gets buried forever among many, and they don't need to go through the ordeal of trying to publish it in a law review. They can post it online - not only the finished product, but the very process of creating it. The blog itself is the product, and more people, from more places, will read it than will read a student's work in a traditional scholarly form.

    

I will tell you, however, that when I finally have time (when school is over, and the Bar), I hope to write a paper about my observations and experiences, and will seek to have it published in a law review. If I ever do this, I won't submit it through the traditional process. I'll post my paper on my blog, and invite law review editors to read it. Then I will publish it in the first one that makes the request. I hope to establish another precedent that way. Maybe no one will respond, but nevertheless that is the direction legal publication is headed. We are in the 21st century, and the current system belongs to the 19th.

    

How many credits did you get?

   

Two credits. By the way, I didn't need these credits to graduate. I could have taken 14 credits this semester (that is, minus the two for the blog) and still graduated. One student critic suggested that blogging was an easy way for me to get credit. Quite the contrary. But I went through with it because I am very passionate about how legal blogs can have a transformational effect on the profession, including our current system of legal education. I wanted to establish a precedent of “blogging-for-credit” for future law students, and at the same time display to law professors and lawyers the tremendous variety of legal blogs that are out there, and the advantages of blogging over traditional forms of scholarly publication.

      

How is the work being evaluated for grading purposes?

      

It's “pass/fail,” which doesn't require the same evaluation as grading. My understanding is that most if not all Independent Study projects here are pass/fail. Suffice it to say, I've passed.

      

For your own future students who request a blog-for-credit project, I don't see why the evaluation should be that much different from how you would grade a regular paper. It's the form of blogging, not necessarily the content, that's distinct. The final product to be graded, the blog itself, will be an accumulation of many “posts” rather than a paper. Some of the blogs in these categories might serve as examples: Case Blogs, Statute Blogs, and Trial Blogs. If you wish, you could require the student to take all of his posts and put them together into a smoother, more cohesive whole. But even in that case I would suggest he still display the final product on his blog, regardless of whether he turns in a hard copy to you as his professor. That way the potential value of your student's work will not be buried under similar papers in an obscure corner of your office, but will be visible and available to the entire legal profession.

What About Political Blogs? Explaining an Inconsistency

One of the most difficult decisions in making my Taxonomy of Legal Blogs was whether to include certain political blogs. Obviously the fields of law and politics overlap extensively, and there are numerous blogs which cover both topics. My rule of thumb was that I would not consider a blog to be a “legal blog” if less than 1/3 of the posts were about legal matters. If a blog was both legal and political, but not focused too much on the latter, I usually included it in this category: General Blogs – Law and Culture, Economics, Politics, etc. To have included blogs in my taxonomy which were far more political than legal would have changed the nature of what I was trying to accomplish.

    

However, in compiling my Collection of Law Review Articles Citing Legal Blogs I was more lenient. I included blogs which were cited by articles even though they were omitted from my taxonomy. Examples are Instapundit (cited 9 times), Leiter Reports (cited 6 times), and The Right Coast (cited twice), which are obviously very different in style, content, and political persuasion. These three blogs are not included in my taxonomy, despite receiving law review citations, because they are primarily political blogs and not legal ones. My criteria for including blogs in the taxonomy and in the collection of law review articles were different.

   

Each of these three blogs deserves a further word. 

    

1. I did not include Leiter Reports, which is a philosophical blog as well as a political one, in my taxonomy. Several of the citations to Leiter Reports in the law review articles concern law school rankings. The more recent blog Leiter’s Law School Reports, part of the Law Professor Blog Network, is now the location of Prof. Leiter’s commentary on rankings and other academic matters. Leiter’s Law School Reports is included in my taxonomy in the categories Legal Academia and Law Professor Blogs.

      

2. Some readers will no doubt be surprised that Instapundit is not included in my taxonomy. But Instapundit rarely focuses on legal matters. Instead it mainly links to alternative news sources and gives brief commentary on politics and current events. Prof. Reynolds sometimes writes about space law or nanotechnology law, but only occasionally. I have great respect for Prof. Reynolds, and even blogged about his interview on C-Span here (Richard Nixon makes an appearance). But Instapundit is for the most part a political blog by a law professor, not a legal blog. The judge in this case thought so as well.

      

3. The Right Coast has one particular post that should be pointed out: A voice, crying in the wilderness, and then just crying. Tom Smith writes about the low number of law review articles that are cited by other articles or by court decisions. Readers who are interested in similar topics can also go to the posts on 3L Epiphany about Blogs and Law Reviews. Unlike many law review articles, 3L Epiphany has been cited in four academic papers after only three months.

        

One more detail concerning the law review article collection is worth mentioning. When counting citations, I only looked at the name of the blog which was cited in the law review article. I did not take into consideration whether the blog post was from a guest blogger. In a few cases an article may have cited to a post by a guest blogger, one who normally posted at a different blog, but that didn’t matter. I listed the article under the name of the blog cited. Similarly, I did not include guest bloggers when figuring out the numbers in the Group Blogs category in my taxonomy.

