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Blogging and the Transformation of Legal Scholarship
Abstract
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.
... Court opinions are now being published online, and legal scholarship increasingly relies on digitally born sources, identified only by a Uniform Resource Locator (URL), or Web site address, directing to an online document (Rumsey, 2002;Neacsu, 2007). In fact, what has been called the "disintermediation of legal scholarship" through collaborative and open-access Web-based publishing is having a noticeable impact on the practice and study of law in the United States (Solum, 2006(Solum, , p.1071. Articles and commentary posted on legal Web logs (blogs or "blawgs"), for example, have been cited in many prestigious law reviews as well as in cases argued before state and federal courts, including the United States Supreme Court (as cited in Solum, 2006). ...
... In fact, what has been called the "disintermediation of legal scholarship" through collaborative and open-access Web-based publishing is having a noticeable impact on the practice and study of law in the United States (Solum, 2006(Solum, , p.1071. Articles and commentary posted on legal Web logs (blogs or "blawgs"), for example, have been cited in many prestigious law reviews as well as in cases argued before state and federal courts, including the United States Supreme Court (as cited in Solum, 2006). ...
Written laws, records and legal materials form the very foundation of a democratic society. Lawmakers, legal scholars and everyday citizens alike need, and are entitled, to access the current and historic materials that comprise, explain, define, critique and contextualize their laws and legal institutions. The preservation of legal information in all formats is imperative. Thus far, the twenty-first century has witnessed unprecedented mass-scale acceptance and adoption of digital culture, which has resulted in an explosion in digital information. However, digitally born materials, especially those that are published directly and independently to the Web, are presently at an extremely high risk of permanent loss. Our legal heritage is no exception to this phenomenon, and efforts must be put forth to ensure that our current body of digital legal information is not lost. The authors explored the role of the United States law library community in the preservation of digital legal information. Through an online survey of state and academic law library directors, it was determined that those represented in the sample recognize that digitally born legal materials are at high risk for loss, yet their own digital preservation projects have primarily focused upon the preservation of digitized print materials, rather than digitally born materials. Digital preservation activities among surveyed libraries have been largely limited by a lack of funding, staffing and expertise; however, these barriers could be overcome by collaboration with other institutions, as well as participation in a large-scale regional or national digital preservation movement, which would allow for resource-sharing among participants. One such collaborative digital preservation program, the Chesapeake Project, is profiled in the article and explored as a collaborative effort that may be expanded upon or replicated by other institutions and libraries tackling the challenges of digital preservation.
... G. Smith, 2006). Others argue that it supplements, rather than replaces traditional publishing and serves as "an alternative form of 'peer review' that is more competitive, open, and transparent than the traditional peer review process" (Solum, 2006(Solum, , p. 1088. However, despite these claims, blogging was rated as one of the least efficacious methods of disseminating research by health policy researchers, ranking only above Facebook (Grande et al., 2014). ...
Social media has become integrated into the fabric of the scholarly communication system in fundamental ways: principally through scholarly use of social media platforms and the promotion of new indicators on the basis of interactions with these platforms. Research and scholarship in this area has accelerated since the coining and subsequent advocacy for altmetrics -- that is, research indicators based on social media activity. This review provides an extensive account of the state-of-the art in both scholarly use of social media and altmetrics. The review consists of two main parts: the first examines the use of social media in academia, examining the various functions these platforms have in the scholarly communication process and the factors that affect this use. The second part reviews empirical studies of altmetrics, discussing the various interpretations of altmetrics, data collection and methodological limitations, and differences according to platform. The review ends with a critical discussion of the implications of this transformation in the scholarly communication system.
... Issue 2 11 Article 2 Drezner and Farrell 2004;Coleman 2005;Solum 2006;Volokh 2006). Despite all of the attention that bloggers were receiving from readers, scholars, politicians, pundits, and even each other, attention didn't translate directly into into dollars. ...
