Georgia Harper -- Draft research paper

Changing forms of legal scholarship: It's not just the blog

 

Concept map for existing scholarship | Mass Digitization | Graph 1 | Graph 2 | Graph 3

 

Abstract

This paper surveys the discussion about whether legal blogs are a form of scholarly communication, suggests a variety of possible research strategies to further the discussion, and reports the results of a 6 week self-study of the academic blogging experience.

With few exceptions, the existing literature reflects opinion and non-systematic observation from which eight themes emerge:

1. blogs and blogging enter existing arrays of communication media and academic duties and must find their utility in
   either replacing or extending existing forms;
2. blogging can be synergistic with other academic duties and forms of scholarship;
3. essential features of blogs include their short posts, timeliness, informal style and relatively broad audiences;
4. blogs build communities of readers and can be used to solicit commentary for early-stage ideas;
5. blogs publish instantly
6. blogs have disadvantages as well as advantages;
7. they are part of an emerging Web-based, computer mediated system for establishing scholarly authority; and
8. ultimately, they are not actually causing change, rather, they are one of many effects of a shift within academe towards
   shorter, more open forms of disintermediated communication.

The suggested research questions are based upon the emergent themes, the need to define the concepts and values embedded in the discussion of blogs as scholarship and possible theoretical frameworks with which the phenomena might be more critically examined.

As a step towards further refining theories about the role of blogging in academic scholarship, I report the design, conduct and results from an experience with academic blogging, and conclude with recommended next steps.

Introduction

I began blogging when I semi-retired from the practice of law and became an academic. I now host four blogs. Blogs are interactive Websites that allow their authors, that is, bloggers, to publish commentary on the news, their observations, opinions or musings about topics that interest them. They are able to reach a public audience without knowing anything about building Websites, including hypertext markup language. Blogging is well suited for explaining aspects of my legal specialty, copyright, to a non-legal audience. But as I consider my future academic publishing responsibilities, I wonder whether this particular communication medium might be more than merely a pleasure. Might it be part of the process of establishing credentials as a scholar? And if it is, what does that mean for libraries and librarians?

My new career affords the opportunity to explore just such questions, and because I work in two worlds today, the law and information studies, I can begin my research career by joining both in the study of legal scholarship from an information studies perspective. Luckily, academic legal bloggers (law professors who blog about the law) vigorously discuss whether their blogs are scholarship, so they create a self-identified group to talk with about their blogs in later stages of research on this topic, a collection of blog entries to study, and traditional scholarly literature to review.

But why study blogs? My interests are broader – the future of libraries in a networked world – nevertheless I have, little by little, accepted that the library’s future depends on just this kind of little thing. What I learn about legal blogging and its relationship to legal scholarship may tell me something about academic scholarship more broadly. But more importantly, studying legal blogging could reveal in the context of a particular communication mechanism (blogs) potentially far reaching effects of the ease with which anyone may reach a wider audience today than was possible when academic authors depended solely on publishers to distribute their works. Blogs are instant publishing, and instant publishing will likely do more than just publish instantly. Blogs so completely simplify Internet publishing that they may contribute significantly to changes already taking place in the academic publishing industry, the communities of scholarly authors, and the systems of authority they depend upon to legitimate their work – changes that began 20 years ago when the Internet was young.

Instant publishing enables legal scholars to reach a public audience, one not likely to understand them if they write in academic law review-style about esoteric subjects. If writing for a broader public will have an effect on what and how the author writes, I want to know what that effect might be and its implications for scholarship.

If any part of even some blogs might constitute scholarship, academic libraries will need to assess how and to what extent they should collect and archive blogs (Dempsey, 2007, ¶ 14). Blogs situate discussion within social networks where it is sometimes difficult to discern the contours of document. If top bloggers spend half their blogging time commenting on others’ blogs (O'Keefe, 2007), preserving blogged scholarship will likely pose interesting challenges for libraries. More fundamentally, if blogs are scholarly communication, they will compete with less flexible and less openly available forms that communicate the same types of information, adding to the pressure on traditional scholarly publishers to take better advantage of the Web’s potential to enhance the speed, reach and effectiveness of scholarly communication. Libraries may directly add to the pressure as well, by becoming publishers (Candee & Withey, 2007).

Opinion about blogs as scholarship

Today, there is little more than casual observation about the nature and importance of scholars’ blogs to the academy. As indicated above, one may observe the discussion about blogs as scholarship in blog posts which may or may not contain scholarly writing; in posts that discuss whether blog posts are scholarship, and finally, in the journal and law review literature.

Blog posts about blogs as scholarship

I have only occasionally read posts by law professors that I myself identified as scholarship, but then, what is my definition of scholarship? And whose definition really counts? Orin Kerr, whose views I will discuss later, defines legal scholarship as “research into and writing about the legal system in an attempt to shed light in an important and lasting way on the function, purposes, meaning, and impact of the legal system and role of law in society" (2006, p. 4). But for the most part, ambiguity is part of the current landscape. Other than Kerr, few scholars begin their discussion by defining their terms. We can observe though, at least anecdotally, that  many bloggers themselves feel that what they or other bloggers write on their blogs should in appropriate cases be considered scholarship (Schnell, 2006).

