Back in 2005 and 2006, a lot of law-professor bloggers wondered whether blog posts could and would serve as ways to advance scholarly ideas about law. At the time, I was very skeptical:
Can blogs help advance legal scholarship? I think the answer is that they can, but that the format isn’t well-suited for the job. The key problem is the tyranny of RCO, reverse chronological order. RCO means that blog visitors see the most recently posted material at the top of the page. A visitor may see one or two posts on the screen, but needs to scroll down to see earlier posts. This isn’t the only way to visit a blog. Readers can follow direct links to earlier materials, and can search through archives (or query search engines) for particular materials. But this is relatively rare. For the most part, blogs direct readers to the most recent post first.RCO helps ensure that the difference between blog posts and law review articles is something like the difference between short term and long term memory. Blog posts tend to be about what happened today, yesterday, maybe last week. They are quick reactions to current events and current issues, and for the most part are forgotten a few days after they have been posted. In a sense, blog posts end up as an online equivalent to faculty lounge conversation: They tend to be quick thoughts, comments, and perspective that offer an interesting tidbit about a broader question. Posts might plan the seed of a future article, or stimulate readers to think of old questions in new ways. But the time horizon is short. Blog posts may support and influence traditional scholarship, just as short term memory can work its way into long term memory. But the two are usually quite distinct.
Fast forward to the present, and I now think my old self was wrong. Or at least a bit off. I now think blogging actually does provide an effective way to present new scholarly ideas in many cases. In this post, I want to explain why my view has changed.
The main reason my view has changed is that I think the legal academic culture has changed. In the past five years, legal blogs have become an acknowledged and accepted part of the world of legal scholarship. Exactly why is open to debate. It might be because more law professors are blogging. It might be because our experience has been that what profs say on their blogs is usually the same as what they say in their articles. Perhaps the new online journal supplements have blurred the traditional paper-vs-on-line distinction. Whatever the reason, there seems to be more of a convergence between scholarly blogging and “traditional” law review articles today than existed 4 or 5 years ago. That convergence encourages more scholarly blogging and recognizes its value.
Citations in the Westlaw JLR database are an imperfect metric, but they tend to confirm the change. Consider the number of times that the phrase “Volokh Conspiracy” and/or “volokh.com” appeared in the database. (Usually, although not always, these phrases reflect a citation to a particular post appearing in a law journal.) In 2005, the phrases appeared 24 times in the JLR database. The year 2009 isn’t over yet, with roughly 20-30% of issues schedule for a 2009 publication not yet out and on Westlaw. Still, the phrases have appeared 108 times so far in the JLR database. That’s a lot of cites. Out of curiosity, I did a quick check of my own citations — vain, sure, but at least to an interesting end — and I would estimate that about 25% of the citations to my own work in the last year have been to my blog posts rather than traditional journal articles.
In short, I think we’re seeing a shift in how law professors and legal journal editors view blogs. The old lines have blurred. Blogs have become a significant part of the scholarly conversation. I didn’t expect this to happen, at least so soon. And I don’t know whether the trend will continue. But I think the trend is a real one.
Advances in the technology widely used by legal bloggers have facilitated the changes. My skeptical view from 2005-06 (see excerpt above) was based on the blogging technology generally in use at the time. Back in 2005, comment threads were still pretty new. We didn’t start experimenting with them here until late 2004. At the time, it was also very hard to link posts or hide the bulk of a long comment behind a hyperlink. Also, my recollection is that Google did not index blogs in the early days of legal blogging. Further, it was odd at the time, if not unheard of, to use google or any other search engine to do legal research.
Over time, all of that has changed. Searching the web for legal scholarship has become common. Blogs are indexed and available via Google minutes after they are posted. The culture of comment threads has developed more, encouraging more feedback between authors and readers. It has become easier to link posts and hide long text. All of these changes have helped create an environment much more conducive to scholarly blogging than existed in 2005-06.
Mark N. says:
I think your old analysis on the tyranny of RCO still has some merit, though. It might be relatively easy to mitigate— for example, if Volokh Conspiracy had an index page linking to the more legal-analysis style of posts (as distinguished from the quicker news posts) so they were easier to find, it might allow people who don’t read the blog daily, or happen across a link, to read the blog as a pseudo-law-review. (The tagging system does do some of this, but it’s still fairly messy.)
This used to be fairly common on websites: they would both have a rational structure of content and navigation, and an “updates” page that let frequent visitors see what was new. The shift from “websites” to “blogs” seems to have completely dumped the other structure, though, so all we’re left with is the reverse-chronological “recent updates” page with nothing else.
December 1, 2009, 7:24 pmSpanky says:
And most blogs now offer options other RCO. Many blogs offer the option “view newest posts first” and “view older posts first”. If you are interested enough, you can start with the oldest and get caught up. If not, just read the latest to get a feel and move on.