This paper employs social network analysis to explain variation in the pricing of 846 banner advertisements appearing in a community formed by eighty-nine "liberal" and eighty-four "conservative" Weblogs. As predicted, Weblogs that bridge "structural holes" between otherwise disconnected segments of the community command significantly higher prices for their advertisements. Also as predicted, the price of banner ads increases with the number of impressions received, with the size of the ad, when the ad is located higher on the page, and when fewer other ads appear.
... "Source intermediaries" such as traditional publishers stand between authors and audiences, while "search intermediaries" regulate identification and access to materials through indexing and other services. 1 The argument is that with the advent of Google and like services that strive to make all information immediately accessible to every user, the role of the librarian as search intermediary has become obsolete. Solum considers this an inevitable and perhaps even a good thing, and predicts that in a few decades the library as a distinct cultural institution will be a thing of the past. 2 More daring futurists set the precise date for the demise of libraries at 2019. 3 Cheerleaders of this possible future are not restricted to interested onlookers. ...
Predictions about the end of libraries point to a real crisis, but assign the wrong cause. Libraries will not be displaced by technology like Google, but can be undermined by librarians' own reactions to patron demand for Google-like experiences when in the library. Librarians can respond with the weak model that prioritizes the satisfaction of patrons, or the strong model that recognizes higher values rooted in the status of librarianship as a profession. Although recent trends favor the dominance of the weak model, only by embracing the strong model can librarians survive the challenges that threaten libraries.
... There has always been a tension in the academic world between the " egalitarians " and the " elitists " . The egalitarians (whom Horwitz uses Lawrence Solum [24, 25] to represent) argue that online communication such as self-publishing and blogging " takes a sledgehammer " to the old way of disseminating legal scholarship, and, to a certain extent, the hierarchy of scholars (at 4). The elitists, represented by Brian Leiter (14), by contrast, claim that blogging is detrimental to legal scholarship because it allows " second rate scholars " a wider audience, leading to the dissemination of weak scholarship. ...
Several commentators argue that the law review is well-suited to open access publishing, although it has not been embraced quite as enthusiastically as it might be. Others assert that self-publishing will signal end of the law review as we know it. Some authors express concern that the rise in blogging will have little positive effect, or indeed a detrimental effect, on the general quality of legal scholarship. These views are countered by those who believe that blogging and collaborative editing provide opportunities and benefits to students and scholars and that the new methods of communicating will give rise to new methods of evaluating works.Other issues are brought up such as the demographics of the audience for legal writing, the responsibilities of the legal scholar, the use of open access in legal education, the benefits of university repositories, and advice for young professors who are considering publishing in open access journals.A few of the articles were written before the open access campaign gained momentum around 2006-2007. These articles are included to demonstrate the history of and impetus behind the open access movement.The conclusion one might draw from the following articles is that there is a theoretical approval of open access publishing for legal scholarship, but a certain amount of resistance in practice. However, open access publishing is gaining in popularity, and it is possible that the next generation of legal scholars, accustomed to finding information online, will embrace open access as the standard manner of publishing.
The chapter begins with an account of the type legal scholarship that, in virtue of its practical orientation and formalist style of argument, is most likely to serve the function of a source of law in modern municipal legal systems. This type of scholarship will be called “standard” legal scholarship; it might also be described as “legal dogmatics,” a term more commonly used in the civil law world. The chapter goes on to discuss—and reject—some arguments to the effect that legal scholarship (standard scholarship included) cannot or does not function as a source of law. Arguments about what scholarship cannot do may be interpreted as conceptual arguments; arguments about what scholarship does not do are empirical arguments. Arguments of each type receive an appropriate type of rebuttal. Evidence is given of the use of standard legal scholarship as a source of law in modern jurisdictions. Scholarship is frequently used as a permissive source of law, but it has also occasionally attained the status of a “should-source”.