I first encountered discussion of blogs as scholarship on blogs themselves. I searched the Web using Google’s search engine, saved the results on the social bookmarking site, del.icio.us, and began tagging Web pages with “blogs as scholarship” on July 23, 2007. Later, I set up a blog alert to notify me whenever anyone discusses blogs as scholarship on a blog. I received a notice on November 14, 2007, for example. Anne Reed, a practicing trial attorney, was reviewing a book and discussed in that context how blogging had changed the discussion between law professors and practitioners. Reed believes that blogs are affecting legal scholarship. She thinks that the style of blog writing evidences a change in the goals of legal scholars. They want to communicate with a wider audience, an audience that includes her. Recognizing that style matters, they consciously change their style, making discussion of legal theory more accessible to practitioners. Practitioners and professors now talk with each other. She tells a story of this change, in blog-style (¶¶ 4-6):

I began lots of articles. Over and over, I set them aside because they had nothing to do with the work I was doing, or the work anybody else was doing. ... Law professors and law practitioners had little to say to each other in those days [the 80's].

It's all different now. The change isn't entirely caused by the Internet; the focus of legal scholarship itself seems to have shifted toward the practical. (So that, for example, the Empirical Legal Studies Blog could present this week "a particularly exciting example of how empirical legal scholarship can illuminate important matters about how the judicial system actually operates.").

But at least as important, as far as I can tell, is that blogging has changed the way lawyers and professors talk to each other. Practitioners hear from professors daily, not when the quarterly review comes out. Professors hear from practitioners, instead of just each other. And whenever either side posts, the other side chimes in with comments. It's a discussion.

Judges on the Second Circuit court of appeals apparently feel the same way. Douglas Berman blogged about an article covering a conference at Cardozo School of Law in Spring 2007 where judges pleaded with law professors to write more plainly about subjects relevant to the judges (Berman, 2007; Liptak, 2007, ¶ 17): “If the academy does want to change the world,” Judge Reena Raggi said, “it does need to be part of the world.” Berman thinks blogs posts are responsive to this request.

The substance of the blogospheric discussion of blogs as scholarship is similar to the discussion in the traditional scholarly literature, recounted below. The two discussions differ considerably in form, however. The form of a blog post is relatively short (less complex), less hierarchically organized, and lacks careful, qualified phrasing. It usually lacks the footnotes that a polished law review article will contain. The idea that blog-style expands the audience for scholarly discourse appears in both discussion forums. Research about information seeking supports the assertion that how we speak can facilitate the reader’s ability to relate new information to that which is already known and understood (Kuhlthau, 1991). Reed and the judges speaking out at Cardozo would probably agree.

On a related theme, many scholars say that different types of communication media (blogs, presentations and academic papers, among many others) function differently for them, allowing them to express their ideas in different styles. Grainne Canole (2007) blogged about this subject, adding that blogs allow researchers to reveal a more complete picture of what research is about -- process, not just results.

Sometimes blog post comments are equally as interesting as the blog post itself. Jodi Dean (2006) posted a short entry describing positive and negative aspects of typical blog characteristics (¶ 3-4) (the temporality of blogs, the community that develops around them, the question of whether blog-style might be good for academe), but within a long list of comments were ideas I had not seen elsewhere: 

This form of writing encouraged me to express my ideas clearly by placing me in contact with individuals coming from very diverse backgrounds, and also forced me to think quickly on my feet in quick-time exchanges. In certain respects, I believe that this sort of exchange could be described as a sort of isometrics for the mind (Posted by: Levi | June 27, 2006 at 12:13 AM)

Illustrating the support for and criticisms of blogs we will see in the traditional literature, Brian Leiter, author of Law School Reports, posted an entry discussing why he was not attending the Bloggership symposium at Harvard Law School (described in more detail below) (2006a, ¶ 1):

I didn't really want to attend a conference on what strikes me as a topic of no intellectual interest. *** I find it hard to see how blogs can have much significant scholarly impact when the most significant scholars rarely participate in the forum, or, at least, rarely participate for scholarly purposes.

Apparently, although Leiter does not enable comments on his blog, some of his colleagues may have communicated with him privately, because he updated this entry the same day with links to two posts that he felt exemplified “[f]irst-rate stuff that anyone would have been proud to have written,” adding that the Internet made it possible to get the authors’ posts out quickly to a wide audience (¶ 2). In a more recent post, Leiter concluded a reflection about whether blogs help or hinder academics by noting that speaking out publicly on important matters is part of academic life (2007, ¶ 8).

The idea of blog as daily journal appears in the literature and the blogosphere. Dan Rodrik, rethinking his own earlier questioning whether the time not spent working on journal articles outweighed blogging’s advantages, decided that he and his economics colleagues would likely continue to blog partly because of the “stunning” number of people who read their blogs, and because the blog acts as an important intellectual journal (Rodrik, 2007, ¶¶ 4-5):

Not so incidentally, one of the unexpected scholarly benefits of having a blog is that it is like keeping an intellectual journal. You get an idea, you jot it down in your blog. Some months later, you vaguely remember having had the idea and you google your own blog to recover it.  I am not kidding: I google my own blog all the time...

And here is the evidence: the first third of my talk at Nottingham was based on a couple of blog posts from a few weeks back (this and this).

The scholarly discussion

Quantitative research

Scholars begin to address the question of whether blogs are scholarship in journal literature at about the same time they begin to discuss the subject in the blogosphere -- in 2006 -- while general descriptions of blogs appear earlier. For example, in 2005 Herring, Scheidt, Wright and Bonus analyzed blog text and structure, collecting data for 55 features of 203 randomly selected blogs. The authors compared empirically observed characteristics with commonly held beliefs about blogs, and exposed several myths. Seventy percent of their sample consisted of personal blogs; only 12.6% were “filter” blogs, those whose authors link to and comment on other bloggers’ posts. The authors had expected filter blogs to be the most common blog forms (p. 151). Slightly more than half of the blogs surveyed linked to other blogs (p. 154), in sharp contrast to popular belief that linking to other blogs, for example, having a blogroll or other list of recommended blogs, is de rigeur. Most surprising, blog entries received on average .03 comments and the majority of entries received none (p. 156). Further, comparisons of newer entries with older ones suggest that posts do not continue to collect comments; rather, comments occur during a brief period when the post is fresh (p. 156). Fewer than a third of blog posts contain any links to external Web sites at all, this, again, in sharp contrast to the popular perception that blog posts are built around an external link (p. 156).

