Are Blogging Law Professors Too Powerful?
On August 19th, Justice Kennedy gave an address that included an interesting passing remark about the role of blogs. Justice Kennedy was talking about how law review case comments generally come out too late to be of use to the Court (especially in the context of deciding whether to grant certiorari in a case). As a result, when Justice Kennedy asks his clerks to look to see what the law reviews have said about a particular case, there isn’t any commentary yet. Justice Kennedy adds: “I’ve found, what my clerks do now, when they have interesting cases — They read blogs.” -- Orin Kerr
Ann Althouse reacts:
This means that the lawprofs who keep up high-profile blogs have disproportionate influence. You have traditional lawprofs laboring over law review articles, but these articles come out too late to discuss a case that's pending in the Supreme Court. One answer — I'm not the first to say this* — is that law review articles should properly be about something other than the latest pending or just-decided cases, something more timeless and profound. But I think that most law professors would like to be involved in the legal developments of the day. It must be irritating to see that the lawprof bloggers have a special line to the Court.
Justice Kennedy has said what a lot of people think. Blogs are a form of instant publication. They can offer a well-turned paragraph that indicates the value of a case without going through the entire scholarly apparatus. For appellate decisions that are possible Supreme Court cases the law professors, and others, who pick out important cases about which they say intelligent things are performing a real public service. But it is by no means unique. The law reviews in part have sought to combat this loss of influence by publishing shorter versions on line of articles that appear in print. People put their articles on SSRN or the Berkeley Electronic Press for just that reason. The real question may be not, why do we write and read blogs, but why do we bother with the law review articles at all. And to that there is an answer. Many systematic legal questions involve a form of synthesis that is timely no matter when it comes out. Other articles involve empirical issues that require detailed analysis. What we are seeing in effect is a perfectly sensible system of market segmentation, where each outlet receives through voluntary sorting. That said, it is back to an article on the role of proximate causation in tort cases, which will, in all its ornate complexity, appear in the Journal of Tort Law, an exclusively on-line publication.
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Re: Are Blogging Law Professors Too Powerful?
The disturbing thing is not that law professors blog about cases. It is that Justice Kennedy cares what they say. I would go Richard one further and say that law review articles are much more important than blogs about cases. Blogs serve a purpose as an immediate reaction, like listening to the color and play-by-play during a baseball game. Legal scholarship should go beyond off the cuff comments for the deeper implications and themes of judicial decisions and changes in the law. Judges, one hopes, do not need to see the immediate reaction to cases, but instead can spend the same time as a scholar in thinking about the law. Kennedy wants to know what the blogs think just like he cares what the New York Times says the day after an opinion comes out -- he likes to see his name in print. What worries me is that he cares enough about the political and media response to his decisions that it affects how he makes up his mind.
May '10
Re: Are Blogging Law Professors Too Powerful?
I agree with Professor Yoo. I visit legal blogs mainly to check in on developments in the legal market and occasionally to keep tabs on new cases; they are especially useful in keeping up with notable cases from faraway federal appeals courts (I especially appreciate the Wall Street Journal's Law Blog). I also like the short podcasts from the Federalist Society summarizing Supreme Court decisions. I listen to them, however, to get a quick capsule summary of the case before I go to the text itself. I see them as a precursor to deeper analysis - certainly useful, maybe necessary, but never sufficient. The thought that a Supreme Court justice or his clerks afford them more weight than that is troubling.
Edited on Sep 5, 2010 at 11:38amRe: Are Blogging Law Professors Too Powerful?
Very respectfully, John, I must disagree. If Justice Kennedy's clerks should acquire the addictive yet entirely salutary habit of reading you and Richard here on Ricochet, just think. The Constitution would be saved!
Aug '10
Re: Are Blogging Law Professors Too Powerful?
Elsewhere, I playfully recommended a parallel system of unofficial courts where cases could be argued in parallel with the official ones. The (perhaps naive) goal of this would be to generally influence the judiciary over time. Emulated organization is an old tactic of various political groups and the Internet is potentially an ideal forum for this. It would be interesting to study the process that different scholars follow as they arrive at stable opinions. Would there be vacillations gradually tapering off as they settled upon a circumspect view? Could this be measured instrumentally and shown to behave with a time constant involving that magic number "e" that the quantitative disciplines find so useful? Putting aside these fanciful speculations, all decisions acquire depth by the action of time and inspiration from others upon our own efforts. We can envision disciplines and professions inventing Internet tools for aggregating, sorting and testing ideas, minus the old impediments of paper and ideologically narrow gatekeepers. This non-lawyer votes with Peter: let peer and cross-disciplinary blogging be part of the mix--and let improvements and innovations evolve by natural selection to facilitate appropriate channels for cross-fertilization. Time? That's still the difficult part.