As the usage of social media among faculty increases, it has become pressing for institutions to find ways to monitor and support this activity. In some cases, academic administrators have responded by reprimanding faculty members through suspension and forced leaves of absence. This chapter focuses on the role social media play in the careers of faculty, the function a mature workforce (senior faculty and administrators) has in adequately supporting junior faculty's use of social media, and on how institutions equip mature senior faculty and administrators (MSFAs) with the necessary skills to manage junior faculty's use of social media for the purpose of balancing a mature workforce in academia.
As the usage of social media among faculty increases, it has become pressing for institutions to find ways to monitor and support this activity. In some cases, academic administrators have responded by reprimanding faculty members through suspension and forced leaves of absence. This chapter focuses on the role social media play in the careers of faculty, the function a mature workforce (senior faculty and administrators) has in adequately supporting junior faculty's use of social media, and on how institutions equip mature senior faculty and administrators (MSFAs) with the necessary skills to manage junior faculty's use of social media for the purpose of balancing a mature workforce in academia.
This article considers the influence of teachings of publicists on the development of international law. The category of 'teachings of publicists' is not a homogeneous one. The article argues that it can be divided into: entities that have been empowered by States to conclude teachings, such as the International Law Commission; expert groups, such as the Institut de Droit International; and 'ordinary' publicists. The teachings of ordinary publicists are also of different types and include digests, treatises, textbooks, monographs, journal articles, and blog posts. Only by breaking down the category into its various types can the influence of the teaching of publicists on the development of international law be properly gauged. Even then, it can prove rather difficult to pin down the notion of 'influence'. Standard assessments of influence focus on the extent to which teachings are cited by courts and tribunals, in particular by the International Court of Justice. However, that approach privileges the role of courts and tribunals in the development of international law and overlooks the role of other actors. As such, the present article offers a different assessment of influence. It identifies the actors that comprise the community of international lawyers and analyses the various interactions that take place between these actors and the teachings of publicists. It is through this interaction, of which citation is but part, that the influence of the teachings of publicists can properly be determined. Copyright
This paper reviews academic blogging as a practice that facilitates teaching and learning and as research that challenges traditional notions of evidence-based scholarly output. In education, some assert that evidence can never be divorced from practice. Traditional means of disseminating evidence-based research involve the scholarly journal article to inform teaching/learning practice. Yet, scholars write little, comparatively, on practice-based evidence where practice and research inform each other. Although viewed as a less traditional academic process/product, academic blogging is in use increasingly as both a collaborative teaching/learning practice and research activity. In this paper, we ask how academic blogging contributes to a relationship between research/evidence and teaching/learning practice. We conduct a qualitative review of academic blogging literature, including reflective, practice-based studies, using a thematic, textual analysis. Four themes emerged, related to teaching/learning and research: connections and identity, collaboration, scholarship, and immediacy and engagement. We conclude that academic blogging can facilitate engagement between teaching/learning practice and research.
This thesis advances a number of claims, some conceptual, some empirical, some normative. The conceptual claims are concentrated in chapters 1 and 2, where a general account of the notion of a source of law is provided. Roughly, sources of law are documents or practices (e.g. statutes, judicial decisions, official customs) from which norms can be derived that function as sources of content-independent reasons for judges to decide legal cases one way or another. The remainder of the thesis is dedicated to discussing whether legal scholarship – or, more precisely, a particular type of legal scholarship that can be described as standard or doctrinal – is used as a source of law (as the concept is defined in chapters 1 and 2) in modern municipal legal systems. The conclusion that legal scholarship is used as a source of law (and thus as a source of content-independent reasons for action) may come as a surprise to those who associate recourse to legal scholarship by judges with judicial activism. It will be argued, however, that legal scholarship can plausibly be used to mitigate discretion. Indeed, it is precisely because it can be used in this way that judges sometimes refer to scholarship deceptively and suggest that it limits discretion in situations in which it in fact does not.