Herring et al. are notable for reporting an empirical research study. They create some basis for comparison in later discussion and suggest where research in this area might focus next. I will discuss other of their findings below to illustrate themes that emerge from other articles.

Qualitative research

Craig Saper also systematically observed blogs (2006), but focused on the qualities of a small number of blog posts. He quotes liberally to show how “[t]he blogademia resists the hegemonic academic machine” (¶ 2). In short, for Saper, blogs are gossip. But just as quickly as he appears to dismiss blogs, he suggests that gossip and scholarly knowledge are more porous categories than we might think (¶ 7).

[W]hen academics gossip they may also lead to a new form of knowledge. When bloggers discuss infrastructure (who in your department is an idiot or a psychopath; how poorly the administration of your University functions; or simply the trials and travails of the tenure-track publish or perish mill), they also discuss, unwittingly, the social processes of knowledge production, what counts as scholarship, and discipline formation.

Saper’s short report, other aspects of which I will discuss below, provides a qualitative view of academic blogs and begins to raise the question of whether even in their most banal, they may be scholarship.

Themes emerging from the discussion of blogs as scholarship

Blogs fit within existing arrays. Blogs enter an ongoing conversation. Scholars communicate in a wide variety of ways, for different purposes, and with the intention to reach different audiences(Borgman, 2007). Thus, many authors start their essays by describing where they believe blogs fit within the existing arrays of academic duties and means of communication.

Herring et al., assessing blogs generally (not focusing on whether they constitute scholarship), situated blogs among pre-existing off-line genres (diaries, travel logs, letters to the editor) and related Web-based genres (home pages), concluding that blogs are neither Web-natives nor particularly unique, but are hybrids of off-line and online precursors (2005, p. 160). Saper places blogs within “a larger process of rhetorical invention … which includes wikis, audio, Flash, tagging, AJAX-driven systems, database-run systems, etc.” (2006, ¶ 12). 

In 2006, Harvard Law School held a Symposium on Bloggership: How Blogs are Transforming legal Scholarship (hereafter, Bloggership). The Washington University Law Review collected the papers in volume 84, number 6, published November 16, 2007. Twenty-three panelists discussed a wide variety of topics. Twenty-two of the panelists were bloggers. In his short conference paper, Eugene Volokh situates blogging among the three responsibilities of academics (p. 1). These include dissemination, discovery (constituting the core of scholarship) and "doing things," which, in the field of law includes activities that change law, litigating cases, or consulting on cases, among other undertakings. He notes that dissemination to the public was not a high priority or a big part of most academics' lives in the past. They spent most of their time discovering and doing. But blogging is changing that for Volokh and others like him who see the reach of their blogs far exceeding the reach of their law review articles (p. 1). He believes, however, that one really has the choice to spend more time disseminating knowledge publicly only after one has tenure (p. 4). Notably, other pre-tenure Bloggership participants disagreed with this conclusion (Hurt & Yin).

Kate Litvak (2006), the only Bloggership panelist who is not a blogger, is a skeptic. This University of Texas Law School professor situates the blog within a milieu of important changes in legal scholarship over several decades and concludes that a blog’s importance pales in comparison (p. 5):

[L]ots of new developments have been transforming legal scholarship lately. New technologies. Availability of data. Rapid distribution of current research. Co-authorship. Growing ties with other disciplines. The influx of people with Ph.D-level training. Increasing compartmentalization and specialization of academic disciplines. Rise of resource-intensive fields. The shift of practitioner-oriented work to practitioner authors. Internationalization of scholarship and faculties. As compared to all this, how important do you think blogs are?

Blogs can be synergistic with other academic duties. Volokh explores how bloggers may achieve synergism with discovery and doing, to avoid an "either/or" choice (2006, p. 4). For example, he believes being a well-known blogger enhances success when submitting an article to a journal, and increases opportunities to present at symposia, to work on legislative proposals and to consult on important cases. He also suggests that bloggers serialize their drafts for comment on their blogs, find key nuggets from older works that might be new to many in the lay blog audience and summarize them on blogs, and use blogs to solicit examples to support arguments the scholar needs to make. He concludes by observing that blogging about current cases can directly affect the development of law if a judge reads and uses the scholar’s blog posts, and that small instances of applying law to a new situation can be blogged quickly and effectively, thus placing discovery on the blog itself.

Dan Berman also believes blogs complement other duties. He believes blogging can reconnect scholarship with teaching and service, where the ultra-long law review article threatens to sever the link (2006, pp. 6, 11). He believes that blogging facilitates all three of his responsibilities in the academy and, at the same time, fosters collaboration and makes it easier to update casebooks and treatises. For example, Bill Patry has a blog devoted to updating his year-old, seven-volume copyright treatise, in which he sets forth his reasoning on changes he is considering for the treatise (2007).

Essential blog features include blog form and style, temporality, and a potentially broad audience. Saper’s report highlights a frequently discussed blog quality, quoting a series of authors comparing the ways they express themselves on blogs and in formal writing. They vacillate between belief that their less formal blogging style spills over into their academic style, and fear that if blogs become mainstream, it may be because they compromised the informality that attracts many academics (2006, ¶ 12).