Webcast of Harvard Symposium

The Harvard Symposium will include a live webcast. Details here.

Academic Blogging Reminder

When I first began 3L Epiphany I compiled a collection of posts on Academic Blogging from 21 different blogs. This was followed by Addendums 1 and 2. These posts discuss whether blogging can be considered academic scholarship. It seems appropriate to remind readers about this collection in the wake of the Bloggership Symposium at Harvard Law School on Friday. For the related topic of how blogs compare to traditional law reviews, see this index.

New Version of Law Review Article Collection

I previously posted a collection of law review articles citing legal blogs. Originally I posted this collection as two documents: a 2-page Table of Contents and the 27-page Collection. These have now been merged together into a single document, available at the same location.

    

Howard Bashman, of How Appealing, was kind enough to convert this document into a pdf file. If you prefer Adobe Acrobat to Microsoft Word, the pdf file is now available (scroll down). Thanks, Howard!

    

Fans and acolytes of Mr. Bashman should be sure to read the highlights from his excellent lecture here at Ohio State: How Appealing: The Life of Howard Bashman. It contains great advice about blogging and appellate practice.

3L Epiphany Gets Cited in Four Academic Papers

I will be attending the Bloggership Symposium at Harvard this Friday. The papers of the participants have already been posted here. It was extremely gratifying to learn that four of the papers cited 3L Epiphany. Those papers are:

• Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs, by Prof. Doug Berman.
• Blogging and the Transformation of Legal Scholarship, by Prof. Lawrence Solum.
• Blogging While Untenured and Other Extreme Sports, by Profs. Christine Hurt and Tung Ying. 
• The Public Face of Scholarship, by Prof. Larry Ribstein.

Much thanks, professors!

      

It is worth pointing out that I have been blogging at 3L Epiphany for only three months, yet I've now been cited in four academic papers by well-known law professor bloggers. On the other hand, the case note that I wrote for law journal took more than a year to write, edit, and publish. It is still not in print and so it has not been cited once by anyone. If my case note has been read at all, it is because I've already posted it on my blog at Footnote 123 (with an explanation here).

   

Blogging is not an elixir, but its advantages over traditional forms of publishing are obvious and extraordinary.

A Mention in the Beltway Blogroll, and a Third Judge Responds

The two recent interviews with judges about legal blogs have attracted a lot of attention, including a write-up in the National Journal’s Beltway Blogroll. I am now posting a third judge's responses.

These answers are from Judge James S. Gwin (Northern District of Ohio). He wrote the decision in the case of United States v. Onunwor. I would like to thank Judge Gwin for taking the time to respond:

1. When you cited a legal blog, did you consider it unusual or unprecedented at the time?

No. Judges frequently cite to matters outside the realm of court decisions, and legal blogs are one other form of legally related materials.

2. How often do you read legal blogs?

Weekly but not daily.

3. Which are your favorite legal blogs?

Professor Berman's Sentencing Blog.

4. Do you consider blogs to be substantial and legitimate forms of scholarship?

Not really substantial. (I do not believe most were ever intended to be an in-depth discussion of a legal issue.)

5. Do you think legal blogs will begin to be cited more often by the courts?

Not sure, but very possible.

6. What predictions do you have about the effect of legal blogs on the profession?

[Chose not to answer.]

7. What other changes to the legal profession do you foresee because of the Internet and the on-line world in general?

I foresee a continued quickening of the pace of legal and judicial practice.

8. Do you regularly read law reviews? If so, which are your favorites?

Other than Harvard Law Review, I usually only review current law review articles that are case related or I believe are of current interest.

9. What advantages and disadvantages do legal blogs have when compared to law reviews and other traditional forms of scholarship?

[Chose not to answer.]

10. Do you have an opinion about whether law students, lawyers, and/or law professors should blog?

No real opinion.

11. Do you think it is appropriate for judges to blog? If you were to start one, what subject(s) would you write about?

Not to give discussions about matters that may be currently before them.

12. (Off the subject of blogging:) If you could change one thing about the legal educational system, what would it be?

[Chose not to answer.]

Blog Law Conference

There was a fascinating conference in San Francisco this past weekend on “Blog Law and Blogging for Lawyers.” Dennis Crouch of Patently-O co-chaired the conference, and has collected posts from bloggers in attendance.

Alice in Wonderland Meets 3L Epiphany

Brandy Karl (bk!) is hosting Blawg Review #54, and it’s well worth a visit. She takes the creative approach of turning it into an “Alice in Wonderland” narrative.

Here’s her description of my recent work:

Both law clerks and law students may have too much Time. Ian Best, however, receives the all important Academic Credit for his work at 3L Epiphany, has assembled a list of Law Reviews that cite blogs, to follow up his other list of law clerks legal opinions that cite blogs.

>Sigh<, said the Rabbit. “I wish I had more Time.”