February 28, 2006

Blogs "have nothing to do with scholarship."

The National Law Journal has an article on lawprofs blogs:
An increasing number of law professors are using blogs... to break free from traditional modes of legal scholarship. With an immediacy and ability to reach millions of readers, blogs are proving an attractive vehicle among legal scholars for spouting and sharing ideas.

But they are also raising concerns that they may lead to a dumbing down of the profession.

"They have nothing to do with scholarship," said Katherine Litvak, a professor at the University of Texas School of Law.
Wow! Why feature that quote at the beginning and then have nothing to back it up? I'm sure Litvak must have made a more detailed statement, but here she is just hung out to dry with the absolutism of the word "nothing." And she's supposedly accusing us of "dumbing down... the profession"? Though Litvak pops up again later in the article, she's never given a chance to explain that overwrought pronouncement. She does slam law reviews as "fundamentally corrupt," however. That's interesting. She's not given a chance to explain that either.

Anyway, if you bother to keep reading after that offputting beginning, there's material on the upcoming conference "Bloggership: How Blogs Are Transforming Legal Scholarship," which will take place at Harvard this spring. I'll be at that conference, and I'm quoted in the article too, complaining about law reviews. The fact is, whatever you want to say about blogs, law reviews are a big problem:
Not only does the slow publishing cycle of law reviews trouble Althouse and others, but critics also point to the lengthy and heavily footnoted format of the articles, which make them difficult to read -- if in fact anyone actually is reading them.

"I don't need a think tank, I need advocacy," said Stanley Bernstein, senior partner with 45-attorney Bernstein Liebhard & Lifshitz, a securities litigation firm in New York.

Bernstein, who himself was an editor of the Journal of International Law and Politics at New York University School of Law, said that in his 25 years of practice, he has rarely used law review articles.

"By the time you need to use them, they are generally a year or two out of date," he said.

A prevailing concern about law reviews is that law students who have just two years of course work compose the editorial staff of typical law review journals and, so goes the criticism, often make selection decisions based upon the status of the professor's school, not the value of the work.

Douglas Berman, a law professor at Ohio State University, called the law review industry "incestuous." He added, "It's the marketplace of prestige. It's what you have to do to show off to law students."
Blogs at least offer an alternative to traditional legal scholarship, which everyone seems to agree has big problems. Of course, blogs have their own set of problems. Neither form is ideal. Blogging is much more fun, of course, and that alone has got to piss off the folks who are working in the traditional, ponderously long and pretentious mode. Instead of lashing out at us, though, why not take a lesson from us and write better, faster, pithier law review articles?

ADDED: Stephen Bainbridge is blogging the same NLJ article, which contains the factoid: "Among the top 20 schools, as ranked by U.S. News & World Report, there are 59 bloggers."
It's interesting that top 20 schools seem to dominate the blogosphere. Does that credential give the potential blogger a leg up? Or is it just that the kind of people who land jobs at top 20 schools are also the kind who would find blogging attractive? I don't know, but if I had to guess, I'd say it's both.
Shouldn't we first count the numbers of lawprof bloggers in the second 20 and the third 20 before we make assumptions about who's doing the most blogging? Also, just counting the numbers of bloggers is not very accurate. For example, Chicago has a high blogger count because it runs a group blog with a long list of faculty names. I'd like to see a weighted count -- if you're going to get into counting -- that reflects the actual amount of blogging that is going on. But then if you did that, you'd probably want to count the blogging that is specifically about law, as opposed to, say, "American Idol."

And speaking of U.S. News, wouldn't it be funny if it used faculty blogging as a factor? There would be all these blogs by lawprofs trying to move their school up the rankings. Oh, but maybe it already is a factor, affecting the "repuation" scores that are based on surveys of academics, lawyers, and judges. The question is which way blogs affect the school's reputation. That too would not be based on the sheer number of blogging lawprofs. Wisconsin, that's that school where they watch "American Idol" all the time.

UPDATE: Jim Lindgren expands on my point about how to count the significance of blogging at different school. He concludes that Chicago's significance "does not yet reach the influence in the blogosphere of UCLA, Tennessee, San Diego, GW, George Mason, or Wisconsin, among others."


