Blogging Ideas & Student Law Review Notes

by Duncan Hollis

It’s the time of year when a fair number of second year students doing law review are contemplating the project that lies ahead — drafting a note of their very own. Several students have asked me for advice on the writing process, and I’ve been pleased to refer them to a new book by Austen Parrish and Dennis Yokoyama, Effective Lawyering: A Checklist Approach to Legal Writing and Oral Argument. It’s a succinct and easy-to-read distillation of the various writing projects lawyers encounter, including a chapter on academic writing.

This year, moreover, I’ve gotten a new question on two separate occasions (once from a Temple student and once from a non-Temple student): “Would you mind if I wrote a note that builds on a blog post you did?” I’ll admit to having a bit of a mixed reaction to the question. On the one hand, I sometimes write a blog post as a way to test an idea that I plan to turn into a more scholarly work. In those cases, I’d be reluctant to have my idea pre-empted by an intervening student note. Indeed, I’ve often thought that by posting about it, bloggers are able to lay some proprietary claim to an idea or at least put it “on reserve” so to speak as something that they can claim as their own for a reasonable period of time. On the other hand, many times I write the blog post because an idea or story interests me and I’ve no larger agenda, in which case why not let someone else run with it?

So, which is the right approach? Indeed, should students feel that they have to check in with a blog post author for affirmative permission to rely on that post at all? How should students (or even, dare I say it, other academics) who get an idea from a blog post credit the post’s author for inspiring their own work? For myself, I’d think at a minimum a law review note (or article) that advances an idea dervied from someone else’s blogging needs to say so by citing the blog post. Of course, in doing that, it starts to make at least some blogging look a whole lot more like scholarship, which some have resisted on grounds that are not entirely unreasonable, although certainly open to challenge.

I’d be interested in comments on whether others have had similar experiences or views on how best to handle this issue.

http://opiniojuris.org/2007/09/20/blogging-ideas-student-law-review-notes/

6 Responses

  1. Duncan,

    I think if you put it out there as an idea, others are free to run with it. Sure they should give credit where credit is due, but that shouldn’t stop a student or professor from writing an article based on the kernel of an idea in a blog post. But I would add that just because someone else is writing about a topic based on your idea, I don’t think that would pre-empt you from offering your own insights about that topic.

    Roger Alford

  2. I really support the idea that blogging ideas to test or to pre-empt your ideas for a more scholarly work. This is one of the best ways to collect critics, comments to build a stronger research pillar.

  3. Duncan,

    This is very interesting, and probably something that’s of interest to lots of academic bloggers. I don’t know if I’m quite as permissive in temperament as Roger seems to be, but it depends on what was posted and what is being claimed from it. Do you mean a subject or current development that you’ve brought to the reader’s attention (suggested by “story”), or a kind of novel claim or thesis about it (suggested by “idea”)?

    If the former, my initial take is that you don’t have any kind of right, and that nothing except a sense of etiquette or decorum should stay anyone’s hand — probably good behavior entails asking first, but equally entails not refusing absent some compelling reason.

    If the latter, depending on how much the note really “builds on” the post, my initial take is that the post may seriously undermine the note’s originality — at some point, preempting it. But by the same token, it would simultaneously undermine the originality/contribution of whatever you would want to write subsequently. This kind of preemption is more of a novelty test than a property right.

    Speaking generally, I suppose that blogging jeopardizes the academic etiquette about these things. If I know you’re working on something, and you’ve shown me a paper or talked to me about your idea, I’m not going to take it . . . I might get interested in the subject, and eventually develop a different angle, but that’s it. What’s different about Opinio Juris? Well, for one thing, it’s not necessarily obvious that you’re going to do anything with the subject (unless, of course, you’re clearly making some kind of distinctive/contestable claim, or you express your intention to write further about it). You’re also not taking me into your confidence in any way, and I know that lots of others who don’t know you may be thinking about the ideas and writing. So, personally, I would still probably feel estopped from developing an argument you’ve set out, and accord you broader dibs than mere originality concerns would dictate, but I can see how someone else might not.

    If the ideal types are (1) you telling a colleague or academic peer about some idea you have, on the one hand, and (2) jotting down a note and thumbtacking it to a kiosk in the town square, on the other, blogging is a lot closer to #2. Its strength in getting ideas into circulation is probably inevitably its potential weakness as well. All this said, I find it kind of comforting that would-be authors are asking. And it shows your influence!

  4. I agree with Roger – if you put something out there then it can be used but, of course, the normal rules of academic writing apply and acknowledgement or citation is important. Sometimes a blog post can make one think about something which results in a piece of writing that in fact does not build on or use the actual subject matter of a post – is citation appropriate there? I don’t think so, beyond perhaps a note of thanks in the acknowledgments. If someone takes the idea and the stance from a blog post, however, then there is an obligation to cite and even, perhaps, to quote directly. I would think the rules about blog posts in this way are more or less the same as the rules about any other academic writing, op eds etc.

  5. Agree with Roger and others. Sometimes two people come independently to a similar idea and each of their reactions have the effect of comforting the other in thinking the ideas are not crazy. Also, there are non-linear results from a post. The prudent thing I tend to do is to acknowledge where the idea came from or some help that was provided by the post (or the cocktail conversation for that matter). I think it is also good to use that same etiquette in posts one makes (acknowledge where an idea one is posting is coming from).

    This is an experimental space where exchange came happen. It is a tremendous way to enhance understanding of different points of view on a regular basis.

    Best,

    Ben

  6. When students are casting about for topics, I recommend that they use current-awareness tools. These include standards like Current Index to Legal Periodicals (what have people been writing notes and articles about lately?) and U.S. Law Week and other newsletters (what are hot cases? are there circuit splits noted? is there pending legislation in an area that interests you?). In recent years, I’ve also suggested following law-related blogs.

    If a student learns of, say, a circuit split or an interesting case that has been granted cert. from a blog, the student doesn’t need to gave any more credit than if he or she learned of it from U.S. Law Week.

    If your blog post expressed an opinion with analysis (“This strikes me as unjust and here’s why…”), then a crediting footnote might be due — the more analysis, the more need for credit.

    I think a reason a lot of us blog is not to own issue or ideas but to get people thinking. If your posts are doing that, it’s a great service. You should be pleased that your blog is working.

    And if it’s a meaty issue, it’s very unlikely that the student note will preempt any published work you eventually produce: you’ll have something different to say.

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