Bloggership panelist Berman (2006) develops his argument, that blogs should be integrated into legal scholarship, in traditional law review article style -- he is methodical and generously footnotes his work. He believes that blogs will improve both the form and the substance of legal scholarship. He notes that law review articles have become so long and complex that none but other scholars has time to read and digest them. Berman agrees with Volokh that "small ideas," those not justifying a 75-page law review article, should not be turned into a 75-page law review article, but can be more effectively and quickly disseminated by blogging (p. 8). Linking can replace heavy citation, more directly engaging existing scholarship. Berman also notes that, as a unique form of communicating, blogging may fit some scholars better than others. Blogging allows some professors who might not otherwise participate to make significant contributions to public discussion. He thus sees strength in diverse forms of scholarship (p. 10).

The temporality of blogs is a common theme in discussions of their form and substance. Some refer to this quality as “newsiness,” the tendency to build blog posts around the news item, and post frequently. Orin Kerr, for example, believes news is the main niche for blogs: "If you want a running commentary about the latest news in the legal field in short, easily-digestible chunks, blogs are perfect. The popularity of many legal blogs suggests that many people fit this bill" (p. 5). Kerr may be underestimating blog potential when he suggests that the reverse chronological order and newsy-orientation are tyrannical. He believes readers read only the recent posts (p. 4).

On the contrary, it is not a rare reader who investigates a blog’s categories links, or finds older posts directly from Internet searches based on key words. My own Google Analytics blog visitor logs suggest that from 1/3 to 1/2 of readers arrive on particular blog pages from search engines, thus directly accessing older materials. The newsy orientation of blogs may not impede access to more deeply buried materials, any more than would the location of those same materials in a back issue of a journal.

Further to his argument about temporality, Kerr describes the year-and-a-half mulling over that a good law review article might get, compared to the currency of a blog post (pp. 6-7). Understandably, Kerr cannot see how a blog contributes meaningfully to the former. The assumption that disseminating mulled-over scholarship is what we expect blogs to do may be in error, however, and further suggests that Kerr may be defining scholarship narrowly if he believes that all forms should facilitate one type of work.

Blogs build community and encourage commentary. A common belief about blogs is that they build community – a loyal group of regular readers who will comment upon the author’s posts (Berman, 2006; Volokh, 2006). Litvak perceives blogs exclusively in this way, that is, no more than a means to solicit commentary on new ideas. In her opinion, however, blogs will fail in this regard because the risk of harm to the scholar in making preliminary statements publicly far outweighs the benefit of commentary and suggestion that cannot be required, but only requested (p. 8):

So, my grand theory has a lemma: blogs cannot turn into cyber-workshops unless they can punish a potential commentator’s silence. And I don’t think they can do that. I also have a corollary: if a blog cannot turn into a real cyber-workshop, the value of keeping exchanges public is not high enough to justify the costs (which are, again, possible embarrassment, understated criticisms, and preemption). Thus, in most cases, bloggers seeking a forum for their early ideas are better off asking for comments privately.

She may be correct that the risks in this area outweigh the benefits for some authors, especially those who envision public communication in such narrow terms. Litvak mentions other possible benefits of blogging only at the end or her article, in an offhand comment ( public dissemination, for example) (p. 9), suggesting that she has not seriously considered other roles for blogs or has dismissed such roles.

Blogs publish instantly. Another important theme is the quickness with which blogs allow their authors to disseminate their ideas, and the benefits of avoiding the lengthy delays of traditional publishing. Volokh observes that blogs raise the pleasure-to-"scutwork" ratio of disseminating publicly: no dealing with editors; no arbitrary word limits; no time delays (2006, pp. 2-3). Kerr acknowledges the value of being able to just write a post, hit send, and have the post appear (2006, p. 9), but does not explore the implications of this ability. Recall also that even Leiter, scholarly blog skeptic (although he blogs), acknowledged the benefit of instant publishing (2006a, ¶ 2).

Blogs have disadvantages. Not all commentators thought blogs had value as legal scholarship. Orin Kerr questions whether enthusiasts might simply wish to legitimize their activities (2006, p. 3):

At the very least, it’s tempting to use these essays to legitimate the importance of blogging for law professors. We law professor bloggers often spend several hours a day on our posts, and it would be nice if we could celebrate that time as essential to our scholarly mission as academics.

Leiter warned that because even mediocre blog posts can generate “buzz,” that is, a cascade of positive attention based on a few laudatory comments from non-expert, but influential, bloggers (2006b, ¶¶ 3-4), then blogs lower academic standards and contribute to the degradation of legal scholarship generally. Berman believes blogging should be accepted as scholarship, but closes his essay by listing a number of disadvantages of blogs: they can waste time and be addictive; they can become a popularity contest; and they can become a burden if they seem to demand constant updating (2006, pp. 14-16).

A question sometimes raised in the wake of a well-publicized failure to get tenure, be promoted or hired, is the extent to which the candidate’s blogging of controversial opinions may have contributed to such career decisions. After Yale declined to hire faculty applicant Juan Cole, a prominent expert and blogger on the Middle East, and a tenured professor at the University of Michigan, The Chronicle of Higher Education commissioned short pieces by eight bloggers, including Cole himself, addressing the question whether blogging can derail a career (Althouse, 2006; Berube, 2006; Cole, 2006; DeLong, 2006; Drezner, 2006; O'Connor, 2006; Reynolds, 2006; Vaidhyanathan, 2006). While the consensus was that it very well could, the reaction to that fact was not what one might expect. Most bloggers were unsurprised by the possibility and accepted it as part of being an academic. As Leiter observed (2007), and most of these authors agree, speaking out on matters of public concern comes with the academic territory (Althouse, 2006; Berube, 2006; Cole, 2006; O'Connor, 2006; Reynolds, 2006; Vaidhyanathan, 2006).