December 1, 2009, 7:40 pmdrunkdriver says:
I’m not in academia but my impression is that just a few years ago, blogging was seen as borderline eccentric activity only engaged in by the safely tenured or the really tech-oriented; and could even be hazardous to gaining tenure.
Modesty may be preventing Orin from stating the obvious, that this site played a huge part in changing all that. A group of rising young academics ended up creating the gold standard for a legal academic website, almost by accident. This site is the go-to place when you want to find the shorthand thoughts of people whose scholarly work is top-notch. Imagine, if you will forgive an extreme example, if Newton had posted the main points of Principia while he was thinking his way through it.
Today, I think law schools would want their faculty to blog in areas of their interest, if only in hopes of raising the profile for the school.
Many of my Google searches are restricted to “volokh.com” for that very reason- whereas, it would be pretty rare that I would even be interested in searching in law reviews, partly for the obscuritanist writing style that is maddeningly present in most law reviews and almost totally absent here. The culture of this place contributes, too- the bloggers’ style tends to be no-bullshit and to-the-point, whether when responding to each other or posting on their own.
December 1, 2009, 8:40 pmDave Hardy says:
Ah, you youngsters! I can remember back to when you typed law review articles on a Selectric, triple spaced for editing, and when accepted the review and you sent hard copy back and forth with handwritten changes (and major additions typed and stapled to the page). And when it could take six months or a year to get an article accepted… and it might never be, since each law school had exactly one review and it was a buyer’s market.
First attorney I knew who had a computer was Margrit Cromwell, who did domestic work, lots of forms. This would be 1980-82. It was a monster and stored on 8″ floppies and cost her $15,000.
December 1, 2009, 9:01 pmcorneille1640 says:
In addition to all the valuable comments, there would have been accusations that he secretly sympathized with Louis XIV, had supported the execution of Charles I, and was a closet alchemist.
December 1, 2009, 9:17 pmfrankcross says:
Cites don’t mean that blog posts are themselves scholarship. They probably mean that blog posts are like journalism. The New York Times gets cited a lot. Both can contribute to scholarship by providing information or even ideas, and I think blog posts surely do that, just like conventional journalism. Were all of the cites in law reviews? Or have you been cited in any peer-reviewed journals? Because the demand for footnotes in law reviews probably distorts influence somewhat.
I’m only really troubled by citations to anonymous commenters.
December 1, 2009, 9:21 pmOrin Kerr says:
Frank writes:
To clarify, I am not suggesting that citations prove that blog posts are scholarship. I am suggesting that the number of citations suggests, albeit imperfectly, that “legal blogs have become an acknowledged and accepted part of the world of legal scholarship.” That is, the point is about convergence: Blog versus article just doesn’t matter as much as it used to. The willingness of journals to cite blogs is a reflection of the convergence, I think.
As for whether my blog posts have been cited in peer reviewed journals, can you explain a bit more why you think that is relevant? Is your sense that peer review eliminates non-scholarly citations?
December 1, 2009, 9:34 pmJosh Blackman says:
Orin, do you see any value in using collaborative technologies (a Wiki, or perhaps Google Wave), as an effective means to allow Profs to present their scholarship-in-progress online? I have limited experience with Wave, but it seems to be well suited to show a Law Review article as it develops.
December 1, 2009, 9:58 pmOrin Kerr says:
Josh,
In my experience, the value of watching an article develop while it’s in progress is pretty small. Perhaps it might be of interest for a particularly prominent academic, like a Larry Lessig, who would draw an eager following. But I suspect that no one is interested in how the rest of us write articles.
December 1, 2009, 10:01 pmMikhail Koulikov says:
The main reason my view has changed is that I think the legal academic culture has changed. In the past five years, legal blogs have become an acknowledged and accepted part of the world of legal scholarship.
And the world of legal scholarship continues to move farther and farther away from the world of social science scholarship in general – despite all of the discipline’s internal angst about this process.
To Prof. Kerr:
As for whether my blog posts have been cited in peer reviewed journals, can you explain a bit more why you think that is relevant? Is your sense that peer review eliminates non-scholarly citations?
My sense definitely is. From a point of view outside the legal academia, probably the most immediately off-putting thing about a typical (non-peer-reviewed) law review article is not just the number of citations, but *what* is being cited – and how can citations to songs, newspaper articles, books entirely outside the discipline, and, well, blog/forum posts used as actual authority make their way into what should be a particular, and very specialized type of writing/literature/discourse.
In short, citing to blogs may be fashionable, but only in a particular subset of academia, and the wider worlds that law school professors belong to still views it as quirky and puzzling at the very least.
