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Thursday, June 01, 2023

A Few Thoughts on Our Delightful, Antiquated Enterprise of Blogging

Brian Leiter writes today in his indispensable (?) Leiter Reports blog that "While Twitter has taken a toll on blogs generally, this one is still going remarkably strong, averaging well over three million unique visitors per year, so it seems a good time to begin phasing into blog retirement while it's still widely read and influential." He adds that it will be a "multi-year phasing." It occasions a few thoughts on the nature of the enterprise. The first, quite simply, is that I am sorry. Not being a philosopher, my reading of that blog is a little like watching a game of inside baseball while not knowing the sport well. But many posts are for more or less general readers, and they are interesting and spirited. Indeed, I wish his law school blog was more like his philosophy blog, that it more frequently tilted against whatever he may see as failings in our own corner of the academy. But it has long been a valued daily read, and if and when the time comes for it to go I shall miss it. (I suppose I could always read the Daily Nous. But I jest.) 

Second, I continue to believe the legal-academic blog fills a potentially useful space between social media and full-dress academic writing. The most important way it does so is not, as it once was, in terms of immediacy, but in terms of length: not everything worth saying is worth saying, or can be said, in 280-character stretches. (In my view, nothing worth saying can be said in 280-character stretches.) The second value it serves is its availability as a space to write about the academic life. I find academia greatly interesting as a sociological, anthropological, literary, and economic enterprise. It's in the nature of things that most articles don't say much that's new or terribly interesting, novelty claims notwithstanding. The job of the scholar as reader is thus largely one of sorting and winnowing. But how we write (or teach, or serve, or lateral, or govern, or fail to govern) I find endlessly fascinating. And all this has a direct relationship to what we write, what we don't write, often enough to why we write, whether and where this writing is published, and how it is received. It is a truism, albeit one that is selectively recalled and applied, that judges are political actors, affected by their context and bias, by the cases that come before them or are ignored or avoided, by the means of production of both judges and cases, and so on. Of course the same is true of legal scholarship, among other things we do as academics. Selectively applied, as I say. I hear a great deal about Koch money, for example, and almost nothing about Proteus Fund or Soros money; writing in non-conservative spaces about the influence on the legal academy of left-liberal heirs and plutocrats tends to be acceptable mostly if it's devoted to the past, such as writing about the influence of the Ford Foundation on clinical legal education in the late 60s and early 70s. But our choices are influenced by much more than money, and I would like to see more writing about how fads, fashions, the love of fame, and other factors leave their fingerprints all over what we do, rather than treating our work as if it emerged fully grown from Zeus's head.

There's room for more full-length writing about this in legal journals. But it's understandable that most of us, most of the time, prefer to write scholarship about the ideas themselves and not about their production. The latter can seem self-indulgent, and in any event most scholars are more interested in ideas themselves, whatever the sources of their encouragement, mediation, and corruption, than about the production of those ideas. We're not really a reflective or introspective bunch. (Given our long interdisciplinary trend, one would think there would be more room to hire and publish sociologists and anthropologists of the legal academy. But those are not the most common fields we hire from, and most of those we do hire write about the world outside their own gates. In raw numbers we probably have more people qualified to study the nature of our own enterprise than ever before, but the high-water mark of writing of this sort passed when the Crits fell out of favor.) It also might seem rude or perilous--another way in which the behind-the-scenes element affects what is seen in print. And there's yet another factor that suggests the sociological/means-of-production influence on what we do as legal scholars: such writing would have to be seen as interesting by the law students to whom we have, oddly, delegated the job of making publication decisions. Moreover, a scholar who went down that path might well be cautious or selective, given that the students themselves would surely be a subject of study, sometimes with unflattering results. (Mutually unflattering results, since student choices reflect the willingness or unwillingness of faculty to do something about them.) That kind of timorousness doesn't vanish because the space for writing is the blog--or, for that matter, Twitter, where the audience is larger and the timorousness is if anything much greater--rather than a law journal. Nevertheless, one sees more writing about these kinds of subjects in blogs than in law reviews, and I would miss it if it vanished.

Third, for me at least, one generally unstated reason to keep Prawfs going is our departed, murdered friend Dan Markel. I like it that his baby is still here. Not that I doubt Dan himself would have taken to Twitter eagerly and over-enthusiastically. But even if that makes Prawfs itself rather a historically contingent artifact, I still feel the desire and obligation to keep it alive, long past that hoped-for time when the last culpable Adelson is in prison.

Finally, I'd like to add a word to what Howard wrote on this blog a few weeks ago about legal blogs (and the legal academy generally) and political diversity and polarization. Howard asked whether Prawfs "does okay on this" and answered "yes," with room for improvement. I was sympathetic to this view, which was discussed entre nous before appearing in a post. I still am. Granted, talking about diversity among a group of small-l liberals ranging in their views from A to C may be like describing M&M's as varied because there are so many colors. But within that category, there are political and subject-matter differences among us. We don't all write with the same frequency, and that matters. But Howard's posts are different from mine, even apart from questions of economy versus excessive length, just as Howard's posts are different from Rick's and Rick's are different from other-Rick's. 

That said, I don't think I fully appreciated at the time the importance of what we write about from our varied perspectives, and the dynamic that is created once anyone writes about politics. If a person with one set of views chooses to write a post that is openly political--or, more often, a post about the law into which politics enters through the stray remark, casual imprecation, or incidental overconfident assertion about supposed matters of fact--the way diversity enters into things is that a co-blogger with different views challenges those remarks. The result is a series of posts about politics, or political posts. And then the blog becomes a place of disagreement about politics, a site whose subject is politics. That's just a politically diverse downward spiral, inasmuch as politics itself is a blindingly boring subject and our best selves are rarely on display in such disagreements. It still polarizes, simply by focusing on politics, a subject that these days is almost inherently polarizing. It also plays away from our strengths, given that law professors, like everyone else, have a lot of confidence about, but very little expertise or insight concerning, politics. God save us from a legal blog about politics, or a political legal blog, diverse or otherwise.

So I think I'd have to revise my initial agreement with Howard's post, and at least make it a "yes, but." It's good that different perspectives can be found here. It would be nice if there were even more. But the best way to avoid both the unpleasantness and the tedious and blindered nature of polarization is not to field two or more teams, but to not play the game at all. (How about a nice game of chess?) Prawfs always focused more on writing about being a legal academic than on legal academics writing about, inter alia, political subjects. That gave it a real, albeit a narrow, focus and audience. I hope that continues to be our forte and, on the whole (and with the ironic knowledge that I have a post brewing that brings in politics) our primary area. The means of production and the background influences on our work continue to be relevant to what law professors do, and those influences continue to change. The rise of fellowships as the primary path to teaching means both that entry-level professors are better-informed, but also creates new reservoirs of quite incorrect shared lore. Changes in the student body create opportunities for new ways of teaching--and new student desires that ought to be resisted or rejeced. Changes in the mission of law journals--changes apparent to everyone but discussed less openly by the professors than by the students themselves--rejig the endless status game and deserve full treatment and criticism (or praise). Fads and fashions always change: Is the proper phrase "this is the first article to..." or "this Article, the first to...?" Is there any topic to which one can't append the phrase "The Political Economy of," and how many spots in the rankings that we all loudly reject will that title choice help the article climb? The money rolls in. or rolls out, each with attendant effects. Obviously, changes in technology create new topics to explore. So, even as we grow older and wiser and thus know less and less, there is still plenty to write about in what used to be our particular sandbox, rather than focusing on the world's oldest and most boring subject.  

Posted by Paul Horwitz on June 1, 2023 at 10:04 AM in Paul Horwitz | Permalink


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