Law X.0

Sniffing Out Fake Blogs

From PC Magazine:

"You are perusing the shelves of a local bookstore, and you see the memoir of Count Chocula or the collected letters of Mr. Whipple. Might you be suspicious? Well, in the blogosphere, companies are trying to use legitimate-looking blogs as ads—nicknamed "flogs" for "fake blogs." But increasingly, savvy bloggers are thwarting them."

See also:  Manipulating the Blogosphere for Fun and Profit, PC Magazine. [RJ]

Essential Articles Every Serious Blogger Should Read

There's something for everyone in 55 Essential Articles Every Serious Blogger Should Read a bibliography compiled by Matt Huggins, Entrepreneural Blog, and organized under the following topics:

• Blogging Basics: Getting Started
• Building Meaningful Content
• Increasing Traffic & Retaining Readers
• Linkbaiting, SEO, & Social Networks
• Building a Community
• Blog Monetization
• Miscellaneous Blogging Advice

Download It While Its Hot: Open Access and Legal Scholarship

Illinois Law Prof and Legal Theory blogger Larry Solum has deposited Download It While Its Hot: Open Access and Legal Scholarship on SSRN. Here's the abstract:

This Article analyzes the shift of legal scholarship from the old world of law reviews to today's world of peer reviews to tomorrow's world of open access legal blogs. This shift is occurring in three dimensions. First, legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations). Second, a regime of exclusive rights is giving way to a regime of open access. Third, intermediaries (law school editorial boards, peer-reviewed journals) are being supplemented by disintermediated forms (papers on the Internet, blogs). Blogs and internet conversations between academics are expanding interdisciplinary legal scholarship and increasing the avenues of communication among legal scholars, practitioners and a wide array of interested lay persons worldwide.

Hat tip to Ian Best.

A New Type of Treatise?

Interesting post from Legal Blog Watch: "Within the span of a few years, blogging has changed the nature of legal scholarship and law reviews. And blogging has given hundreds of consumer clients access to information on substantive law through blogs like Kansas Family Law Blog, Massachusetts Estate Planning and Elder Care or the California Personal Injury Blog. And now, move over Westlaw and Lexis and keycites and annotations, because blogs are now giving legal research a run for its money." [RJ]

Six Great Blog Articles

1. Apostles of the Blogosphere (Financial Times)

Blogging as a medium has virtues: speed, spontaneity, interactivity and the vast array of information and expertise that millions of bloggers can bring together. But it also has its vices. The archetypal political blog favours instant response over reflection; commentary over original research; and stream-of-consciousness over structure.

2. The Invisible Hand on the Keyboard (The Economist)

With professors spending so much time blogging for no payment, universities might wonder whether this detracts from their value. Although there is no evidence of a direct link between blogging and publishing productivity, a new study … shows that the internet's ability to spread knowledge beyond university classrooms has diminished the competitive edge that elite schools once held.

3. Making Rain on the Net (ABA Journal)

A new wave of legal bloggers is now emerging, consisting of law firms—from solos to the nation’s largest—using Web publishing as marketing. Not only are blogs a good way to demonstrate a firm’s expertise and to give people a sense of a lawyer’s personality, but search engines like Google are designed in such a way that search results from blogs come up before others. For example, Martin Schwimmer has a blog called the Trademark Blog, and if anyone “googles” trademark lawyer, Schwimmer will be listed among the first results, above some of the nation’s largest firms.

4. Propopsed Attorney Advertising Rules Could Place Restrictions on Web Logs (NY Sun)

The rules do exempt submissions to publications, although whether a blog entry counts is open to debate, several attorneys said. Taken at face value, the proposed rules would require attorneys to send copies of blog entries to the disciplinary committee, a Washington, D.C.-based blogger, Greg Beck, said. It would also require lawyers to print the words "Attorney Advertisement" in large letters on their blogs.

5. In Court Blogs Can Come Back to Dog the Writers (Boston Globe)

First came the hard-learned lesson that e-mail can be used as evidence in legal proceedings. Now blogs -- basically, continuous public Internet journals -- are emerging as fair game in civil disputes, criminal cases, and government investigations, where they are used as evidence with growing frequency.

6. Bloggers and Parties – Can the Netroots Reshape American Democracy? (Boston Review)

Blogs are not only more open than traditional media; they are a better basis for argument. Newspapers, magazines, and broadcast media involve one-way communication from the originator of the content to the readers or audience. To be sure, there are letters to the editor, but blogs are more fundamentally dialogic. Bloggers are engaged in continual debate with each other. Many blogs also have comments sections, allowing non-bloggers to join the conversation. The result is a much more freewheeling, egalitarian form of communication than traditional media, one in which the distinction between author and reader is sometimes blurred to the point of near-irrelevance.