Finally, as noted above, Litvak all but entirely dismisses the value of blogs as scholarship because the author cannot compel comment (the benefit) yet must reveal publicly her early-stage ideas (the cost).

Blogs are part of an emerging system of computer-mediated authority. The recognition that bloggers cannot define what scholarship is underlies much of the discussion. Tenure and review committees still determine that definition, and these scholars do not suggest that their blogs will count for tenure any time soon. But Michael Jensen (2007), director of strategic Web communications for the National Academies, believes that the criteria for what counts as scholarship are changing. He explores how the measures and meanings of authority are evolving out of an environment of scarce information into one of abundance. Some new forms of authority have already taken root in the non-scholarly community: Google's page rank, group participation news and trend-spotting sites like Slashdot, del.icio.us' collection of favorite sites where authority results from community tagging, and voting on posts and comments at sites like Daily Kos. These and many others engage participants to filter super-abundant Web materials.

Jensen claims that what he calls Authority 3.0, built on algorithmic filtration, is just around the corner. National Academies Press already utilizes several examples. Jensen summarizes the elements from which Authority 3.0 draws and explains the implications of the inevitable shift for authors, universities, and scholarly publishers (¶ 31-32).

[C]onsider the preconditions for scholarly success in Authority 3.0. They include the digital availability of a text for indexing (but not necessarily individual access — see Google for examples of journals that are indexed, but not otherwise available); the digital availability of the full text for referencing, quoting, linking, tagging; and the existence of metadata of some kind that identifies the document, categorizes it, contextualizes it, summarizes it, and perhaps provides key phrases from it, while also allowing others to enrich it with their own comments, tags, and contextualizing elements.

In the very near future, if we're talking about a universe of hundreds of billions of documents, there will routinely be thousands, if not tens of thousands, if not hundreds of thousands, of documents that are very similar to any new document published on the Web. If you are writing a scholarly article about the trope of smallpox in Shakespearean drama, how do you ensure you'll be read? By competing in computability.

Discussion of new ways to validate scholarship occurs in the blogosphere as well, with librarians among those discussing the alternatives (Cohen, 2007; McKiernan, 2007; Siemens, 2007). Laura Cohen, in particular, recommends that libraries take an active part in accelerating establishment of new models of authority for what she terms, “social scholarship” (2007, slides 18-20).

Ultimately, however, it is not just the blog. One Bloggership participant felt that asking whether blogs were legal scholarship framed the wrong question. "The relationship between blogging and the future of legal scholarship is a product of other forces—the emergence of the short form, the obsolescence of exclusive rights, and the trend towards the disintermediation of legal scholarship" (Solum, 2006, p. 2). Lawrence Solum refutes Litvak's assertion that blogs have nothing to do with and will have no effect upon scholarship with examples illustrating their value (citations by courts, in law review articles, qualitatively exceptional posts, etc.) (pp. 2-3), but also argues that blogs are one of many effects of larger trends that are changing legal scholarship. While pre-existing forms of scholarship will continue (mediated, long-form journal articles requiring assignment of exclusive rights to publishers), new forms are becoming popular, even preferred (p. 12):

That’s the world as it existed before the Internet, before Google, before blogging. Law review articles and treatises. Exclusive publication rights. Card catalogs. The Index of Legal Periodicals. Even things that were new, not so long ago, are now like familiar pieces of furniture. Academic press books and peer-reviewed journals. Westlaw and Lexis-Nexis. J-stor and Hein Online. But that world is giving way, Radical change is already upon us.

Solum suggests that short forms such as idea papers, blog posts and even wikis may replace some types of law review articles, or serve as first drafts for later publication (pp. 13-14).  He notes that the Social Science Research Network (SSRN) serves admirably as an open access venue for idea papers and even the full text of articles, but, because SSRN is a closed system that does not allow full-text searching of its articles, it still plays the role of mediator in a way that inhibits full access (p. 15). Solum identifies the growth in popularity of Google as the driving force behind disintermediation (p. 16):

And the new role of Google has an enormously important consequence. There will come a day when the saying, “If it isn’t on the net, it doesn’t exist,” is true. Open access legal scholarship will be the only legal scholarship that is actually read. Closed-access legal scholarship will be the tree that falls with no one in the forest. The correct metaphysics will confirm its existence, but the best epistemology will question the significance (but not the truth) of that judgment.

Solum examines the relationship between the concept of readership, the changes he has identified, and the economics of legal scholarship. Readership is the key to both intrinsic and extrinsic rewards. Short forms, open access, disintermediation, reduced costs, and reduced time to publication increase readership. Blogs are a paradigmatic example of a cheap, quick, disintermediated, open access, short form. "Their importance, if any, is as the medium (or technology) through which the incentives and institutional forces that are pushing legal scholarship towards the short form, open access, and disintermediation are doing their work. If it hadn’t been blogs, it would have been something else" (p. 23).