December 1, 2009, 10:40 pmOrin Kerr says:
Mikhail,
I think you may misunderstand my question. No one is suggesting that citing blogs is fashionable: To the contrary, I think we all know that there is a general reluctance to cite blogs. My point is that when authors and law review editors need to cite a scholarly point, they are increasingly wiling to cite a scholarly source even if it happens to be a blog post. For example, if Cass Sunstein blogs about a key scholarly idea, it is okay to cite Cass’s blog version of the idea: An idea doesn’t have to be in a book to be cited. The idea, not the format, is what matters.
Perhaps that is moving away from the social sciences model, or more broadly, from your view of what is a proper “particular, and very specialized type of writing/literature/discourse.” But if so, I do not share in the internal angst about it.
December 1, 2009, 10:58 pmMikhail Koulikov says:
Prof. Kerr,
Thing is, I agree with what you’re saying…but to me, that immediately suggests a much deeper research question – “why are non-peer-edited law reviews far more comfortable with citing blogs than peer-reviewed scholarly journals are.” And, for what it’s worth, *just* the fact that blog citations are appearing with an ever-increasing frequency in what, from the social scientist’s point of view are official documents (i.e., court decisions), just as with citations to Wikipedia in same, raises the possibility that to at least some degree, this process is self-sustaining and self-promoting – once citing to blogs is seen as the cutting-edge, even if mildly subversive, thing to do – there will inevitably be people who want to try it for themselves.
[Comparative citation analysis between law reviews and peer-reviewed journals is still a relatively undeveloped field - I can think of only one recent article that's done something like this - but hey, that also just means there're plenty of opportunities *for* research in this direction.]
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December 2, 2009, 12:09 amOrin Kerr says:
Mikhail writes:
Interesting. A few thoughts. First, I have a very different take on why people are citing blogs. In my experience, extremely few authors and no journal editors would choose citations in law review articles to be “cutting edge” or “subversive.” I suppose it happens once in a while, but the citations to blogs I have seen don’t fit that category. Rather, the usual goal in citing a work in a law review article is to cite the most helpful and important source of a particular idea.
Second, we don’t actually know that peer-reviewed journals cite blogs at a lower rate: This is just an untested hypothesis.
December 2, 2009, 12:54 amuberVU - social comments says:
Social comments and analytics for this post…
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December 2, 2009, 1:37 amJ. Otto Pohl says:
I have never seen a blog post cited in an academic journal article. Does anybody have any examples?
December 2, 2009, 2:02 amMikhail Koulikov says:
Otto,
Definitely in the LIS literature, there are plenty of examples of blogs used as primary sources…but, yeah, as far as secondary sources go, the usual approach is that they are still ranking far below conference presentations, and generally in the realm of grey literature; and thus, not something you want to cite unless you really have no better options…
December 2, 2009, 2:22 amThe Volokh Conspiracy » Blog Archive » Rethinking Blogging-as … « Blogging says:
[...] See the original post here: The Volokh Conspiracy » Blog Archive » Rethinking Blogging-as … [...]
December 2, 2009, 4:06 ammicdeniro says:
Orin wrote
1. Aren’t “online journal supplements” subject to peer review, unlike blog posts?
2. If “[t]hat convergence encourages more scholarly blogging and recognizes its value,” is there evidence that blogging has helped anyone who does it get tenure or a promotion?
Back when I was a professor (of stable isotopy), I would list letters I had published in newspapers on my bio-bibliography, which I had to submit when being considered for promotion. I doubt they had any effect on the outcome.
December 2, 2009, 8:32 amGritsforbreakfast says:
In my experience if you write serious things, serious people will pay attention.
I think early views of blogging like those Orin expressed back in 2005 were too McLuhan influenced. Everyone thought the new medium would influence the message more than really turned out to be the case. As Orin points out, “what profs say on their blogs is usually the same as what they say in their articles.”
December 2, 2009, 9:06 amDoug B. says:
While reading this post, Orin, I kept waiting to see an admission that Berman was right all along. ;-)
Seriously, I am glad you’ve come around to respecting the scholarly potential of blogs. But as I note in this follow-up post at SL&P, I note my disappointment that blog technology has not advanced much to facilitate this on-line space evolving into a truly sophisticated and effective academic medium. Back in 2006 I was hoping we’d see the development of new forms of on-line collaboration like wikis and other means to further improve on-line legal idea development, but such technologies have been slow to take hold. Instead, society has been drawn to short-attention-span on-line media like Facebook and Twitter, neither of which seem capable of supporting the thoughtful and in-depth development of ideas that are often an essential aspect of true scholarship.
December 2, 2009, 10:27 amMike K. says:
Perhaps a factor to consider is the explosion of aggregator ‘extensions’ (If they could be called that), such as RSS or even Twitter. Google allows you to index things, but the more focused and everpresent nature of RSS allows people to stay in touch with different sites and process information in a more meaningful way than simply punching in a search and manually trawling for what youmight be looking for.
