Bloggership Conference Recap

By Eric Goldman

I spent yesterday at the Bloggership: How Blogs are Transforming Legal Scholarship conference at Harvard Law School. As one might expect, the day was filled with self-referential navel-gazing of the first order, kicked off by Paul Caron’s introduction that provided a battery of statistics proving that we thought we were an important group. Here’s my notes from the conference:

Doug Berman provided some evidence that law review articles have grown in length over the decades, in part because it has become technologically feasible to write long articles. The articles have also grown less practitioner-oriented. Blogging can fill those gaps by providing shorter commentary that helps practitioners. As a result, blogging fills all three of the main duties of law professors: teaching, scholarship and service.

Larry Solum said that scholars want their works read. To get readers, scholars have to reduce the costs of reading. These costs will be lowered by shortening articles and removing copyright limitations. Thus, he predicted that the future of legal scholarship is “short form” (as opposed to lengthy) open access articles.

Kate Litvak was supposed to be the token naysayer by explaining why bloggers need to get over themselves. Instead, she disappointed the bloodthirsty with a surprisingly mild critique of blogging–she argued that blogging is just one of many changes currently taking in legal scholarship, and perhaps not an especially important one.

Paul Bulter commented on the first three panelists. He was the most rah-rah blogger of the day, declaring blogs “amazingly cool.” He also had the best soundbites. He said that bloggers are walking up to legal scholarship and slapping it in the face. In support of this, he drew an analogy that blogs +> legal scholarship is like music videos => movies–in other words, the short and quick nature of blogs will reshape legal scholarship just like music videos have changed the editing and scripting of movies. He concluded that “blogs are about power to the people.” (My link, not his)

In response to the question “Is Blogging Scholarship?,” Jim Lindgren had a very Jewish response of answering the question with his own question: “Why did you want to know?”

Ellen Podgor said that she may be the first person to affirmatively ding someone in their P&T letter for failing to keep up with the blogosphere. (Note to Ellen: even though I think your remarks were designed to lift the spirits of bloggers, the mere suggestion that some P&T reference letters might contain negative feedback sent most of us untenured folk into a tailspin!).

Gail Heriot said that she found blogging fun, and this created an internal conflict for her: does she want blogging to be recognized as scholarship for legitimate reasons, or because she just wants an excuse to keep having fun?

Orin Kerr talked about the “tyranny of reverse chronological order”–how the presentation of posts by date obscures the most valuable posts.

(Note: I think Orin has a good point. Because of this phenomenon, I rarely make “non-substantive” posts on my blog so that the top post is invariably a significant post. I have also noticed that when one of my blog posts gets a lot of traffic, the immediately following blog post gets overflow traffic (it gets a prominent link in the upper right corner that really catches people’s attention). Because of this phenomenon, I don’t want to have a blah post following a major hit, and I often don’t know which post will be a major hit. So I cut down on the non-substantive posts to minimize that. And if I think a post will be a hit, I try to follow it up with a topically-relevant post so that I can enhance the spillover effect.)

(Having said all that, I don’t think the tyrannical effect Orin fears is all that significant. There are lots of ways to merchandise and display blog posts, so there will be evolving solutions. Plus, a lot of blog traffic comes from deep links and search engines).

Gordon Smith gave examples of how he used his blog to engage in a scholarly discourse about the Disney opinion.

Randy Barnett followed up on Gail’s talk by warning about the “flight from scholarship.” He said that blogging is a temptation to avoid doing scholarship because scholarship is hard. He amused the crowd by observing that many professors don’t like to do scholarship because it’s hard, but then again many professors don’t like to teach and almost no professors like to do university service–making all of the law professors in the room question whether we really have a great job. (We do).

Michael Froomkin talked about how he has different writing voices–he runs different blogs with different voices for each. He also announced the “Journal of Things We Like (Lots)” (or Jotwell.com), a place where people can provide short critiques of law review scholarship as a way of calling attention to the good scholarship that others should read.

Glenn Reynolds spoke by videoconference. (Always a tough thing to do, although he did it well). He explained why bloggers don’t get sued for defamation very often and why they should be excused from liability in many cases.

