Blogging and the Impact of Legal Scholarship

Nancy Rogers, AALS President and Dean of Ohio State Law School, appears to take the law professor blogging phenomenon seriously. For those, like me, who missed her presidential address at the AALS meeting this January, she focused a large portion of her talk on the challenges and opportunities of “e-scholarship” and blogging. Here is an excerpt:

I propose that we focus even more of our joint efforts in the coming year on examining changes that affect legal education and assessing, even considering modifications in, our roles as professors and law schools in response to those changes. A number of changes fit this category — one such change is the internationalization Carl Monk and Judith Areen spoke about on Tuesday as they described the new International Association of Law Schools.

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I will mention two other changes and some of the many questions that we might raise about our roles as the result of the changes.

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The first of these is “e-expertise” — a term that encompasses blogs and more. There may be potential through electronic media for law faculty to have more influence on the law than we now have with our expertise and scholarship. If that potential is real, are we willing to change the ways that we judge scholarship in order to encourage e-expertise?
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On the topic of e-expertise, just to get you thinking, here are a few comments by our colleagues in legal education and the legal profession:

• Professor Daniel Solove estimated last year that more than 300 law professors blog. In addition, faculty and even law reviews are creating electronic treatises, on-line journals, SSRNs, and vlogs (video logs).

• A former judicial law clerk, Michael McClintock, reports that there is evidence to support Judge Harry T. Edwards’ charge that legal scholarship has become less useful to the bench. According to McClintock, the courts’ citations of law reviews declined by nearly half over a 20-year period toward the end of the last century.

• Professor Lawrence Solum reports that the courts, including the U.S. Supreme Court and federal appellate courts, are citing blogs.

• Professor Doug Berman maintains that he has gained more useful research and unique insights in two years from the informal feedback from judges and others to his sentencing blog than he garnered from a decade of traditional research.

Those involved in electronic scholarship point out that hard choices lie ahead. Electronic scholarship, like all scholarship, takes time. Something will have to give.

Others point out the dangers of “counting” electronic postings as scholarship. (Here, we are usually referring to electronic postings by the author, as opposed to law reviews on line, for example.) The speed carries risks in terms of thoughtfulness. In some modes of e-expertise, the lack of an intermediary to select articles and to verify sources may result in difficulty assessing the postings’ value as scholarship, and it may be timeconsuming to make the assessments.

As we ask whether and how to “count” e-expertise as scholarship, we ultimately also face the question of our role as legal scholars and gatekeepers to academia. How important is it, for example, that our scholarship affects the law? The AALS and National Law Journal will together sponsor open symposia with the profession during the coming year so that people can identify the key issues presented by e-expertise and promote their discussion again at next year’s meeting.

Interest in blogging and questions about its role in the creation and preservation of scholarship and in influencing practice and policy-making loomed large, as Peter noted, at this year’s Annual Meeting. Two years ago, Chris, Julian and I passed relatively anonymously through the halls of the meeting, where only a handful (thanks Ken Anderson!) of other professors had heard about this then-new blog. Within the past two years, much has changed. Not only has our masthead grown, but each of us has found ways to integrate the blog with our own and others’ scholarship, with practice, and with advocacy and policy-making communities. As our readership has grown, we have also become more “international” — currently averaging around 25 percent readership from outside the U.S. Where this experiment in new technologies and virtual communities is heading remains unchartered territory for academia. (See Roger’s post on this topic from last April.) But that’s what makes it all the more exciting!