Article: Blogosphere Aboil

Lawyers who blog will be interested in this ABA newsletter article entitled “Blogosphere Aboil.” It describes how the state of New York may designate lawyer blogging as advertising, with consequences that go beyond the state: 

The storm was set off by a proposal that “computer-accessed communications” such as blogs be included in New York’s definition of legal advertising, and therefore require state scrutiny. The proposal, by a committee created by the state’s Administrative Board of Courts, also suggests the state code of professional responsibility extend court jurisdiction to out-of-state legal advertising that appears in New York. 

Thanks to Christopher Ernst of BDB, who blogs at Tort Law Journal, for the pointer.

Blogs are Liberating the Profession from Dull Writing

Prof. Doug Berman has a new article in the National Law Journal entitled Blogs are Liberating the Profession from Dull Writing. It provides an excellent overview of why lawyers and law professors are turning to blogs as an alternative means of publishing and communication. The article mentions the collections on 3L Epiphany of cases citing legal blogs and law review articles citing legal blogs. The article also includes quotations from these two interviews I conducted with judges:

• Justice Judith Lanzinger (Ohio Sup. Ct.): "The Future Will Belong to the Flexible"
• Judge Richard Kopf (D. Nebraska): Legal Blogs Will Fill the Practicality Gap 

Here is an excerpt:

The growing respect for blogging among legal professionals stems in part from the medium's tendency to resist the worst excesses of the traditional forms of legal writing and publication. Many legal documents and most traditional law review articles can be ponderous, with assertions over-wrought, arguments over-made, principles over-cited and everything over-written. The blog medium fosters and rewards succinct expression. For legal writers and legal readers, it is liberating and refreshing to have thought-provoking ideas about the law expressed in only a few paragraphs or even a few sentences.

The blog medium also mitigates against encumbering legal points with endless footnotes and citations. Bloggers can provide references through hyperlinks to original sources or other blogs, but this reality highlights another technological virtue of the medium for developing and expressing legal ideas. Through links, blogs can facilitate a more direct and immediate engagement with original legal materials-whether cases, statutes, briefs, reports or articles-for the blogger and the blog-reader. Through linking, blogs also can foster a more direct and immediate engagement with other lawyers and law professors working on related issues.

Valuably, blogs enable lawyers and law professors to reach an extensive and extraordinarily diverse audience, and to interact with many new people as "cyber-peers." Blogs facilitate exposure to, and scrutiny by, a national and international readership. A blog's audience can include not only judges and practitioners at all levels and in many jurisdictions, but also policymakers, academics from many disciplines and journalists of all stripes. In addition, blogs are accessible to non-lawyers interested in legal issues and, perhaps most valuably, the real people whose lives are affected by the legal policies and doctrines that a blog may discuss. Through comments, links and other means, blogs foster continuous interactions with sophisticated (and unsophisticated) readers that can provide for a distinct and valuable form of peer review.

National Law Journal Article on Cases Citing Legal Blogs

My recent post on cases citing legal blogs has led to a National Law Journal article, now available online, entitled Judges Cite More Blogs in Rulings. I have inserted several hyperlinks within the two excerpts below (one of the benefits of blogging):

The ability to burrow deeply into a specialized area of the law with continuous updates has an undeniable appeal to practitioners. This phenomenon was not lost on Ian Best, a 36-year-old law school graduate who began a blog, "3L Epiphany," as an independent study project for academic credit at Ohio State University's Michael E. Moritz College of Law. It is a taxonomy of legal blogs. Best counted them, classified them and tracked their development.

"The most significant development is judges citing blogs," said Best, who lives in Columbus, Ohio, and is awaiting his bar exam results.

   

Best has found 32 citations of legal blogs in 27 different cases dating back to 2004. Perhaps the most noted was by Justice John Paul Stevens in his dissent in an important sentencing decision, United States v. Booker, 543 U.S. 220 (2005).

   

…

   

Many judges may remain reticent to cite something as potentially changeable as a blog, which may cease to exist or be taken over by someone new.

Best said those are legitimate concerns.

He pointed to a case that cited a blog for a song parody-but the online reference page no longer exists. Suboh v. Borgioli, 298 F. Supp. 2d 192 (D. Mass. 2004).

"One way of solving that is with hard copy publication," he said. "If citation becomes more prevalent there needs to be some hard copy that can be collected and official," he said. Blog authors should also keep a cited post unchanged for future researchers he said.

The article includes quotes from Prof. Doug Berman, Prof. Eugene Volokh, U.S. Court of Appeals Judge Diarmuid O'Scannlain (9th Circuit), and U.S. District Judge Sam Conti (San Francisco).

