Sunday, July 26, 2009

The Future of Today's Legal Scholarship part 2

Panel 1: The Future Research Value of Blogs

Chris Borgen, St. John’s University School of Law (Opinio Juris): he wasn’t thinking about creating an authoritative site. He was thinking: I’ve been working on this article for 5 months and if I have to read one more case on the subject I’m going to drill a hole in my skull, so I want to write about something else. A blog sounded like fun. “Let’s put on a show!” Now we have document retention issues, contracts with third parties, guest bloggers from the State Department, management issues (platform, reliability, etc.). Keep in mind: blogs have already evolved very quickly.

At the outset, blogs were basically journals, like Facebook now. Less-networked social networks. Some blogs are like newspapers, reporting on a particular area. Blogs can also be like law reviews, posting longer analysis, ideally somewhat neutral. This is an area of convergence with blogs & law reviews, like the Yale Pocket Part. Opinio Juris has agreements with Virginia and Yale international law journals—the blog does symposia on each issue of the journals as they come out. Blogs can also be bully pulpits. They can be like TV.

Blogs are good at news, and at issue-spotting: pointing out interesting stuff within a particular field. Also good at publicizing: Larry Solum does a great job of getting info out about articles of note on SSRN. And good at community-building, which is drastically different from law reviews—he knows his commenters quite well. Feedback and discussion.

Blogs are not so great at deep writing and deep reading—readers generally assume that they won’t be reading for a long time. The outside length: 7 paragraphs. (Whoops.) Average reader time on site for a post: 3 minutes. Larry Solum’s blog is an outlier.

Where blogs, including legal blogs, made a difference: Guantanamo, torture, Abu Ghraib, and related issues. Did a better job than mainstream media and law reviews because of blog-specific advantages: blogs were able to get to the issues very quickly; without editorial boards there was less need to worry about political contentiousness; these were legal academics with deep expertise—didn’t have to educate a reporter about what the Geneva Conventions were, so people could write quickly and with a great deal of precision; multiple bloggers and commenters allowed access to the wisdom of many minds.

Lee Peoples, Oklahoma City U. School of Law: Scholars may want to use blogs to influence courts: instead of writing a law review article that may take a while and may be missed by a court, you can wait for an issue to come along and then write about it at just the right time. We know that courts are reading and citing blogs. Attorneys blog about their cases: potential ethical issues.

Kennedy v. Louisiana: both majority and dissent said there was no federal death penalty for raping a child, but a blogger pointed out that there was a military law authorizing that penalty. Linda Greenhouse broke the story the next day in the NYT; the state petitioned for rehearing, and the Court ultimately amended the opinions.

July 2007-May 2009, 29 opinions cite blogs, mainly to support the court’s reasoning or analysis. 17: citing to support facts. Doug Berman’s Sentencing Law & Policy retains its predominance. Goal of citation: give the future researcher/lawyer/judge enough information to view the post as it was when the court looked at it. Bluebook rule has room for improvement; hangs its hat on date/time stamp. If everyone followed this, and assuming that the blog wasn’t changed or deleted, it could work, but courts aren’t following the Bluebook rule. Only 1 of 29 opinions followed the rule. 23 out of 29 included direct links—better approach than alternative generic link.

How do links get put into Lexis or Westlaw? Westlaw adds in spaces so the link doesn’t work. That’s a problem.

1 of 29 citations: blog deleted. Some bloggers change posts, not always signalled: 3 out of 29 had been changed in his survey. Best practice for courts (11 out of 29): include a direct quotation. That still leaves you looking for context/surrounding posts.

Need a federal/state rule about citation, not just Bluebook.

Unanswered legal questions: ethics, including ethics of blogging a pending case you’re involved in. What about judges using blogs as independent legal research? Not different from reading a law review article/treatise; if it’s by a true expert, it will have up-to-date information. But what about judges doing independent factual research? Citing blogs for facts seems to violate the prohibition on judges doing factual research on their own. Reversible error found in citing Wikipedia for facts.

What about judicial notice? No one’s asked a court to do this yet, though it’s come up with Wikipedia and courts are split. Also creates extra information for experts to look at: is it okay for experts to rely on blogs? Should courts look at experts’ blogs in evaluating what they say?

Margaret Schilt, Chicago Law: People don’t agree whether blogging is scholarship, teaching, or service, but it fits in there somewhere. Blogging is a medium; content determines whether it’s scholarship, and that’s judged by readers. If it meets normal standards for legal scholarship, then it is, and the question is whether it’s good or not. Howard Wasserman got tenure including his blog in his scholarship: as a complement and alternative to core legal scholarship.

Functions: testing ground for new ideas. Collaboration; commentary on recent events. Discussions that could have taken place in symposia or in letters columns. Related perhaps to the move towards the shorter form of legal scholarship—50 pages instead of 120. And law reviews have moved to occupy a niche between the law review and the blog: response pieces that are solicited/submitted, edited, and cited as part of the law review, but is more informal in tone. New collaboration of 7 journals, including Georgetown’s: “legal workshop” for a general audience that is screened and edited.

Cite checking is easier, because the blog is probably there shortly after the article is written. But what about 20 years later? Law reviews haven’t taken responsibility for archiving—“unpublished paper” is probably on file with the author, or thrown out because of lack of space. This may need to change.

Do libraries have an obligation to archive blogs? If they’re legal scholarship, and our mission is to archive legal scholarship, then syllogistically we do. But one could argue that what is scholarly about blogs eventually makes its way into published articles. Blogs test ideas/get feedback in the writing process. If that’s how blogs are being used, then what is good will end up in traditional scholarship and will be preserved. Is this good enough? There’s historical precedent: workshops and symposia were held for the same purpose.

Problems: sometimes the ideas never make it to publication, simply because of the pace of scholarly discussions. Also: variety of types of posting within blogs. Few blogs are 100% legal scholarship. Volokh Conspiracy/Balnkinization—do we want to put our resources into Ilya Somin’s Monday Sloth Bear blogging? Deleted blogs—the material won’t be available to other scholars if the writer decides to “stop clogging up the blogosphere.” How will the historians of the 2050s talk about public policy debates in the 2000s? We have newspaper records from 1900s; someone has to take charge of preservation issues.

Borgen: when he started, it was play; now there’s a big payoff if you do it right and a big risk if you do it wrong. His message: try out blogging in pretenure years, but don’t spend a lot of time on it. Doug Berman argued that pretenure profs should blog more, and a third person on a recent panel argued tht pretenure profs shouldn’t blog at all. Blogging is a medium, not one single thing. Many different styles. Blogs are like print media: there are journals, newsletters, etc.

Social networking will be a big change: Facebook has taken over what used to be part of the blogosphere. Twitter: Opinio Juris is talking about using Twitter. (Note: I automatically crosspost to Twitter, thence to Facebook.) People who approach blogs like law reviews tend to write bad blog posts. As we start to use new things like embedded video, we’ll have to learn new skills: being good on camera is completely different from writing a good essay.

Peoples: He is particularly concerned when courts cite blogs—the justification for preservation is much stronger.

Schilt: Blogs filled a niche that was previously unfilled: that demand is not going to go away, whatever the ultimate structure.

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