These are the opening remarks I delivered at the Symposium on Bloggership: How Blogs Are Transforming Legal Scholarship at Harvard Law School on April 28, 2006. Part One describes how my work on TaxProf Blog and the Law Professor Blog Network led me to organize this Symposium. Part Two takes inspiration from Jim Lindgren's work, Are Scholars Better Teachers?, to ask, using our twenty-three panelists as guinea pigs, Are Scholars Better Bloggers? The data indicate that our participants include some of the most heavily-cited and heavily-downloaded legal scholars who edit many of the most heavily-trafficked law blogs. Although the data do not do not conclusively answer the question raised, they demonstrate that we have assembled an impressive array of scholar-bloggers in the first conference on the impact of blogs on legal scholarship.The papers and commentary are organized around four themes: (1) Law Blogs as Legal Scholarship (papers by Doug Berman, Orin Kerr, Kate Litvak, and Larry Solum; commentary by Jim Lindgren and Ellen Podgor); (2) The Role of the Law Professor Blogger (papers by Gail Heriot, Gordon Smith, and Eugene Volokh; commentary by Randy Barnett and Michael Froomkin); (3) Blogs, First Amendment Law, and Co-Blogging Law (papers by Glenn Reynolds and Eric Goldman; commentary by Dan Solove and Betsy Malloy); and (4) The Many Faces of Law Professor Blogs (papers by Ann Althouse, Christine Hurt & Tung Yin, and Larry Ribstein; commentary by Howard Bashman and Paul Butler). Paul Butler perhaps best captured the spirit of the Symposium with this clarion call: Blogs are walking up to legal scholarship and slapping it in the face. Blogs say to legal scholarship: 'How dare you! Evolve or Die!' ... I feel like I am part of a movement that could change the world.
Sometimes, when I'm in the middle of a heavy blogging spurt, I ask myself: Shouldn't I be spending this time writing law review articles instead? But maybe, when I'm in the middle of writing a law review article, I should ask myself: Shouldn't I be spending this time blogging instead? My blog gets about 20,000 unique visitors a day; I don't know how many people read my articles, but I'm pretty sure it's very far from 20,000. True, the article readers are presumably more likely to be the ones we want to influence with what we write. But how much more likely? Just how much influence do our law review articles actually get? Given this uncertainty, and the suspicion that a typical law review article's influence is far from vast, just how much should we value our "traditional scholarship", and what fraction of our years should we devote to it? These are not rhetorical questions; I honestly want to know the answer, and I suspect many other academic bloggers do, too. This short article briefly discusses these questions, and also asks how our blogging can advance our scholarship rather than just being a rival use of our time.
By comparison analysis, sample analysis and content analysis to clarify the Web-based open access for wide learning platforms with the characteristics of zero distance, wide open access, compatible and inclusive, raise detailed measures to establish platforms with concept of innovation and institutional innovation.
We examine the relationship between scholarly practice and participatory technologies and explore how such technologies invite and reflect the emergence of a new form of scholarship that we call Networked Participatory Scholarship: scholars’ participation in online social networks to share, reflect upon, critique, improve, validate, and otherwise develop their scholarship. We discuss emergent techno-cultural pressures that may influence higher education scholars to reconsider some of the foundational principles upon which scholarship has been established due to the limitations of a pre-digital world, and delineate how scholarship itself is changing with the emergence of certain tools, social behaviors, and cultural expectations associated with participatory technologies.
BREVE ANÁLISIS ECONÓMICO DE LOS BLOGS JURÍDICOS (BLAWGS) Y DE LA BLOGÓSFERA.
This Essay reports the results of an interdisciplinary project comparing political science and legal approaches to forecasting Supreme Court decisions. For every argued case during the 2002 Term, we obtained predictions of the outcome prior to oral argument using two methods-one a statistical model that relies on general case characteristics, and the other a set of independent predictions by legal specialists. The basic result is that the statistical model did better than the legal experts in forecasting the outcomes of the Term's cases: The model predicted 75 % of the Court's affirm/reverse results correctly, while the experts collectively got 59. 1 % right. These results are notable, given that the statistical model disregards information about the specific law or facts of the cases. The model's relative success was due in large part to its ability to predict more accurately the important votes of the moderate Justices (Kennedy and O'Connor) at the center of the current Court. The legal experts, by contrast, did best at predicting the votes of the more ideologically extreme justices, but had difficulty predicting the centrist justices. The relative success of the two methods also varied by issue area, with the statistical model doing particularly well in forecasting "economic activity" cases, while the experts did comparatively better in the "judicial power" cases. In addition to reporting the results in detail, the Essay explains the differing methods of prediction used and explores the implications of the findings for assessing and understanding Supreme Court decision making.