American Lawyer: Blawgs on a Roll

Dahlia Lithwick has a great article entitled Blawgs on a Roll in the June issue of The American Lawyer on the Web. It mentions 3L Epiphany along with several other legal blogs. Here is an extensive quote:

“Blawgs”-for the uninitiated-are legal blogs, and if you haven't incorporated them into your daily reading, you are missing out. The most compelling, cutting-edge, honest legal writing being produced in this country today is happening on the Internet, and the crop improves daily. From the fistful of judges (including Richard Posner) who maintain regular blogs, to the vast and growing number of law professors and law students who find the time to post daily, it's clear that the real bones and guts and sinew of the national conversation is happening online, and not in print.

As I write this column, the major newspapers are consumed with two or three big legal stories. And that's fine. But, today in the blogosphere, the debate ranges from free speech on college campuses (at The Volokh Conspiracy) to Yale's decision to admit a Taliban student (at Glenn Reynolds's Instapundit). Douglas Berman-whose blog, Sentencing Law and Policy, has now been cited in 21 judicial opinions-is tracking the fallout from the Supreme Court's sentencing guidelines cases. Lawrence Solum is unpacking the “nuclear option” on his Legal Theory Blog, while Rick Garnett engages PrawfsBlawg readers in a discussion of free speech constraints on religious ministers. Meanwhile, Howard Bashman offers a clearinghouse of all the legal news of the day at his über-blawg, How Appealing. [Bashman's blog, which can be found at howappealing.law.com, is an affiliate of ALM's Law.com network.]

And that's not even the tip of the iceberg. Ian Best, a third-year law student at Moritz College of Law, is creating an online taxonomy of blogs by attorneys, judges, and law professors-and he's still counting at 643. Best's site, which calls itself 3L Epiphany, offers ample proof that the Internet is poised to accommodate an entire universe of lawyers and legal thinkers. Why? Because it promotes dialogue, offers instant access to primary texts, and imposes no space or time constraints.

I fully agree with Ms. Lithwick that “[t]he most compelling, cutting-edge, honest legal writing being produced in this country today is happening on the Internet.” In particular, legal blogs have allowed new types of “short-form” scholarship to develop. This topic was discussed in detail at the Harvard Bloggership Conference. Similar discussions, concerning the advantages of legal blogs over traditional law reviews, are collected in this index.

   

The article states that the number of legal blogs in my Taxonomy is 643. This is correct. My original count of legal blogs before I began categorizing them was 686. In creating my taxonomy I removed many blogs that were inactive or insufficiently legal. I simultaneously discovered and added more legal blogs that were not on my original list. So 643 is the accurate current number. I have since collected more legal blogs, but have not had adequate time to include them in my taxonomy. I plan to add these blogs throughout the summer.

    

The article also mentions that Prof. Doug Berman’s Sentencing Law and Policy Blog has been cited 21 times in judicial opinions. Those opinions are included in this collection: Cases Citing Legal Blogs. [One minor correction to the article: the 21 citations occurred in 17 different cases, not 21.]

Article: The Shifting Legal Landscape of Blogging

An article entitled The Shifting Legal Landscape of Blogging, by attorney Jennifer L. Peterson, appears in the March 2006 issue of Wisconsin Lawyer. (Hat tip: Law Dawg Blawg.) Here’s the introduction:

The use of blogs as a forum for online communication is gaining popularity and their content is gaining influence. Yet the structure and nature of blogs raise a litany of challenging legal issues, including ones involving defamation, privacy, and copyright law. As the law catches up to this new technology, bloggers and their lawyers need to tread carefully in the shifting legal landscape of blogging.

A Safire Article on Blogging

An article on the language of blogging, entitled Blargon, from William Safire of the New York Times.

Article: Time for the Last Post

Would George Orwell have blogged? Find out in this article by Trevor Butterworth at FT.com (via Arts and Letters Daily).

Article: Will Instapundit Become an Instant Best-seller?

An ABC News review by Michael Malone of Glenn Reynolds' new book, "An Army of David's," is here.

Article: Blogs and the Tireless New Reality They Have Created

This article by Clive Davis is a book review of "Blog! How the Newest Media Revolution is Changing Politics, Business, and Culture," by David Kline and Dan Burstein.

Article: Blogging Law Profs Assault Ivory Tower

This article from The National Law Journal, Blogging Law Profs Assault Ivory Tower, discusses blogging by law professors and the controversy over whether it constitutes scholarship.

Prof. Caron of TaxProf Blog (who is quoted in the article) has collected numerous responses from law professor bloggers here.

As a reminder, my previous collection of blog posts and articles on the topic of Academic Blogging is here.

