Sunday, July 26, 2009

The Future of Today’s Legal Scholarship, Part 3

Panel 2: Blogs and Reliability

Tom Goldstein, Akin Gump: Startup costs matter: you don’t need to find a publisher to get your words out. Incentive system: blogs are widely linked to and content behind walls is not, which means this form is here to stay for people concerned with distribution.

Goldstein is committed to blogging, and thinks you should regard them as utterly unreliable, and not a reasonable, permanent source for tracking information and materials. He spends $100,000 a year on SCOTUSblog, whose staff includes a 40-year veteran Supreme Court reporter. Our reputations and livelihood depend on the accuracy of the blog. Yet he has very little interest in determining the underlying accuracy of the facts in the documents he puts up, and it’s in the nature of blogging to write quickly.

Blogging is valuable. If you were to take away blogs associated with news organizations, like the blog of the Legal Times, there isn’t a better blog than ours journalistically—we have journalistic independence and other editorial measures. And yet if we don’t verify that a document really is “the opinion” in a case or “the record” in the case, that should strike fear in the heart of anyone concerned with long-term historical accuracy—he finds these on Google or Wikipedia. If he doesn’t verify the document, he promises you that no one else does either.

A blogger is not pursuing library goals. A blogger is pursuing the (utterly misguided) impression that other people care about what s/he has to say—that’s why s/he gets up and writes day after day. Many blogs are abandoned: people think they will have a lot to say but run out of energy. The mindset that gets past that is an egomaniacal belief that you have something to contribute, or the equally misguided view that there are positive business implications. (SCOTUSblog has brought in possibly 2 cases over 6 years.) The motivations behind blogging don’t generally correspond with the value set of having a permanent, accurate archive in which the accuracy of the underlying materials cited is also of concern. Whether or not that’s Barak Obama’s birth certificate is beside the point; some bloggers are convinced it isn’t.

Comment: Is this a library concern? It’s a scholarly concern, but how many librarians routinely investigate whether the books they buy verify the accuracy of the underlying materials? Well, we take scholarly publishers as filters for that sort of thing, though of course they aren’t because they don’t cite check the way law reviews do—rant about what law reviews think is cite checking excluded—and it’s fair to say that libraries treat books as independent objects without worrying too much about the sources unless a specific controversy develops. (And of course this is tied to linking culture: we wouldn’t expect a book on law to contain entire copies of the underlying legal cases the way we expect links to the full text of court decisions online.) On the other hand, there is something to be said for relying on publishers and academics to internalize their own norms of verifiability, so I agree that verifiability is implicit in book culture; Goldstein is pointing to something that may be a more salient concern now (though I’m not sure how often anybody fakes a district court opinion, or even fakes a document that appears on TMZ) given the collapse of gatekeeping.

SCOTUSWiki: unlike the blog, doesn’t expire in 12 hours—the mentality of a blog post is that in a week the post is less valuable even if it is about a case that won’t be argued until 6 months from now. A sense of permanent value comes from a law review, or possibly from a non-blog internet source. The scroll function denigrates the longterm value of a blog post.

“Permanent” in internet terms means “it will probably be there tomorrow.” He hosts the briefs and other documents in upcoming cases, but he has no idea where those bits really are or what would happen if the server crashed. Somebody representing themselves as being from the Library of Congress asked to save a copy of his site, so you can find the early days of SCOTUSblog at and the LoC. But he doesn’t know anything about; he cares about the blog and about accuracy, but he’s still pathologically clueless about preservation.

Toby McIntosh, Director of Editorial Quality Review, BNA

He’s a traditional media guy, used to responding to criticisms of traditional media. (Did you know there was a Furniture Law Blog?) Reliability of documents: most blogs don’t bother to link to documents at all. We almost never take documents from blogs, but do quote from blogs. Different courts correct opinions different ways, which means we have to verify links—don’t want to link to an opinion that was subsequently amended. We may have to write a new story about a new deadline for comments in an administrative proceeding: trying to be a publisher of record, doing stories on technical correction amendments to laws.

Draft bills: when they get draft bills, they have to make sure that the source is reliable and up-to-date.

Blogs don’t tend to have corrections policies. SCOTUSblog does; it’s a sign of integrity that you acknowledge mistakes.

Unlike blogs, we have a mission to be comprehensive. And neutral. We’re trying to get into the area of shorter-than-law-review articles. Have trouble dealing with things like anonymous commenters (among which he includes pseudonymous, which I would not—if someone consistently posts under a particular pseudonym, that person has an identity; could you pick me out of a lineup just because I post under a particular name).

The democratization of legal analysis: at what point do we say that a person’s viewpoint isn’t worth reporting because of lack of credibility/credentials? Editors troll for quotes, ideas and concepts, trying to find useful/relevant materials. University of Montana law students did hour-by-hour coverage of an important environmental case: no for-profit publisher could ever do that. We try to verify blog facts—many editors don’t want to quote blogs but want to call the blogger and talk. Some BNA publications are trying columns about what’s going on in the blogs, but that hasn’t been very successful yet (we read so you don’t have to model). We’re looking for experts, whether they’re blogging or not, and plenty of experts wouldn’t touch a blog.

Mike Wash, CIO, US GPO

The challenges of blogs have been present from the beginning of the internet. Authenticity (including proper versioning), permanency, public access and availability for printing/copying are key principles. The same principles can be applied to blogs, as well as audio and video.

FDsys: a content management system, controling digital content throughout its lifecycle. They do know where their bits are, unlike Goldstein. It’s a preservation repository, following archival standards—preserves signature blocks on legislation, creating a trail for each actual document. It’s also an advanced search engine using extensive metadata. Increased preservation and search capacity planned for the future.

Given the rate of change of tech, many concepts of preservation used for federal documents weren’t even being considered 15 years ago—blogs may be in that state today. Maybe there could be signatures that could travel with a blog post, providing a chain of custody.

Goldstein: Bloggers, as distinct from other publishers, have less time/willingness to invest time, less money/willingness to invest money, and are interested in boldface instead of subtle. Wash’s work is timeconsuming, expensive, and subtle. The importance of a permanent archive is transcendant for the nation as a whole, but not immediately apparent to the ordinary blogger. Sounds great to librarians, but not of much concern to average nonacademic bloggers.

McIntosh: Ordinary people won’t care until someone distorts a document to scam them.

Goldstein: Importance of reaching out to blogging culture and transmitting these values.

Q: are blogs considered federal documents that need permanence?

Wash: blogs are not government documents under our current rules.

Goldstein: A different reliability question: bloggers blog about things they’re interested in; we don’t tend to be comprehensive (though SCOTUSblog is now)—they might stop and take a break. Collectively the group is likely to be more comprehensive than more permanent journalistic institutions, but individually they are much less reliable. An accurate, well-vetted historical repository is a scary prospect, just because of the finances. Is not sure institutions that care about integrity are going to be able to survive (thinks law reviews are ultimately unsustainable).

Q: A CC license would help preservation.

Goldstein: He’s never asserted copyright over SCOTUSblog—the idea that someone feels a need to license it is one of those things he’s never thought about.

Q: As the person responsible for a preservation effort, being advised by Stanford lawyers she trusts, she doesn’t collect material for preservation without explicit permission, which is their interpretation of the DMCA. If you wanted to do something really simple to allow people who do care about preservation to do so, a CC license would be the thing. (This exchange reminds me of Niva Elkin-Koren’s criticisms of the CC license as feeding into a permission culture.)

Goldstein: His point in being hyperbolic about the unreliability of blogs is to emphasize that many bloggers don’t think about these things, even though SCOTUSblog values its reputation.

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