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Citing Blogs in Legal Scholarship:

People sometime ask whether it's proper to cite blogs in a law review article. A few thoughts:

1. Crediting Ideas, Big or Small: Not only is it proper to cite blogs to credit them for their ideas -- it's mandatory, if an observation in your article was borrowed from someone else's blog post, or even just if the blogger had the original observation first. That's the same rule as when you borrow from a law review article, an op-ed, or even a personal conversation.

2. But Check with the Author: It's true that blog posts are often less thought-through than articles or op-eds. (They're also unedited, but many op-eds aren't substantially edited by editors, and certainly not by editors who have knowledge of the law; yet op-eds are certainly citable.) It therefore makes sense to check with the author before citing the post, in case the author wants to elaborate on it, or even recant it in some measure -- it's not necessary, but it can be helpful.

3. Supporting Authority: If, however, you're making an assertion that you want to rely on without proving yourself, and therefore want to cite supporting authority for it -- as opposed to giving credit to the originator of an idea, or referring to a particular counterargument that was seems to be present only in a blog post -- then you should cite a law review article or a book. Those are the sources that are more likely to be the more thought-through and detailed expositions of the argument.

4. Factual Assertions: Finally, you should not cite blog posts for specific facts quoted or paraphrased by those blog posts, whether they are facts about cases, statutes, social science data, or whatever else. Find, read, quote, and cite the original source instead. But of course that's true not just as to blog posts but also as to articles, books, and other sources -- if they are quoting or paraphrasing another source, you should go to the original. Don't let the intermediate source's errors and oversimplifications become your errors and oversimplifications.

Randy R. (mail):
5. Do not cite from any comments section. It is considered poor research, and you can always find a comment to support any nonsensical proposition.
1.31.2008 11:58am
Eugene Volokh (www):
Randy R.: My point 1 still stands as to comments -- if you get an idea from a comment, or even if you discover your idea independently but then find that a commenter originated it (rather than just echoing it), you must cite the comment.
1.31.2008 12:08pm
bobolinq (mail):
Thanks, Orin. These are good thoughts and guidelines. I would just add two (related) points.

First, because blog posts can generally be changed at any time, if you want to make sure that you are citing the post as it existed on a particular day, you should archive the post to make it both immutable and accessible to your readers. A good service for doing this is WebCite, at http://www.webcitation.org.

Second, and relatedly (and perhaps obviously), you may not want to check with the post author before citing the post, precisely because the author might change his post in response to your contact. There will be circumstances in which you want to cite the post as written -- say, because you think it betrays a bias. Thus, although it is polite and probably good practice to check with an author before citing a blog post, it does not make sense in all circumstances. And in any case, if the author does make changes in response to your contact, you should archive the version of the post that you cite on a service like WebCite.
1.31.2008 12:08pm
bobolinq (mail):
And by "Thanks, Orin," I of course meant "Thanks, Eugene."
1.31.2008 12:10pm
Dave N (mail):
My corollary to Randy R's point would be not to cite an anonymous or semi-anonymous comment. Both Randy R and Dave N count in that regard. However, if the source is readily identifiable (and there are some who do not post anonymously) that might be different, particualarly if the poster has demonstrated competence in the area being discussed.
1.31.2008 12:20pm
Timothy Sandefur (mail) (www):
Prof. Volokh--I must say I really disagree with the "check with the author" thing. Why? I never check with the author of a law review article or a book when I cite them. I can see that in some cases it might be helpful if you think the author could expand on some point, but that would probably be best done in a new post by that blogger.

When I cite a blog it is very often because I am citing someone whose views are contrary to mine, and if there were any point of etiquette that counsels me to ask permission or anything, that person would then refuse (or alter the blog post) and deprive me of a helpful reference. The fact that people can retroactively alter their blog posts makes it especially likely that a person who made a comment that later proves embarrassing will then try to weasel out of it when he's called on it in the form of a law review citation.

In my view, there's no more reason to request permission before citing in a law review than there is to request permission before linking to it from my own blog and criticizing it. If the person then chooses to alter the blog post or elaborate or whatever, that's fine, but why should I give him a chance to cover up his tracks before I criticize him?

Now, obviously blogs are, as you say, off-the-cuff, and they should be cited with that in mind (and if cited, should be read with that in mind). And you do say that there's no "rule" here, but I still don't think there's any reason to set out some guideline of etiquette that counsels any obligation on the part of a reader or writer to ask permission before citing a blog post. And I think there is an obvious downside in a bloggers' ability to go back and change his statements.
1.31.2008 12:53pm
Duffy Pratt (mail):
DaveN:

There might be two aspects to a citation. On the one hand, the citation gives credit to the source being cited. I agree that there's no need to give credit to someone who is anonymous. Another reason is to allow the reader to check the source, and its context. For a reader checking the source, it shouldn't matter whether the source is anonymous or not.