Opinion outside the legal academy

Scholars in other fields express similar opinions on their blogs and in the scholarly literature. Kathleen Fitzpatrick writes passionately about a future for scholarship that embraces blogs. And why not? "[T]he very purpose of scholarly reading is the discursive exchange and development of ideas amongst peers" (2007, anti-hypertext, ¶ 3). Fitzpatrick’s article cites blogs – lots of blogs – in addition to more traditional forms of scholarship. But more importantly, the article is a blog. It appears, section by section, as a series of linked posts in CommentPress, a type of blog that invites comments to sections, paragraphs and the entire article. The author indicates that she blogged an earlier draft to solicit comments. So she authored the article in conversation with others, and she stays in conversation with others in this CommentPress version, while a simultaneously published version appears in the peer-reviewed Journal of Electronic Publishing. Her overall message is clear: blogs facilitate interaction around a text and are expanding scholarship, just as scholarship is expanding the blog.

Future research directions

Extending the conversation

With only a few exceptions (Herring et al., 2005; Saper, 2006), discussion of this topic reflects very preliminary, personal understandings of the status of blogs as scholarship, with little if any attention to definitions, concepts, theory, data or critique. This is normal for legal research. Typically, authors state their opinions about a subject, based on their observations of primary and secondary legal source materials, and analysis. I have always wondered why most legal scholarship seemed to have little effect on law or policy, but, from a social science perspective, mystère résolu. The force of mere opinion, even based on impeccable logic, is not by itself very persuasive, compared to problem statement, theory, method, empirical data, analysis and conclusions (Czarnezki, Heise, Eisenberg, & Ford, 2007), and compared to clear, understandable explication (Berman, 2007; Liptak, 2007).

But this data-lite reportage also seems normal from the perspective of social science scholarship. The discussion is simply at its beginning. Authors provide personal observation and opinion from which others may easily identify the need for quantitative and qualitative observations, analyze underlying assumptions and values, and speculate about fruitful theoretical constructs and questions for future study.

Clearly, the discussion gives us a starting point for asking questions. We can test the assertions:

• where do blogs fit within existing forms of scholarly communication;
• how might they be synergistic with other academic duties;
• what are blogs’ qualities;
• do they build community and provide commentary for early-stage ideas;
• are they hurting scholarship;
• how is their authority established; and
• are they part of a wider move towards more freely accessible, disintermediated and shorter forms of scholarship?

Because the literature is descriptive, and not based on systematic observations (with exceptions noted above), analysis of blog text would be helpful. The opinions expressed hint that, even on the best academic blogs, perhaps only one in 100 posts meets the criteria of scholarship, however defined. Many authors situate blogs within an array of other types of scholarly communication. A comprehensive survey and description of scholarship venues now available, and what, if anything, blog posts might add, would aid our understanding of the roles blogs are playing or could play. The legal literature is already widely available openly on the Web. Only treatises remain locked up. In fact, most of the articles I reviewed for this paper were available on SSRN or otherwise freely over the Web. The Bloggership symposium papers were available a full 18 months before being published in a subscription-only law review. Also available online for free: “friend of the court” briefs in important cases, most news stories, op-eds, all federal cases, and most if not all federal and state regulations and statutes. So, what might blogs add? Perhaps Solum is correct that blogs are a result, rather than a cause, of the changes taking place in the system of scholarly communication (Borgman, 2007; 2006).

Examining assumptions

Exploration of particular assumptions implicit in the discussion could enrich it considerably as well. If we addressed the paucity of definitions, we would quickly find ourselves immersed in the beliefs and values embedded within the system of scholarly communication. For example,

• what is legal scholarship;
• what are the criteria for tenure and promotion;
• what does blogging lack, if anything, with respect to those criteria, and relative to a law review article
  (what are blogging’s disadvantages);
• what might the academy gain by blogging (what are its advantages);
• what is (are) the mechanism(s) for legitimizing blogs; and
• what might be blogging’s role in addressing current problems in scholarly publishing?

Current forms of legal scholarship reflect assumptions about the nature of information that may not be compatible with assumptions underlying blogs. Interactive Internet applications, such as blogs, explicitly reflect an atomistic view of information, that it is separable, unattached to and unaffected by its various modes of transmission. An essential point of such applications is to enable, even encourage, the transfer of text, images, sounds and audiovisual elements from one context to another, instantly and presumptively without loss of meaning. Academic documentary practices, on the other hand, are deeply embedded in institutions that impose training and discipline on scholars to maintain the practices over time, and that give authority to the documents themselves (Frohmann, 2004, pp. 396-397).

As a result, the history and structure of an academic discipline’s scholarship will reflect a set of practices and a system of institutional relationships that shape its genres of writing (Agre, 1995, ¶ 5). The style of the text reveals a conceptual framework, an orientation towards the intended audience, the audience's cognitive situation, and the audience's uses of the information (¶¶ 20-22). “It is in function of the assumed abilities and expectations of the targeted readers that the author, publisher, or printer decide on the forms that texts will be given” (Chartier & Fagan, 2004, ¶ 44). Do blogs affect significant changes in practice, institutional relationships, conceptual frameworks and assumptions about readers?

Further, information exchange plays a role in maintaining social groups and representing shared beliefs (Sundin & Johannisson, 2005, p. 37). Sundin & Johannisson would suggest that people visit blogs to participate in a virtual community, as much as to seek information. Rioux’s studies of information acquiring and sharing behaviors, applied to blogging, would suggest that bloggers are similarly motivated – they acquire and share information to participate in virtual communities (2005).

Theoretical frames of reference

Only two authors suggest even a rudimentary framework for discussing the question of whether blogs are scholarship (Solum, 2006; Volokh, 2006). No one explicitly theorizes, thus the opportunity for enriching the conversation through theory development or application is obvious. One could, for example, propose a model for how the scholarly community legitimates writing as scholarship, identify possible relationships between the form scholarship takes and its acceptance, and formulate on that basis a testable prediction regarding acceptance of blogs.

