Today's Wall Street Journal has this story, Law Professor's Web Log Is Jurists' Must-Read about how the blog of Prof. Douglas A. Berman has become important in the aftermath of the recent Supreme Court decision on sentencing.
The article notes, "Mr. Berman has established himself as the go-to guy for all things Blakely for federal and state judges, defense lawyers, prosecutors and prisoners' relatives. Although the 5-4 Supreme Court ruling technically affects only one state's court system, its greatest impact so far has been on federal sentencing guidelines, whose constitutionality has been called into question in dozens of court rulings nationwide, almost all of them posted on Mr. Berman's blog."
I have only a moderate level of interest in federal criminal sentencing guidelines, but this article does prompt me to reflect on the role of blogs in academic life.
Blogs do not yet fit into the conventional academic legal publishing model (the ALP model). Dominant conventions of legal scholarship and the standards for academic tenure and promotion at most universities generally require that legal academics write and find a law review to publish lengthy, heavily footnoted articles. The more "prestigious" the particular law review the better. Unique to law is that most of these law reviews are edited by students.
These conventions contort scholarship in some ways, though they have some advantages, too. But whatever the problems and advantages of the ALP model standing alone, clearly in comparison to blogging it is slow. With a blog, a professor writes a squib, hits "publish" or some equivalent button and the information and analysis is available instantly to anyone with an internet connection. The process of writing, submitting, editing and publishing is radically truncated. Thus, discourse can move much faster than with the conventional ALP model.
In the traditional ALP model, the professor must not only write but also laboriously footnote his assertions (even, in the opinion of some editors, the patently obvious ones), conform the citation style to the Bluebook or some other arcane tome, send (often by snail mail) his or her manuscript to various law reviews which must review it with many others to decide if they'd like to publish it. If they do, the text is then combed over by student editors who verify the accuracy or each footnote. They also may wrestle with the prose and analysis. Once changes are finalized, the article is formatted for print, actually printed, distributed in hard copy and eventually included in searchable electronic databases. Literally months expire.
There are good things about the ALP model, but clearly consequential discussion of important, fast-moving changes like a new high court precedent with apparently sweeping implications are not ideally suited to the ALP model. Not only are blogs more nimble with instantaneous dissemination, but the discussion can be broader because participants don't have to have a paper subscription to the journal or electronic access through fee-based services like Lexis or Westlaw.
I have been keeping this blog about Chinese securities regulation for nearly a year now. For the average reader (or surfer) it is irrelevant, unconnected with his or her interests. But if you want to know something about PRC sec reg, finding this site is like hitting paydirt. I've written about each of the important regulatory developments over the last year and have links to related articles, laws and regulations.
Interestingly, though, when I filled out last semester the form our department uses for annual reviews, I didn't mention this blog. There was no space asking about web pages one maintains--just questions about the traditional ALP model, conference presentations and the like.
But looking at Prof. Berman's example, it is clear that a blog can be a significant contribution to legal discourse. When a blog is a significant contribution to legal scholarship, clearly it should be part of tenure and promotion decisions.
I can think of some objections to the ascendancy of blogs. First, the traditional ALP model allows one to have intermediaries suggest what's of value. The reputation of say the Harvard Law Review suggests that articles in it are worthy of attention. Tenure and promotion committees can rely on such reputational intermediaries when evaluating candidates. Blogs do not have such intermediaries, so it can be harder to know when one is meritorious. Also, the footnotes obsession of the traditional ALP model is good in that it allows people to find the sources of an author's assertions. Whether you agree or disagree with an author, the ALP model at least assures you can find the supporting evidence and evaluate it yourself. Blogs usually have links to other electronic sources, but the citation conventions are looser, and web pages can be effervescent. So blogs can be less rigorous in terms of citation. Third, the process of the traditional ALP model should through its rounds of editing also tend to improve prose and analysis in comparison to off-the-cuff remarks, which blogging is akin to.
But notice Prof. Berman is linking to case law and important sources. Notice also people are coalescing around his site as the epicenter of sentencing discourse, even though no reputational intermediaries are present in the publishing process. And while slow deliberation can be a valuable process, notice that the months of time the traditional ALP model would lard into the process (months for footnoting, submitting, editing and publishing) would be of little clear value here and could be of detriment.
All this means blogs have a place in legal scholarship. Tenure and promotion evaluations should take into account the good blogs can do and give individuals credit for creating and maintaining important and influential blogs. The hegemony of the traditional ALP model in tenure and promotion should be reexamined. Blogs can be important and should be recognized as markers in some cases of meaningful academic achievement.
