16 Jan Law Blogging as Law Making
For 10 years, Opinio Juris has served as a forum for short-form legal scholarship. Many posts were short and simple, quickly flagging a particular development or issue and bringing it to the attention of international lawyers across the globe. But other posts were far more in depth, analyzing a complex legal issue with great subtlety and persuasion. What strikes me about the longer posts is that they often read like mini-articles, enhancing and enriching legal scholarship with shorter articles that might not–or could not–be explored in regular law review articles. Producing legal scholarship on a daily blog allows for an immediate impact that would be impossible in a law review or law journal with a 6-month (or even 2-month) publication cycle.
Opinio Juris posts have been cited in many law review articles. A simple search for opniojuris.org in any law review database will pull up hundreds of examples of law review blog posts that are now cited as scholarship alongside treaties, cases, and more conventional articles. Opinio Juris postings also impact the daily practice of law in important and urgent cases. To name just one well-known and recent example, Kevin Heller wrote about the U.S. drone strike against Anwar al-Awlaki and queried whether it violated the federal murder statute. It was widely reported that Kevin’s post prompted the Office of the Legal Counsel in the Justice Department to substantially revise their draft memo regarding the lawfulness of targeting al-Awlaki. If that isn’t real-world impact, I don’t know what is.
I like to use blog posts, on Opinio Juris and elsewhere, to sound out ideas that eventually make it into law review articles. It’s often easy to sketch out the basic contours of an argument and see what kind of reaction it generates. Then, when it comes time to render the argument in article form for a law review, one already knows which aspects of the argument will generate the most push-back and will require a stronger defense. In many cases one can predict this in advance, but in other situations the audience reaction is genuinely surprising and counter-intuitive. In this way, law blogging improves legal scholarship.
For most of the last 10 years, I’ve been a reader of Opinio Juris, not a blogger. My migration from the former to the latter is relatively recent. Ten years from now, I hope we are looking back on another decade of compelling and intense discourse.