This article starts with a troubling and unnoticed development in federal criminal justice: acquittals have virtually disappeared from the system in the last 15 years, and for all the wrong reasons. It seems likely that prosecutors have increased the "trial penalty" so much that defendants with meaningful defenses feel compelled to plead guilty, undermining the truth-finding function of the criminal process. The article examines these federal developments in light of a proposed "trial distortion theory." The theory I develop here evaluates the quality of plea negotiation practices in a jurisdiction by asking whether the system produces outcomes (convictions, acquittals and dismissals) similar to the outcomes that would occur if all the cases had gone to trial. The trial distortion amounts to a "mid-level" theory of plea bargaining. It is more demanding than the toothless standards that operate at the individual case level, focusing on the "voluntariness" of the defendant. On the other hand, it is more practically useful than "social purpose" theories that evaluate the global costs and benefits of plea bargaining as an institution. Given the stability and universal nature of the practice, the live questions about plea bargaining do not involve the virtues of abolition. Instead, what we need is a method to sort the positive from the negative plea negotiation practices. Trial distortion theory offers a handy diagnostic tool for evaluating plea practices in a particular jurisdiction. The last half of the paper evaluates the federal system in light of trial distortion theory. Historical analysis of the federal system links the acquittal rates to prosecutor and judicial workload and the expanding role of defense counsel. The years since 1989 have produced the most troubling drop in acquittal rates, largely due to the federal sentencing guidelines and the power they give to prosecutors to make the trial penalty both larger and more certain. An empirical study of the 94 federal districts between 1994 and 2002 produces a regression analysis that identifies the prosecutorial practices with the strongest distorting effects on outcomes. These include heavy use of the "substantial assistance" departures and the enhanced "acceptance of responsibility" adjustments. This topic is especially timely in light of the Supreme Court's January 2005 decision in Booker v. United States, holding that the federal sentencing guidelines are unconstitutional. I offer both specific recommendations for revising the sentencing guidelines, and more general principles for Congress to follow as it restructures the federal sentencing statutes over the next few months and years. Those principles aim to achieve a "separation of powers" for sentencing, with a proper balance of authority between the prosecutor and the judge.
Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems - Napster, Gnutella, KaZaA, Grokster, and Freenet3 - are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony substantial noninfringing use defense. The digital cassette recorder begat the Audio Home Recording Act. The internet begat the Digital Millennium Copyright Act. Napster begat Napster. We see the law morph right in front of our eyes, but its ultimate form is still obscure. As a consequence, the future of copyright is up for grabs. We live in a magical, exhilarating, and frightening time: Many alternative copyfutures shimmer on the horizon, sometimes coming into sharper focus and sometimes fading away. In this heady atmosphere, the idea slingers are at work. Richard Posner and William Landes have proposed indefinitely renewable copyrights. Neil Netanel, William Fisher, and others propose to legalize P2P filesharing and replace the lost revenues with a tax on hardware and internet service. Joseph Liu suggests that the scope of fair use should grow with time. Mark Lemley is debunking ex post justifications for intellectual property. No surprise, the academics do not have a monopoly on idea slinging. The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) have gone on the offensive, proposing legislation like the Induce Act, targeted at shutting down P2P filesharing services that allow third parties to share copyrighted content. No copywarrior is more prominent and influential than Larry Lessig. Lessig was the brilliant architect of Eric Eldred's failed challenge to the CTEA's retroactive twenty-year extension of copyright terms - effectively a twenty-year moratorium on new works entering the public domain. In Free Culture, Lessig has remade himself as a norm entrepreneur - a public figure with the towering ambition of reshaping copynorms - the fundamental set of social norms that shape perceptions of the morality of filesharing and the legitimacy of legislation that shrinks the public domain. This essay examines the ideas in Free Culture in the context of current controversies over the future of copyright.