Goesh said...

Blogs such as yours provide exposure to legal thinking, points and principles, some history and implications the general Public otherwise would not receive. I suppose scholarship and education don't always have to sleep in the same bed and exist in traditonal formats. The 3.86 million 'hits' on your site meter are not coming from dumb and bored people you know.

Jacques Cuze said...

So is there any other academic discipline that doesn't have peer reviewed research journals? I mean really?

The B Schools, the J Schools, the Art Schools, do these guys have peer reviewed research or do they just slough it off onto their "kids" (your words, not mine) as a teaching moment?

That said, are lawyers capable of learning from anyone that earns less than they do? Has anyone examined what happened in the actual Sciences with their journals, than journals of just letters, and finally moves to teh web? (Do lawyers realize teh web browser was invented to help physicists communicate their research?)

David said...

I suspect that the intellectual elites in this country do not like the idea of their Brahmin beliefs challenged by the masses.

Where else could bright people assemble and conduct thoughtful discussion about institutions that affect our daily lives?

Massachusetts undoubtedly would love to be seen as the Mecca of discourse and scholarly ideas in our country. The proof is in their continued reelection of Kennedy and Kerry.

Blog sites must be their worst nightmare come true. The Kings have no clothes!

Jacques Cuze said...

I suspect that the intellectual elites in this country do not like the idea of their Brahmin beliefs challenged by the masses.

Yeah, that's why MIT gives away its courses via the web. That's why Stanford and UW and other Universities sponsor ITunesU.

Better trolls/strawmen please.

sonicfrog said...

And funny that. Volokh is on a word tangent.

Example: You used the term factoid but if you use the word as constructed, it actually means a non-fact, since the suffix "oid = 1. Used as in mainstream slang English to indicate a poor imitation, a counterfeit, ...

Though this exercise does not necessarily deal with law, per se, doesn't it help lawyers by promoting better command of language?

PS. I only learned of the folly of the "factoid" a few years ago when I was trying to get a degree in geology. The professor was explaining the difference between a mineral and a mineraloid. This led directly into the factoid tangent. So even though I didn't make it through the major (I'm a geology school drop-out) I at least learned that one bit of semi useful knowledge.

Bruce Hayden said...

I have always thought that law review articles were a bit ridiculous. Maybe a part of it is that there is such a separation in many cases between the academy and the workplace.

In the sciences, peer reviewed articles are where you really find out what is happening. But in law, it isn't the law review articles that count, it is the caselaw. All law review articles, at their best, tell us, is what someone thinks the law is at some point in time.

But we are bound by precedent. All the law articles in the world aren't going to trump binding precedent to the contrary.

So, I think a lot of judges figure out that if they see law review articles cited, that the side citing them doesn't have precedent on their side, but is rather arguing what they think the law should be, and not what it is.

The other part of it is that legal faculty need some mechanism for them to appear as academic as their colleages in other areas of the academy. After all, much of the tenure decision throughout academia is based on research and publications, and, thus, law profs need a way to show this. But since it is mostly irrelevant to the real practice of law, you end up with these ridiculous articles on inane subjects that few are concerned with. And, of course, they have to be footnoted ad nauseum in order to appear scholorly.

One problem though is that the judges at the highest levels (esp. the Supreme Ct.) often were on law review in law school, and learned to write this way there. The result is that some decisions these days are almost as unreadable as the law review articles they wrote or edited in law school.

Bruce Hayden said...

Blogs may have little to do with legal scholorship, but law profs are, on average, some of the brightest people around. And, because of their brains, write interestingly on interesting topics. No surpise that of the five blogs I follow most closely, three are law prof blogs (Althouse, Volokh, and Instapundit), and a fourth by practicing attorneys (PowerLine).

RogerA said...

What Goesh said above--I have neither the time nor inclination to read law review articles--I can't even keep up in my own discipline--The blogs I have read, coupled with comments provide me a good overview.

