Brian Leiter’s contribution to Yale’s Pocket Part is Why Blogs Are Bad for Legal Scholarship. Here is a taste:
Blogs, like markets, are hostage to the ignorance and irrationality of their most visible proprietors, as well as to that of their readers, and the costs of those cognitive limitations are greatest when blogs purport to critique serious scholarship, a task in which the ability to sort wheat from chaff often turns on intellectual skills that are not widely distributed, even among academics. My guess is that Judge Posner has not, understandably, spent much time actually reading the blogs that are out there. I have seen relatively little evidence of correction and refinement of ideas, facts, and scholarship, and much more amplification and repetition of existing prejudices and ignorance, or, occasionally, feeding frenzies on trivial mistakes in the mainstream media.
Of course, there is much to what Leiter has to say. There is as much really silly blogging as there are really silly law review articles–and that’s saying quite a lot. I would be a little less dismissive of the relationship between law blogs and the mainstream media than Leiter–the front page story in the New York Times that acknowledged Jack Balkin and Howard Bashman’s criticisms of the recent District Court opinion on the National Security Agency surveillance program was not about a "trivial mistake." It seems unlikely that the Times would have realized the seriousness of its own mistake (in a timely fashion) without blogs.
But this is really beside the main point. It seems to me that it is a very serious mistake to formulate a question such as "Are blogs good or bad for legal scholarship?" Blogs or weblogs are a medium–a particular form of self-publication on the World Wide Web, an important subdoman of the Internet. Ask yourself whether the equivalent questions about other media are sensible:
Are serial publications good for legal scholarship?
Is radio good for legal scholarship?
Are photocopied manuscripts good for legal scholarship?
Are newspapers good for legal scholarship?
Are monographs good for legal scholarship?
I doubt it would even occur to anyone to ask these questions, but there are more precise questions that might be interesting. Many law professor blogs are only loosely connected with legal scholarship at all–they bear a similar relationship to legal scholarship as does the op/ed in a newspaper or an interview on radio and television. Only a few law professor blogs have a focus on legal scholarship, and even those that do, frequently are more concerned with the legal academy as an institution than they are concerned with the substance of legal scholarship. Thus, Leiter’s Law School reports has a mix of subject matters, but only rarely makes comments in the area of Leiter’s own scholarly competence–philosophy of law. Asking whether blogs like Leiter’s are good or bad for legal scholarship is like asking whether the Chronicle of Higher Education or the Times Education Supplement is good for scholarship in higher education. There really isn’t even an interesting question here.
Leiter makes an important point about philosophy blogs–which tend to have a more substantive focus than do many law blogs. (For an example, just look at the next post down–from a marvelous philosophy blog, "The Garden of Forking Paths.") Another really interesting example of the potential of the serioius academic blog was the recent multipart discussion of Derek Parfit’s new book, Climbing the Mountain, on Pea Soup. This kind of blog is an indication of the potential that disintermediation and the Internet can have on scholarship. The same potential exists for legal scholarship.
I’ve written at greater length about these issues in Blogging and the Transformation of Legal Scholarship. One of the points that I make in that essay is that "blogging" is a red herring–the really interesting trends are disintermediation, open-access (the decline in copyright’s role in the dissemination of scholarship), and the emergence of new "short form" vehicles for the expression of scholarly ideas. If blogs are important at all, it is because they express some of the underlying transformative developments.
Here is the abstract of my paper:
Does blogging have anything to do with legal scholarship? Could blogging transform the legal academy? This paper suggests that these are the wrong questions. Blogs have plenty to do with legal scholarship – that’s obvious. But what blogs have to do with legal scholarship isn’t driven by anything special about blogs qua weblogs, qua collections of web pages that share the form of a journal or log. The relationship between blogging and the future of legal scholarship is a product of other forces – the emergence of the short form, the obsolesce of exclusive rights, and the trend towards the disintermediation of legal scholarship. Those forces and their relationship to blogging will be the primary focus of this paper.
The transition from the "long form" to the "short form" involves movement from very long law review articles and multivolume treatises to new forms of legal scholarship, including the blog post, the idea piece, and the use of collaborative online authoring environments such as wikis. The transition from exclusive rights to open source requires publication in formats that provide full text searchability and the use of copyright to insure that scholarship can be freely downloaded and duplicated. The trend toward disintermediation reflects the diminished role of traditional intermediaries such as student and peer editorial boards and the growing role of search engines such as Google.
These trends are the result of technology change and the fundamental forces that drive legal scholarship. Each of the three trends, the short form, open access, and disintermediation reduces search costs and access costs to legal scholarship. Reducing costs has other important implications, including the facilitation of the globalization of legal scholarship and the reduction of lag times between the production and full-scale dissemination of new scholarship.
Each of these important trends is facilitated by blogs and blogging, but the blog or weblog is only one form that these trends can take. Blogs express and facilitate the fundamental forces that are already transforming legal scholarship in fundamental ways.
Read Leiter’s piece!