Also, there are tags on the internet that are anonymous, but take on an identity of their own. For example, there are respected celebrities in online gaming communities that most people know only by their account names or posting names.
1.31.2008 1:25pm
Justin (mail):
Yes - if these guidelines were followed, my concern in the earlier thread would disappear.
1.31.2008 1:52pm
DJR:
What about citation to a blog as support for an idea that is yours but that the blog author shares? E.g.,

I think Smith v. Jones was a bad opinion. See Eugene Volokh, Volokh Conspiracy, 1/1/08 ("The opinion in Smith v. Jones is terribly reasoned.")
1.31.2008 2:00pm
Randy R. (mail):
Citing to comments is a risky proposition for many reasons.
First, if you do cite, then who are you citing? Most everyone uses pseudonyms. It's pretty darn pathetic that the best cite you can find to support a proposition or idea is that it came from "Crunchy Frog" or some of the other funny, but still sillly names we have seen here. (I mean no disrespect to their pseudonyms -- I find them lots of fun). But in a serious law review article, it will be hard to be taken seriously.

Second, you have no idea whether the commentator actually knows what he is talking about unless you have his or her real name. As a source of actual facts, you will have to back it up with a better, well-regarded source of factual information or use it with a heavy caveat.

Third, it's possible that a commentator may have come up with an idea you had never heard of before, but that's highly unlikely if you have already done some thinking on the subject. (If you haven't, then why are you writing about it?)

Fourth, real journalists frown upon citing commentators for any reason. However, it's okay to scan them to get a certain sense of a community. Ex. "VC commentators, a self-decribed libertarian blog, seem to be against restrictions on free speech in general and are particularly critical of PC-based restrictions."

In the unlikely event that someone actually came up with an idea you had never thought of, and had never seen argued in more authoritative sources, well, I would just use it as my own! But for those who think that's unethical, it's no worse than having a conversation with a friend and he comes up with an idea you didn't think of. Do you cite "Conversation over cocktails with my high school friend Billy Stranger at Logan's Tavern on Saturday, June 12, 2007 at approx. 11:30am"?

The point of citation is so that someone can check on it. I supposed someone could go through the archives of the VC to see if I correctly explained this new exciting idea that an anonymous person had, but what's the point? Either the idea itself stands on it's own, or it doesn't. Issac Newton didn't cite to the falling apple as the source of his idea for gravity in his official paper because it didn't matter. He still had to take that germ of an idea and prove it as a law.

We are free to find and develop ideas from whatever sources we have. It's our job as writers to explore, stretch, poke holes, strengthen those ideas, and give us a measure of its implications. I seriously doubt any one comment ever comes close to that. The law review writer still has a huge task. Citing to comments is just silly, in my opinion.

And anyone who would cite to my comment here is just as big an idiot.
1.31.2008 3:25pm
Duffy Pratt (mail):
"Either the idea stands on it's own, or it doesn't."

This argument, of course, works equally well against any citation of another for an idea. It wouldn't matter much whether the idea were from the blogisphere or the most "serious" publication.

As time goes on, I think you will find the distinction between what you call "serious" law reviews and other forms of legal publication diminishes. I'm also willing to bet that the professors on this blog get a far wider readership for almost any of their postings than they do for any 'serious" article they have ever written.

Similarly, the distinction between bloggers and "real" journalists right now is something that the established press uses to deride bloggers. But the "non-real" journalists are frequently breaking stories faster and with more accuracy than the "real" ones. (Remember the Dan Rather forgeries?)

And your idea that no commentator is likely to come up with an idea that you haven't already thought of is simply insulting to your audience, and even more arrogant of you than I would have supposed.
1.31.2008 3:54pm
Eugene Volokh (www):
Randy R.: If you get an idea from a friend or colleague over cocktails, you most certainly should cite this. You can cite it formally (more common in my experience for e-mail correspondence, less so for oral conversations), or as a more casual "Thanks to X for this insight," but you definitely need to give credit.
1.31.2008 4:17pm
James Grimmelmann (mail) (www):
Also cite a blog if you're going to engage with its arguments. (This is different from citing them to credit ideas; you may want to discredit the ideas.) I expect that this category will grow dramatically in importance as more and more scholarly discussions begin online and then spill over into print.
1.31.2008 4:28pm
Randy R. (mail):
Duffy Pratt: "And your idea that no commentator is likely to come up with an idea that you haven't already thought of is simply insulting to your audience, and even more arrogant of you than I would have supposed."