Eugene Volokh gave various examples of how legislators have protected speech beyond the constitutional imperatives of the First Amendment. He raised an interesting question that I hadn’t really considered before and can’t recall seeing discussed in the literature–could someone raise a constitutional challenge to 47 USC 230 because it provides different levels of protections to different types of media? My instinct is no, but I could see this question being more complicated. If this hasn’t been covered in the literature, it seems like an excellent law review article. I wonder if plaintiff will bring this constitutional challenge.

I spoke a little about the liability facing bloggers who work together, such as group blogging and guest blogging arrangements. See my talk notes here. My principal point is that group/guest bloggers are in for some surprises. For example, 47 USC 230 might be defeated if a plaintiff can show that the bloggers were in a partnership or employment relationship, and a blogger might lose the ability to stop republication of his/her posts upon departure from a blog if the arrangement is characterized as a partnership, or the blogger is an employee, or if the blog posts are considered to be contributions to collective works under 17 USC 201(c). I didn’t mean to scare bloggers about these issues, but I think a lot of bloggers–including law professors–aren’t paying adequate attention to these issues, so I wanted to raise the profile of these issues. Read my entire paper here.

Betsy Malloy talked a little about the importance of anonymous blogging.

Dan Solove said that we are celebrating the blogger as “Davids” against the Goliaths (such as the thesis of Glenn Reynolds’ book). However, he explained how the Davids are romanticized as responsible parties who are trying to build personal reputations, but the reality is that most bloggers are teenagers who may not fit our romantic ideal.

Larry Ribstein talked about “publicly engaged academic posts” or “PEAPs.” Some of us thought he might be talking about marshmallow peeps.

Ann Althouse described her very laissez-faire attitude towards blogging–it’s fun, and it’s liberating to press “publish” and then be presented with a new blank window to be populated with new thoughts.

Chrstine Hurt talked about blogging while untenured. She said the two big risks of blogging were that it takes time and risks unfavorable exposure. But then she explained that blogging saves her time by forcing her to keep up with and self-organize the literature (which allows her to get a faster start on her scholarship come summer) and disciplining her to keep her reading/blogging within a fixed time block of her day. Exposure depends on the type of blog the professor maintains. (Or, as she asked in reference to Gordon Smith’s cheese obsession: “What will your cheese ratio be?”). A blog that is non-law related can have lower risk of negative exposure, but doesn’t do much to build the professor’s reputation in the law professor community. Meanwhile, the exposure provided by blogs can open up doors–Christine explained how it allowed her to meet a lot of people who would have never known about her otherwise. (Certainly, both Christine and I felt very fortunate that our blogs opened the door to participate in such a terrific event).

Howard Bashman described how his blog had generated new clients for him. He also said that journalists seek out links from his blog (not vice versa!).

Peter Lattman described how his reporting is affected by reading blogs. From his perspective, journalists view blogs as useful resources, not competitors.

An interesting aspect of the conference. The event was scheduled during reunion weekend at Harvard Law School, and I believe it was billed as a way for alumni to get free CLE. As a result, there was a steady stream of alumni coming and going, many of whom had badges with little labels saying that they were attending their 25th, 35th, 40th or even 50th reunion. I don’t want to overstereotype this group, but many of them were elderly men who, I suspect, had never read a blog in their lives. This created an interesting cultural dynamic in the few situations when the blogger crowd interacted with the alumni crowd. The most visible is when one alumnus asked if the bloggers wanted him as a reader. TWO different panelists said (only partially in jest) “no, I don’t want you as a reader” right to his face! Ouch!

Many thanks to Paul Caron for organizing a great event and to the Berkman Center for hosting the event.

Other recaps:

* Tim Armstrong (a thorough and insightful recap with links to comments on all of the panels)

* Doug Berman

* Ann Althouse

* Dan Solove (a caricature post)

* Opinio Juris/Roger Alford (a collection of quotes from the event)

* Larry Solum (see April 28)

* Eric Muller

* Jim Lindgren

* Larry Ribstein

Ian Best provides the most thorough meta-post.

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