Apparently law review articles are to law schools as publication in scholarly journals is to other professions--With the rise of multivariate statistics based on iterative computer techniques, statistical analysis is changing dramatically--Most of the new stuff has come in the last 15 or so years--IIRC (danger--anecdote alert), one of the two major sociological journals surveyed its readership (predominately academics)--nearly 50 percent of the readership admitted to not understanding the articles that were published--

Perhaps the root of the problem is the requirement to publish--or at least clearer expectations about what constitutes publication.

sonicfrog said...

I wrote:

I at least learned that one bit of semi useful knowledge.

I just realized I could have called it a "knowledgeoid".

I am currently reading Posner's "Frontiers of Legal Theory", and though I find myself rereading things two or three time to grasp some of the concepts presented, I would probably be at a complete loss if not for legal blogs (Althouse, Volokh, *Insta...) acting as primers for the subject.

sonicfrog said...

Oooops. Left Groklaw off the list. I love that site. Has there ever been a case that was followed so intently and thoroughly as SCO vs IBM, where the case details have been so readily available to the public???

vbspurs said...

Wisconsin, that's that school where they watch "American Idol" all the time.

That is exactly what this article makes bloggers look like -- in its more reductionist form, blech.

However, have any of your colleagues expressed their feelings that your blog in some way, misrepresents the Law School in some way?

I wouldn't think so, because it obviously doesn't follow that one person's actions have anything to do with the whole (which is what media often stress, even unwittingly), but then, professors are rather persnicketty, territorial, feisty people.

I should know. I live with two of 'em...


vbspurs said...

Well I did once run into a law prof who thought that law blogging was unethical. Never got an explanation that made clear sense to a layman like me, though.

Care to Devil's Advocate that, and come up with reasons why he or she would think thusly?

Go on, it's your turn to sound like a person whose job security is fixed for life. ;)


pst314 said...

Well I did once run into a law prof who thought that law blogging was unethical. Never got an explanation that made clear sense to a layman like me, though.

Jack said...

I'm sure Litvak must have made a more detailed statement, [...] She's not given a chance to explain that either.If these assumptions are correct, it is deliciously ironic. It is possible, of course, that Litvak really is as absolutist as she comes off in this article. If not, (and I think not) is this not another case of traditional journalistic practices resulting in misrepresentation -- or at least a loss of nuance? Sound like maybe someone needs to get a blog of her own ... in a non-scholarly sort of way, of course.

Ann Althouse said...

Jack: My original post had a crack like that in it, but I took it out when I was that Litvak has participating in some group blogs. She didn't say she was opposed to blogging, only that it wasn't scholarship.

Marghlar said...

I feel the need (quixotic, perhaps), to stand up for law reviews.

The shorter pieces in law reviews are often quite interesting...and law reviews have been trying to combat the increasing length of submitted pieces (which is ultimately a product of scholarly competition rather than law review's preferences) by imposing word limits on submitted pieces.

Despite what some of you have said, law review articles have been the basis of some very important modern decisions (see, e.g., Goldberg v. Kelly).

To those of you who would criticize journals, please help us out by telling us how you would seek to improve them (other than by changing who runs them, which is not a change most law reviews can make). What would you like to see done differently? Should reviews be speeding up publication schedules? Publishing more online?

Inquiring minds would like to know.

Jack said...

It wasn't exactly a crack. I intended it sincerely, if a bit snarkily. I'm glad to see she followed my advice before I even gave it.

James Edward Maule said...

See In Defense of Blogging: Part Two, in which I propose peer-reviewed ratings of law professor blogs (near the end, after reading through commentary that includes a favorable mention of Ann's comments)

jcibb said...

It is worth noting that some law reviews have recognized the constraints on "typical" law review articles and have decided to do something about it.

The Buffalo Law Review has started an annual tradition of devoting one issue exclusively to essays (they've already published two and are planning a third). The essay issue is meant to allow Professors to write about thoughts-in-progress (which is what blogs really are) rather than highly-developed, structured arguments (which is what law review articles tend to be). The format encourages creativity and is very flexible. I believe that it addresses the concerns of many Professors.