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Monday, April 17, 2006

Orin Kerr on Blogs and the Legal Academy

Orin Kerr, one of the finest of the law-bloggers, has posted his paper for the Harvard symposium on bloggership.  Read it while it's hot.  Here's the abstract:

This brief essay is a contribution to a symposium on “How Blogs Are Transforming Legal Scholarship.” It considers whether blogs have an important role in furthering serious legal scholarship, as well as how blogs can help legal academics contribute to public debates on law and politics. It suggests that the blogging format is not well-suited to advance scholarship, but that it offers promising possibilities for reaching a broader audience interested in law and public affairs.

It's a nice, short and sweet paper.  A couple of comments:  First, Kerr starts his paper by suggesting that the contributions to the symposium will likely have "a slightly self-congratulatory flavor.  When asked to opine on blogs and legal scholarship, law professors who blog will tend to present a rosy picture.  Call it self-selection, or maybe just self-interest."  He may be right, although if so it may be more a function of the conference conveners' selections rather than self-selection.  But it's a slightly riskier bet as an opener to the paper, I think, than Kerr suggests.  In legal scholarship, the race is often not to be right, but to be novel.  (Dan Farber has discussed this point quite well in looking specifically at constitutional law scholarship.)  Take a gaggle of lawprofs invited to a conference, and some number of them are sure to say, "OK, what novel and/or counterintuitive thing can I say about this subject?"  Kerr is still likely right, but I'm not sure I'd lead with my chin so much; maybe everyone will show up with papers that begin, "I'm sure the rest of you will be triumphalist, but here are my second thoughts...."

Second, I think there is a difference between asking whether blogs can advance legal scholarship, which is how Kerr puts it, and whether blog posts are themselves legal scholarship.  Maybe he is right that the format of blogs is not well-suited to the task of presenting legal scholarship, but that does not mean blogging may not advance legal scholarship.*  Let's say I write about the Religious Test Clause, or about covering -- both topics on which I have published blog posts, and which gave rise to forthcoming scholarly papers I have written or am currently writing.  Nothing prevents me from developing those thoughts on my blog rather than on scratch-paper.  Indeed, given that Kerr writes that scholarship is an iterative process of thinking and rethinking, writing and rewriting, and that he writes that commentary on one's drafts (from colleagues or at workshops) is a useful part of that process, he should appreciate that blogging is an excellent place to develop scholarly thoughts and receive instant commentary while working toward a final, fully integrated piece of scholarship.  Since many professors increasingly treat the workshop process (and SSRN posting) as a place to present only fully polished pieces, blogging may actually be an excellent means of serving the developmental purposes for which workshops and the SSRN were initially intended.  (And the early commentary may save us from costly errors that would otherwise only be spotted much later in the process.) 

Thus, even if my posts on covering are not a final work of "legal scholarship, the suggestions I receive in response to those posts (especially citations to other work I might want to read) will advance me in my work toward a final piece that is legal scholarship.  Moreover, while some scholars are skilled at retaining little ideas and cites along the way as different things occur to them, many of us are more organizationally challenged.  A blog post allows us to record a brief insight that we may call on more readily in completing a work of scholarship.

There is another way that blogging can advance legal scholarship, and that is by restraining one's scholarly agenda.  A legal scholar might want to write about issues both within and beyond her area of specialization; our muses may call us in all sorts of directions.  The opportunity to blog about issues that deeply interest us, but at shorter length, helps us to scratch the itch in question while leaving more of our time for the issues that lie more squarely within our respective fields.  (I personally think some of those posts come quite close to being real "legal scholarship," and in any event may represent a very significant advance in the forms of writing available to legal scholars -- why write a 40-page law review when you have precisely 1,000 words worth of interest and insight to offer? -- but I respect Kerr's more demanding definition.  I wonder, though, on which side of the line he would put the Harvard Law Review Commentaries and the Yale Law Journal Pocket Part pieces.)    

[A little more after the jump.]

Finally, I wonder whether Kerr does not fall prey, to some degree, to the tyranny of form.  Certainly the blog format as generally practiced does not easily accommodate legal scholarship format as generally practiced.  But just as many have challenged the latter format, so the former format is not a prison.  If I wanted to publish longer-form posts on the blog, I could.  Perhaps fewer people would read it, but nothing prevents me from doing so.  If I wanted, for that matter, to daily post new iterations of drafts of my papers, I could.  Nothing about blogs inherently prevents us from publishing long-form scholarship on the web, any more than anything in the print nature of law reviews prevents us from putting out a journal that only published pithy little 250-word rants with occasional mispelings.  (Flowers for Algernon, anyone?)  I think Larry Solum, in particular, has written some very long pieces on his blog that are suitable for publication in law reviews, or would be if he was willing to lard them with footnotes.  So I think Kerr may be right that what we generally like to do on blogs is not the same as what he means by the classic form of legal scholarship; but nothing formally prevents us from using the medium for that purpose.

I'm still thinking about what I think about his thoughts on the public-intellectual side of law-blogging, but I'll leave it at that.  Needless to say, I enjoyed the paper, as I enjoy all his work. 

* Kerr refers later in the paper to the ways in which blogs may "influence" legal scholarship, but I think he means something different than what I am discussing above.

Posted by Paul Horwitz on April 17, 2006 at 05:29 PM in Blogging | Permalink


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The fact that blogs often get a lot of Google traffic also has uncertain significance. On one hand, it opens up a very different question: Blogs as tools for scholarly research by users, instead of blogs as tools for advancing scholarship among the bloggers themselves.

Posted by: paper shredders | Feb 1, 2007 2:27:14 AM

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