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Should legal blogs be seen as scholarship?
By Donalee Moulton
Halifax
December 21 2007 issue


Alastair Lucas
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Legal scholarship. Even the phrase itself sounds weighty. Befittingly, so is the process. It starts with a relevant and credible idea or issue that is then thoroughly researched and analyzed. An academic paper is subsequently prepared, peppered throughout with properly indented references, citations, endnotes and footnotes. Finally a jury of one’s peers assesses the effort. The lucky authors, usually after revisions, find their work published in a legal journal many months, often years, later.
Blogs, on the other hand, are almost instantaneous. An expert, or not, has an idea or issue on which they want to expound. Fingers hit the keyboard, and hours, if not minutes later, the information is online for all to read.

So can the two forms of communication possibly be on par with each other? Can blogs carry the same substance as journal articles – inside or outside a court of law?

There are no definitive answers to these questions, at least not ones that are agreed upon as either a profession or a judiciary. Bruce Archibald, a law professor at Dalhousie University in Halifax, said that blogs “are a source of ideas which would have to be acknowledged in a footnote if quoted. On the other hand, they are not peer reviewed and would not have the added cachet or weight of that status.”

“The virtue of peer-reviewed journals is that the review process gives you the benefit of some professional assurance of the quality of an individual’s work, but other forms of dissemination of knowledge have advantages as well, including timely publication and ease of accessibility to one’s readership,” said Philip Bryden, dean of law at the University of New Brunswick.

“During my tenure as dean,” he noted, “none of my colleagues has brought their blogging activity into the scholarly assessment process at UNB, but that is not to say it will not happen in the future.”
Indeed, as technology continues to drive Canadian lawyers at work and at play, the popularity of blogs, the ease of their use, and the potential for information dissemination grows exponentially. In his article Are Scholars Better Bloggers? Bloggership: How Blogs Are Transforming Legal Scholarship, Paul Caron, associate dean of faculty and Charles Hartsock Professor of Law at the University of Cincinnati College of Law, noted that, “According to the most recent data, there are more than 34.5 million U.S. blogs, 600 law-related blogs, and 235 law professor bloggers.”

As the numbers climb, so often does credibility. The University of Calgary law school, for example, is starting an Alberta courts and tribunals blog that will focus on cases, tribunal decisions and certain Alberta-related legal issues.  “Our consensus is that contributions to the blog are indeed scholarship,” said Dean Alastair Lucas.

“Though they will be written in more accessible language and form, like other legal scholarship, they will require theory development, synthesis, analysis and clear argumentation,” he added. “We also expect that some blog pieces will be expanded into law review articles and the like. Strictly, these are not peer reviewed, in the law journal sense, but they will be reviewed and edited in the faculty under the supervision of senior faculty members.”

Such academic rigour will help to elevate the blog, and others like it, closer to the status of traditional legal scholarship. Another key factor is also at play: the blogger’s status. “If (authors) have a big reputation based on scholarly books and peer-reviewed articles, blog statements could be influential,” said Archibald, who acknowledged he is not personally a big reader of blogs.

That influence could also be global. “Technology is making it possible for scholars around the world to develop networks of people with similar interests and expertise much more easily than was the case even a decade ago,” noted Bryden.

The issue of blogs as legal scholarship is both contemporary and, possibly, contentious. Ironically, the issue itself has received the stamp of legal scholarship. In 2006, the Berkman Center for Internet & Society at Harvard Law School hosted Bloggership: How Blogs are Transforming Legal Scholarship, a one-day conference that brought together more than 20 of the leading law professor bloggers in the U.S. Their reason for being together is highlighted in the preamble to the event:
“Web logs (‘blogs’) are transforming much of American society, including government, politics, journalism, and business. In the past few years, blogs have begun to affect the delivery of legal education, the production and dissemination of legal scholarship, and the practice of law.”

Nowhere does that evolution appear to be happening more quickly than in the U.S. Judge Richard Kopf, a U.S. District Judge in Nebraska, said in an interview with Law X. 0 (http://3lepiphany.typepad.com/3l_epiphany/), a member of the law professor blogs network, that he reads blogs every day. “At least some of them,” he said, “are ‘substantial and legitimate forms of scholarship.’ Blogs written by lawyers, judges, law professors and law students that provide solid information and critical analysis on subjects the authors know something about are just as authoritative as other secondary sources.”

“My guess is that legal blogs will partially fill the ‘practicality’ gap between the legal academy and the rest of us,” he added. “Blogs provide a unique opportunity for law teachers to directly influence the development of the law in near real time.”

They certainly are more accessible to members of the legal profession, and beyond. Whether they are legal scholarship remains to be debated — or dismissed. Douglas Berman, the William B. Saxbe Designated Professor of Law at The Ohio State University Moritz College of Law, believes it is a moot point.

In his article Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs, he stated that, “A general debate concerning whether law blogs are or can be legal scholarship makes little more sense than a general debate concerning whether law articles or law books are or can be legal scholarship.

“Put simply,” he added, “blogs – like articles and books – are just a medium of communication. And, like other media of communication, blogs surely can be used to advance a scholarly mission or to advance a range of other missions.”

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