Many Generalizations about International Law Professors …

by Kenneth Anderson

… in my response to Eugene on the First Amendment and free speech and the HRC, over at Volokh.  I’m not cross-posting it here because it is somewhat specific to Eugene’s post.  However, it is filled with many generalizations and unsupported assertions about what I think international law professors, taken as a community, think about free expression and the specifically American First Amendment and hate speech.  I wouldn’t want anyone to think that I was hiding the ball, so to speak, in saying one thing at Volokh and another here at OJ.

However – quite separate from the not-entirely-kind things I say about Our Intellectual Community – and in response to the complaints of commenters that I’m making unsupported assertions, I have a little update on the ethics of blogging and wondering when it’s okay to make unsupported assertions.  For those of us who blog, it’s often a question – it’s a blog post, after all, not an academic article, and if you had to do it like true scholarship, you wouldn’t blog, or at least would only blog when you had done lots and lots of research.  But it invites commenters to say, what’s your support? Sometimes – as in that post – I want to say, this is my subjective view, based on having been active in this community for a long time, although your mileage may vary.

Which is a reason, as I also say, I’m skeptical about citing blog posts in actual scholarship.  There is some law review piece, I believe a student note, that cites me from OJ as authority for the proposition that the recession had gone worldwide.  The full text of the blog post, as it happened, was pretty nearly, ” The recession has gone global.”  It linked to a news article of about three paragraphs.  This gives me pause.  And yet there are plenty of blog posts that I do think citable, including some of my stuff on proportionality and the laws of war, just war theory, theorizing about Michael Walzer’s work, and, of course, robots.  Many bloggers, including folks here at OJ, are much more academic in their approach to blogging than I am, and it really is short form scholarship.

But I am curious about how readers see the ethics of blogging, as it were, on these kinds of questions.  Here’s just that chunk, largely unrelated to the rest of the post, that I stuck up as an update at the end.

I see I’m taken to task in the comments for attributing things to the “international law community” or IL professoriat at large without naming names or otherwise backing this up.  I mention it because this is a fairly common charge in comment threads about various kinds of generalizations in blog posts, mine and zillions of others.  Sometimes I think it a fair point, other times not.  This is really a longer, separate post about ethics of blog posting, but actually, at least on this occasion, I don’t think – contrary to the comment – that I owe any recitation of particulars.  This is not an academic paper; it’s a blog post.  I’m asserting a generalization – “if my confreres were honest about it” – on the basis of my long experience with a particular academic community.  Sure, your mileage may differ.  But no, look, in a blog post, I don’t think I have any obligation to spend another five pages putting in particulars.  If that means I’m just asserting it on my personal authority, nothing more, that’s right, and fine by me.  If I thought I had to provide academic chapter and verse for stuff in blog posts, I wouldn’t blog.  If you conclude, on the other hand, that I routinely really have no idea what I’m talking about, then presumably you’ll do that “exclude x” function; all good.

That, of course, is partly because I think I do know this particular community pretty well and think I’m right about that – not as some hidden agenda of whatever, nor some dark conspiracy, but simply because – without using up time of my research assistants, but simply consulting my own sense of this scholarly community (so, again, if you want to dispute this for not having so much as run a Westlaw search, sure, you can, and I’ll merely shrug and say, well, you can’t please everyone) – I can’t think of very many occasions on which US First Amendment standards have been defended as the right thing, whether for the rest of the world or, as my impression goes, even for the United States.

I haven’t read everything, and perhaps there is some body of literature out there I’m unaware of – but it is not really very likely.  The feelings in the international law professoriat, to judge by its scholarship at least, or my distilled recollection of it, are that the jurisprudence of the First Amendment does not take hate speech seriously enough.  If that is an accurate characterization, even if merely on my take of it, then I think that if you are Eugene, and hold his views on hate speech, that is not irrelevant information to you.

But, more broadly, in the ethics of blogging, as it were, the fact that I have not “named names” or spent five pages documenting what is plainly my own view of a community in which I have been a long and active participant is not an issue.  One might dispute my characterization, but merely to say ‘you didn’t document your subjective impression’ does not actually move me, at least not when it comes to blogging.  This is a very important reason, however, why I am skeptical about citations to blog posts, at least on the ethics with which I offer them, in actual scholarship.  I’m not doing scholarship here.

4 Responses

  1. Though, I’m hardly an authority on scholarly ethics, I’d put a blog post on the “same level” as working papers or a news article. You post your thoughts to the blog because you want feedback. The post may be a well-researched position, but it’s inherent in blogging that one is looking to see if others think the same way the blogger does. I personally cannot look at a blog post on a political issue and believe the author post is representative of their position on an issue, because the use of comments and e-mail suggest they are looking to improve their argument or see if their thinking is in the right place. It’s also assumed that blog posts have significant less time put into research, and it’s very conceivable that the author, in an effort to put something out for people to read, missed an important part of the research in their post. For a scholarly article or book on the other hand, the research is assumed to be (near) exhaustive.

    Blog posts certainly cannot be seen as equivalent to scholarly articles, because bloggers frequently act as their own fact-checker–there is little peer review. If I were to cite a work of yours in a scholarly journal, the reader knows, through the reputation of the journal, that the article has fact-checked. But a blog post, there is no such guarantee.

  2. Ken,

    I’m happy to name at least one name that agrees completely with you on the First Amendment issue: mine.  I’m obviously a product of American legal education, but I will take the US approach to free speech, including hate speech, over the rest of the world’s in a heartbeat.  I am completely opposed to criminalizing Holocaust denial, religious intolerance, and the like, and the US should not deviate from its basic First Amendment principles in order to placate the international community. (Though, for the record, I find that a non-existent danger, even if the US is a member of the HRC.)

  3. Mr. Anderson,

    why anyone would assume a blog post (even one in the academic circle of blogs, lawblogs, etc.) is in any way similar to a thoroughly researched article in a scientific magazine, is beyond me. Instead, I question, in turn, the authority of the commenters who question your “fact-checking”. How do they justify holding blogs up to the same standards as academic articles?

    There is no indication for a requirement to only state absolute facts or utterly grounded opinions in this environment. The fact that they liken blogs to scientific texts (althogh one might find quite a few similarities, considering the quality of the majority of posts here and elsewhere in the law-blogosphere) shows me how little they understand the concept.

    Originally, a blog was more of a semi-public diary. Personal views and opinions, not scientificly proven facts were the primary content of the first web-logs. This hasn’t necessarily changed much, for example, many people in the IT-industry use their private blog to express opinions and make predictions about their work that they couldn’t make in their professional environment.

    Equally, no post, well written by highly proficient scholars as it may be, can be held up to the standards of any sort of “real” scientific work. While it may serve very well to gain a new perspective on a subject, especially because it is an expression of an academic scholar’s opinion, it will never be cited in court, simly because it is “just” a blog.

    In the end, everyone who doesn’t agree with the notion of different levels of research-effort-requirement in blogs and law-papers can always chose the opting-out method. Close your browser-window, have a nice day.


  4. That whole post at VC was magnificent.  It, and other writings like it (an article by Darryl Robinson comes to mind) gives me hope that reason may yet prevail.  As far as the attempt to deflect atttention away from the substance and onto the procedure of blog v article, that is not only preposterous on its face, but would never have been mentioned had your conclusions conformed to those of the professoriat you criticized.  Thanks for the inspiration.

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