Perhaps I was mistaken. What I said in my post (or at least meant to say), is that if you are going to write a law review article, it is a long and difficult process. Usually, you think about it for quite a period of time while you refine it, sketch it out, play with it, and figure if you have actually come up with an original idea that is worth all the time and effort to develop. After you have done at least some of that, you might start doing some research on the topic, but I would suspect that your initial research will NOT be commentators on blogs here, but rather respected authors and other sources. First, they are easier to find. Second, they probably give a full explanation of THEIR ideas, with lots of resources and cites thrown in.

So by the time you reach down to the blogs, there should really be few original ideas that you haven't already discovered on your own. I suppose if you went to blogs first, there might be a different case, but then, you still have to cite to the better sources anyway.

In the history of this blog, how many commentators have sua sponte come up with an entirely new legal theory on any thing? I haven't read every one, but I dare say it's darn few. Perhaps people have given you greater insight, or a different perspective, and that is certainly valid. The whole reason I like to comment here is because I learn a lot from other people. But that's not in the category of what I would call a 'new idea'.

I think the heart of our dispute is that I am considering 'idea' to be a bigger thing that what others might consider it.

Eugene: I guess you're right.
1.31.2008 8:20pm
Randy R. (mail):
Okay, if you are going to cite to commentators, for whatever reason, you have to admit that you still have to be very careful. Some commentators here use their real names. Some use fake names. And some use the names of well known people, like George Bush, or Justice Scalia, or imply that they are speaking for that person.

So if an imposter posts something, and it's a terrific new idea, you would have to be careful to state that this idea probably didn't come from our President, but some anonymous person using that moniker.
1.31.2008 8:23pm
Larry Fafarman (mail) (www):
There is nothing wrong with citing blog visitors' comments. It is the comments that have made blogs attractive as references by helping to present a variety of views and helping to make the blogs self-correcting on the facts. In fact, IMO no blog should ever be cited by a court opinion, legal brief, scholarly journal article, etc. unless that blog has a prominent notice stating that there is no arbitrary censorship of comments. Blogs where the bloggers practice arbitrary censorship of comments have no credibility.

And when I read writings about the law, I don't care who the authors are -- all I care about is the persuasiveness the writings.

This old list (dated Aug. 6, 2006) of 32 citations of law blogs in court opinions shows that several of the citations were of the comment sections specifically. This old list (dated Aug. 16, 2006) shows that there have been a lot of citations of law blogs in law journal articles (489 citations are listed and the list does not even include citations in local and state bar journals) but does not say how the blogs were cited.

Duffy Pratt said,
Similarly, the distinction between bloggers and "real" journalists right now is something that the established press uses to deride bloggers. But the "non-real" journalists are frequently breaking stories faster and with more accuracy than the "real" ones.

A big problem is that the BVD-clad bloggers (I prefer "BVD-clad" to "pajama-clad" because Hugh Hefner considers pajamas to be formal wear) have no accountability. They are just untrained amateurs. There is no editorial oversight. The consequences for knowingly publishing false or unverified information are usually small or nonexistent. They do not have to adhere to a journalists' code of ethics. They boast that the comment sections help make the blogs self-correcting but this self-correction cannot operate when blog visitors' comments are arbitrarily censored, as they frequently are. And without press credentials, they lack access to many sources of information.

(Remember the Dan Rather forgeries?)

Yes, I know that BVD-clad bloggers are still crowing about that one. But one lucky discovery does not mean that BVD-clad bloggery is superior to the traditional news media.

Larry Fafarman
Association of Non-Censoring Bloggers
2.2.2008 5:01am
Larry Fafarman (mail) (www):
Randy R. said,
In the history of this blog, how many commentators have sua sponte come up with an entirely new legal theory on any thing? I haven't read every one, but I dare say it's darn few.

Commenters are coming up with entirely new legal theories here all the time. I have done so myself and I am not even a legal professional.

Perhaps people have given you greater insight, or a different perspective, and that is certainly valid. The whole reason I like to comment here is because I learn a lot from other people. But that's not in the category of what I would call a 'new idea'.

What is the difference between coming up with a "new idea" and giving "greater insight" or a "different perspective"? I think that is an arbitrary distinction.
2.2.2008 5:24am