The recent copyright-infringement lawsuits targeting individual file-sharers have in common the following facts: a statutory damage award with a substantial punitive component, a large number of like-kind violations, and fairly low reprehensibility as assessed under the relevant Supreme Court test. The substantive due process principles laid out by the Court in BMW v. Gore provide a roadmap for evaluating whether the aggregated punitive effect of these awards has become unconstitutionally excessive. In this paper, I argue that there is a constitutional right to not have a highly punitive statutory damage award stacked hundreds or thousands of times over for similar, low-reprehensibility misconduct. I point to the rationale behind criminal law's single-larceny doctrine, identify the concept of wholly proportionate reprehensibility, and use this to explain why the massive aggregation of statutory damage awards can violate substantive due process. I conclude that massively aggregated awards of even the minimum statutory damages for illegal file-sharing will impose huge penalties and can be constitutionally infirm like the punitive damage award of Gore itself. Yet practical and institutional reasons will likely make this norm underenforced by the courts, pointing to Congress as the actor that should modify copyright law to remove the possibility of grossly excessive punishment.
This paper explores the jurisprudential question of the relationship between moral values and legal norms in legal advising and counseling in the context of an analysis of the so-called torture memos prepared by lawyers in the Office of Legal Counsel in 2002. The principal claim of the paper is that the torture memos are morally bankrupt because they are legally bankrupt. The lawyers' actions were wrong from a moral point of view because the lawyers failed with respect to their obligation to treat the law with respect, not simply as an inconvenient obstacle to be planned around. The morality of torture plays no direct role in this analysis. Although it is easy to say at a high level of generality that torture is immoral, it is possible for reasonable people to disagree in good faith over application questions, such as whether a particular interrogation technique should be deemed torture, or whether there may be some moral justification for torture in a particular case. In order for citizens and law enforcement officials to cooperate in the project of defending national security while also respecting human rights, it is necessary to reach some provisional settlement of these normative debates. Because the law enables social action in the face of disagreement, it is entitled to respect by affected individuals and also lawyers acting in a representative capacity.The position defended in this paper contrasts with two widely accepted views. The first, which I call the standard lawyers' defense of the torture memos, maintains that moral values are excluded from legal reasoning. This position rests on a misunderstanding of legal positivism or, in its more sophisticated versions, on an argument for the exclusive or hard strand of positivism. The more plausible version of inclusive positivism permits moral values to become incorporated into conventional practices of legal reasoning. The second view, which is more common within the academic legal ethics literature than among practicing lawyers, holds that the role of lawyer is directly moralized, in the sense that a lawyer acting in a professional capacity is bound by the same moral principles as an ordinary moral agent would be in the same situation. In order to defend this position, it is necessary to briefly set out the argument for the authority of law that I have defended at length elsewhere. This paper further fleshes out that argument by providing a hypothetical narrative suggesting how law derives its authority from its capacity to enable coordinated social activity in the face of persistent moral disagreement, specifically regarding the morality of torture.
According to the prevailing wisdom in academic public law, constitutional theory is a field that seeks to articulate and evaluate abstract accounts of the nature of the United States Constitution. Theorists offer those accounts as guides to subsequent judicial construction of constitutional provisions.1 As typically conceived, therefore, constitutional theory tends to proceed analytically from the general to the particular; its animating idea is that correct decisions in constitutional cases presuppose theoretical commitments to the methodological principles that should guide constitutional interpretation and the substantive values such interpretation should advance.2
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Note, Grossly Excessive Penalties in the Battle Against Illegal File-Sharing
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Squaring the Circle? Reconciling Sovereignty and Global Governance through Global Governance Networks
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Comment, The Origin and Current Meanings of
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