We could also ask whether blogging may reflect a reasonable response by members of the academic community to publishers’ resistance to change. Academics have begun to put pressure on publishers to modify business models so that scholars may take better advantage of the digital environment (Borgman, 2007; Chartier & Fagan, 2004, ¶ 35; Healy, 2007; Suber, 2007; Vigen, 2007). One could hypothesize that blogs’ features described in the literature, such as instant, inexpensive, easy, world-wide publishing, address serious shortcomings of traditional publishing. Applying Pickering’s (1995) model of the mangle to scholarly practice, we might explore whether and how scholars’ responses to the publishing industry’s resistance will change the forms of scholarship and scholarly publishing, if, as Pickering suggests, all aspects of the system of scholarly communication are subject to change in the plane of practice. Similarly, actor-network theory could help to explain how a shift to shorter, more open and disintermediated forms of scholarship threatens to disintegrate and reform the various elements (scholars, universities, libraries, technologies and publishers) of the scholarly communication network.

Sundin & Johannisson emphasize the need to focus on questions of power that may be especially interesting in this context. For example, we might ask how the scholarly community will determine whether blog posts are scholarship, or how publishers and authors will negotiate the move to freely available, disintermediated communication. Sundin & Johannisson also alert us to examine how blogs (all technologies) mediate particular perspectives and viewpoints, reminding us that scholarly communication cannot be studied in isolation from the means scholars use to communicate (2005, p. 34).

Broadly conceived theories of information behavior or information practice (Savolainen, 2007), for example, the social practice approach that “sees a mutually shaping relationship between information and collaboration practices and the tools developed for purposes of communication and knowledge sharing” (p. 123), suggest interesting investigations. One might study to what extent blogs facilitate scholarly communication beyond the boundaries of the scholar’s primary practice group, where she is part of a larger community that is interested in the law but whose members do not read literature they view as too long, too dense and unrelated to their concerns (Liptak, 2007; Reed, 2007). Or, just as institutional practices define proper information seeking (Savolainen, p. 125), one might study how institutional practices formalize rules governing proper information development and dissemination, how such rules affect the forms of new scholarship and how new forms such as blogs may come to affect those rules.

One could explore the blog as a boundary object. As Van House observes (2004, p. 56), boundary objects must be "plastic enough to adapt to local needs; have different specific identities in different communities; robust enough to maintain a common identity across sites and be a locus of shared work." It may be that law professors themselves become a sort of boundary object when they blog to communicate beyond academic boundaries on a regular basis, especially to the public. Are they, in effect, translating between/among two or more communities?

Collecting experiential data: Blogging self-study

The literature about blogs as scholarship suggests many promising areas for investigation, but as a preliminary matter, I experimented with academic blogging myself. The use of a researcher’s own experience and skills, or “data in the head” drawn from personal, research, and literature-reading experience can lead to much better theory building, the ultimate goal of qualitative research (referring to Strauss 1990) (Alston & Bowles, 2003). The University of Texas at Austin’s Libraries installed a WordPress blog on the Texas Digital Library Website for me, using the CommentPress theme to encourage commenting. I serialized a first draft of an academic paper about the effects of mass digitization projects on copyright law and policy (Mass Digitization), posting one section each week for six weeks. I announced the experiment on other blogs I host, on listserves, at a conference I attended during the experiment; and asked friends to announce the experiment on their blogs. I used Google Analytics to monitor traffic to the site and correlate it with the announcements and weekly postings, and kept a journal of my thoughts about and reactions to the experience throughout the six weeks. I actively reviewed the literature reported above while I conducted the experiment, and utilized the themes emerging from the literature, and my experiences with blogging Mass Digitization, to begin constructing a survey for later administration to help broaden my understanding of how bloggers experience blogging.

Blogging Mass Digitization in light of the revelations in the existing literature enabled me to examine aspects of the experience to which I had not attended in previous blogging. My experience suggests that bloggers idealize blogging in some respects. I doubt that all of their observations and opinions will hold up to systematic observation and scrutiny, though some are likely to be supported.

Nevertheless, the academic power hierarchy and the publishing industry’s hegemony will make the future for academic blogging difficult, despite its benefits. Because of these dynamics, blogs present interesting objects of study for those who wish to better understand the politics of academe. One can say the same about every computer-mediated, networked form of communication today – they all challenge existing power relationships and will eventually reconfigure institutions and scholarly publishing. No aspect of the community is likely to emerge unchanged.

Methods

Installing CommentPress

Installing CommentPress is “tricky,” according to the U.T. Libraries’ Dustin Slater, who installed it for me. He completed the installation over about a two-week period. He reports that the code contained many deviations from standard procedure and best practices, complicating the adaptations needed to situate it within the Texas Digital Libraries environment. The blog also needed significant debugging over an additional period of two weeks once Slater invited me to begin testing it. I was able to launch the blog on October 18, 2007 with my initial announcement on Collectanea. This was Slater’s first blog installation, so he believes it will be easier to bring up blogs in the future, based on this experience.

Drafting in public

I chose a subject for this experimental public drafting about which I have formed opinions over a long period. Initial drafting did not require additional research. I had been collecting the evidence to support my arguments for most of 2007. I drafted an overview first, setting out a series of arguments that I would later expand. Each week I posted a new section, building on earlier sections supported by evidence from the Web, to which I linked on a “Project resources” page. I tried to time announcements to new posts, when possible. The Resources page acted as a repository for links to all the Web-based references I will eventually include in the final draft. In this early stage of drafting, however, I did not link directly to the resources from the text; rather, I referred readers to the Resources page to explore the resources in context groupings (orphan works, mass digitization projects, legal resources, retreats from DRM, etc.). I thought that a lot of textual linking could distract from the theme of each paragraph, and might reduce time on the blog and the likelihood of commenting.