D.C. Bar Article on Legal Blogging

I linked earlier to an article in DC Bar.org from April 2005 by Sarah Kellogg, entitled “Do You Blog?” I found this and numerous others articles on “blawgs” at Bill Gratsch’s site, www.blawg.org.

Here are some quotes from the introduction:

“‘You could tell early on that web logs would be very appealing to lawyers because we’re uniquely suited to doing this,’ says [Denise] Howell …. ‘Lawyers are trained to write … and research. The writing they generate tends to have some credibility behind it. That is the crux of web logging right there.’”

…

“Experts say that attorneys will find more than companionship in the blogosphere, noting that blogs can boost legal practices, assist in legal research, and turn every attorney into an instant cyberexpert in his or her practice area.

“‘Blogs allow for easy access to information and make it easier for lawyers with similar practice interests to get in contact with each other,” says Stephanie Tai, an appellate environmental litigator for the federal government and cocreator of the Blawg Review, which tracks articles and commentaries in law review journals. “I think it helps overcome a lot of the hierarchy present in the profession as well. Because of my blog, I’ve been able to correspond with various law professors who I don’t think I would’ve come into contact with otherwise.’

“Yet cyberspace and blogging hold their own pitfalls for legal professionals. That’s because, though posting one’s opinions to the World Wide Web can be heady stuff, mistakes made as the world watches can be far-reaching and difficult to erase. And the ethics rules governing lawyers are far more stringent than those (practically none) governing bloggers who write about politics, the environment, or chess.

“Still, legal professionals of every kind, not just technolawyers, say the risks are worth the rewards. Blogs provide an opportunity to break free of the traditions and limits of the legal profession, enhancing the practice of law in the digital age.”

The article then proceeds to give a brief history of blogs in general, and then notes that blogs have benefits over traditional websites:

“As the technology took hold, popular blogs soon earned a reputation as provocative or funny journals about pop culture, politics, and technology. It was clear to early constituents that the medium had the power to create cyberspace communities as distinct as towns, cities, and states.

“Compared to a web site, a blog remains a cheaper and more fluid vehicle for communicating on the web. By forgoing the bells and whistles its web site kin features—databases that allow for extensive searching, for instance—the blog can be a quicker and easier content management tool. A blog can be updated a dozen times a day, if necessary. Even the hippest web sites are considered stodgy by bloggers; they say web sites lack the freewheeling enterprise of blogs, which can spark a worldwide debate in a flash.”

Then the article proceeds to discuss blogs in the context of the legal profession:

“The greatest contribution blogs may make to the legal profession is their ability to reveal talent and expertise often hidden in courtrooms and boardrooms. Blogs excel at getting the word out, and observers say lawyers who embrace them are bound to be rewarded with fans and fame.

“Instead of waiting for months or years to be published in a legal journal or magazine, attorneys can pen a short article or commentary expressing their views on any range of subjects, dramatically cutting the time it takes to reach colleagues and the public.

“The blogosphere is teeming with topic-specific blogs that have won kudos from legal experts for their ability to supply timely information that is unique and hard to find.”

The article discusses many of the benefits of legal blogging. Blogs are:

• useful to law students for observing what practitioners really think about the law.

• advantageous to solo and small firm practitioners, who are the ones “best situated to take advantage of reputation-builder blogs.”

• beneficial in exploring new potential areas of practice, providing “a way to strike out and explore a legal interest that may have been little more than a hobby to this point.”

• ideal for legal research, because “they can be used to monitor evolving legal issues, uncover answers to arcane legal questions, or find far-flung experts across the continent.”

• a growing method of client recruitment through “allow[ing] lawyers to showcase their past work and their potential.”

• constructive to communicating with clients, keeping them “up-to-date on their cases or educat[ing] them about a firm’s skills and experience.”

But there are pitfalls to legal blogging. For example, blogs are:

• potentially a mixture of advertisement and solicitation that can cross ethical and regulatory lines.

• confusing as to what constitutes actual legal advice.

• risky in the areas of client confidentiality and conflicts of interest.

• inaccurate (and even sanctionable) if the law is different in a reader’s jurisdiction.

This summary doesn’t do justice to a very informative article. I would recommend that people read the whole thing.

The following blogs are referred to in the article:

Adam Smith, Esq. - link

Bag and Baggage - link

The Common Scold - link

Dennis Kennedy - link

Ernie the Attorney - link

Inter Alia - link

Jim Calloway’s Law Practice Tips Blog - link

My Shingle - link

The [non]billable hour - link

Reid My Blog! - link

SCOTUSblog - link

The Trademark Blog - link

Underneath Their Robes - link

The Volokh Conspiracy - link