December 2, 2009, 10:52 amThe Volokh Conspiracy » Blog Archive » Rethinking Blogging-as … | Baylor says:
[...] reading here: The Volokh Conspiracy » Blog Archive » Rethinking Blogging-as … Posted in Scholarships | Tagged advance-legal, answer, for-the, format, key-problem, [...]
December 2, 2009, 11:11 amjosh says:
Why I like this blog (and Prof Kerr’s posts in particular).
Imagine! Someone from the blogosphere typing these words: “I was wrong”!
December 2, 2009, 11:49 amfrankcross says:
By peer review, I meant the nature of citation. As I noted, law reviews want citations for journalistic type facts, some kind of mundane. Peer review citations tend to be more substantive. If the cites are in law reviews, I think that means that blogs are more likely used as journalism, which is fine and worthy. But it would be different from blogs proposing ideas, models, etc. that for the basis for theories.
December 2, 2009, 12:15 pmjaltcoh says:
You couldn’t search for blog posts on Google in 2005? People writing law review articles in 2005 rarely used “Google or any other search engine”? Really? That’s not my recollection.
December 2, 2009, 1:39 pmOrin Kerr says:
Jaltcoh,
It seems our recollections are different. That’s interesting. Perhaps you could tell us more about your experiences?
December 2, 2009, 2:40 pmjaltcoh says:
That was my experience based on editing a law review from 2005 to 2007.
Perhaps *you* could tell us more about *your* experience? I’ve never heard of Google not storing blog posts as late as 2005. It also contradicts my day-to-day experience even aside from the law review.
December 2, 2009, 3:08 pmThe Volokh Conspiracy » Blog Archive » Responses to “Rethinking Blogging-As-Scholarship” says:
[...] night’s post Rethinking Blogging-As-Scholarship has triggered some interesting responses, and I wanted to provide links for those interested: Doug [...]
December 2, 2009, 3:23 pmOrin Kerr says:
Me:
Jaltco:
I started writing articles around ’96 or ’97, and I started blogging regularly in late 2002. My recollection is that Google started indexing blogs pretty late — 2004, maybe? I don’t remember exactly when. But few articles were available on the web when I started blogging, and SSRN was in its infancy. You went to the library or went on Westlaw to do legal research, not Google. That was my experience in “the old days,” at least.
December 2, 2009, 4:11 pmBloggt, Staatsrechtler, bloggt! : Verfassungsblog says:
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December 2, 2009, 4:17 pmJ. Otto Pohl says:
Mikhail,
Pardon my ignorance, but I do not know what LIS means. I am not a lawyer, but rather an historian teaching in a political science department. What I would like to see if possible is an example of an article citing blog posts. In that sense I was looking for either a link to an actual article or bibliographic information that would allow me to find it on JSTOR. Looking through the most recent journal to cross my desk, Studies in Ethnicity and Nationalism, vol. 9, no. 2, 2009, I do notice that there are no citations to blogs in any of the articles. This is what I would expect. My guess is that in the humanities and social sciences that citing a blog might not make it past peer review.
December 3, 2009, 5:13 amTim says:
I think this is incorrect. It would depend on the author of the blog as well as what authoritative point the citation has in the overall paper.
If I wanted to know what Orin Kerr’s changing opinion of blogs as scholarship was, I’d cite this post. And I’m pretty sure that most people would be fine with such a citation, as it is authored by him, specifically gives his opinion, and even chronicles how his opinion has or might have changed over time.
If I was going to quote this post as some authoritative reference that blogs by law professors now constitute legitimate scholarship, I would expect that to be rejected. But if I was writing a biography of Professor Kerr, or writing an article about blogs as scholarship and wanted to incorporate as many opinions as possible, I can’t see why I couldn’t cite this post.
A blog is a place where one’s personal opinions come out much more than through academic writing. I can’t ascertain too much about what Professor Kerr personally thinks from reading his articles. Perhaps he writes articles arguing for points that he doesn’t have strong personal feelings about, or is indifferent to the conclusion. I can learn his opinion from his blogs, and even analyze some of the brainstorming and internal discussion he goes through before forming an opinion through reading his blogs, and how it might have changed over time. Works published in journals lack the “currentness” of blogging and the personality. So, it seems, that depending on what the authoritative point I’m looking for, citing a blog might be acceptable (while acknowledging that it is likely unacceptable in a lot of instances).
December 3, 2009, 6:48 pmInstapundit » Blog Archive » THE QUOTE THAT ISN’T A QUOTE: This piece in The Isthmus, a Wisconsin alt-weekly, quotes me as follo… says:
[...] As Orin Kerr notes, “I think we’re seeing a shift in how law professors and legal journal editors view blogs. Th… [...]
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