Monitoring data

Google Analytics provides a wealth of data about blog visitors and the Libraries already had an account for the Texas Digital Library, so it was easy to add the Mass Digitization blog to the account. I spent about an hour each week exploring the tool and the data to become familiar with all the facts that I could bring to bear on the story I want to tell about my experience. The data is permanently retained on Google’s servers, but can also be saved in various file formats to illustrate points I may wish to make.

Journaling

I wrote in a journal each week, and more often when particular events occurred that were noteworthy, for example, when I received two spam comments. I wrote from a personal perspective, commenting mainly on how it felt to be drafting publicly, how this experience compares to other drafting experiences, how I am affected by seeing the locations where readers came from, how long they stayed, what they read, what they didn’t read, and how colleagues reacted when I talked with them about the experiment.

Results

Without data, my impression of blogging would have been very inaccurate because it would have been based on the presence, or rather, absence of comments. Few or no comments would have suggested few or no visitors, but that was not the case. The comment rate on my blog for the 40 days ended November 26, 2007 was .25%, but an estimated 250 visitors viewed pages 790 times. The blog welcome page, containing no substantive information, garnered the most views (324), followed by the overview page (156). Each successive section was viewed fewer and fewer times, partly because each page was present on the blog for shorter and shorter periods as the experiment wound down. For example, visitors viewed the conclusion page only 4 times, but I posted it on the day before the project ended. They viewed the resource page 51 times; the comment pages, 46 times. Small numbers of visitors viewed the category pages (fair use, irrelevance of law, business models, creative commons and orphan works).

Once they arrived on the blog, visitors tended to stay for a while, spending, on average 6 - 11 minutes on the site, depending on the pages they viewed and whether they were new or returning visitors.

Visitors came from 93 cities, including Austin, Washington, New York, Albany, Ann Arbor, Chicago and London, and from nine countries, including the US, Canada, Australia, Puerto Rico, Italy, Norway, Switzerland and the UK. They were referred by or came from nine sources (including of course, the ones from which I announced the experiment) including the Copyright Crash Course, Collectanea, Lifelong learning (my personal blog), Google, bloglines (an rss subscriber), The Googlization of Everything (where I commented on one of Siva's posts), Moodle, and the Texas Digital Library. New visitors slightly outnumbered returning visitors but returning visitors spent four to five times longer on the pages they visited, and viewed nearly twice as many pages per visit.

There were clear correlations between the announcements and visits. It is probably safe to conclude that some, although not all, announcements increased traffic to the site. For example, I made 14 announcements over the course of the experiment and visitor tracking recorded above-average numbers of pageviews on about half of those days or the day immediately following. Graph 1 shows the overview of traffic to the blog annotated with the announcements, numerical totals for the peak days and the average number of pageviews per day, for comparison. Once published, the sections received most of their pageviews within 2 weeks. After that, traffic fell off, but did not disappear entirely. For example, graphs 2 and 3 show the traffic pattern for post numbers two (All quiet on the legislative front) and four (Ok, ok, DRM and contracts were a big mistake; now what?).

Interpretation and discussion

The blogging experience may be very different for those just starting out from the experience of those who have been blogging for years (Hoffman, 2007) or who were well-known before they began to blog (Volokh, 2006). This particular experiment only lasted 6 weeks, so the Mass Digitization blog was not likely to become well-known. Bloggers who report amazing numbers (“stunning” numbers in one case referenced above) (2007; Rodrik, 2007, pars. 4-5; 2006, p. 1) can leave the impression that everyone will experience that kind of readership. Clearly, I did not.

More surprising, however, is the absence of substantive comments. The presence of modest numbers of comments about many blog posts attests to the fact that comments are or can be a significant feature of a blog, but apparently, only at much higher overall numbers of visitors, or only within certain communities built around certain bloggers. At least I am not alone in being alone: over the summer, University of Michigan’s Office of Scholarly Publishing collaborated with the authors of The Ithaka Report (Brown, Griffiths, & Rascoff, 2007) and the Institute for the Future of the Book, to publish the Report in CommentPress, about which Maria Bonn, Director, Scholarly Publishing Office, University of Michigan Library commented recently (p. 1):  

We are watching this experiment with interest. In the first three weeks that the Ithaka report was available in CommentPress, this version of the report was viewed thousands of times. We received dozens and dozens of e-mails and verbal reports from members of the academic community noting their enthusiasm for the projects. And yet, the discussion the report invites has been relatively quiet. We look forward to seeing if the level of discussion remains constant or increases and to performing some analysis to see what this experiment can teach us about the appropriate alignment of content, user communities, and technology.

Beginning academic bloggers may not be the only ones who need to exercise patience and perseverance if they want to join the ranks of those who really are able to build community through conversation and commentary around a blog. These experiences suggest that the time it takes to build community could be a good subject for investigation through longitudinal study, and should be included among the questions I ask in my survey.

If it were generally the case that providing feedback for new ideas is not one of the blog’s strong points for a novice academic blogger, what are the advantages of blogging, if any? The same data that tends to dash the hope of commentary, exalts public distribution. Two hundred fifty people have looked at one or more of the pages that constitute this early draft of Mass Digitization. Even though I plan to polish it, run it through the site a second time with links and citations, and submit it for publication (open access, certainly), it may be that the style of the blog post, short, informal and timely, attracted some viewers who would never have looked at the article in its final polished form. If so, these readers constitute a new audience. But does the blogger lose the legal scholars in the process, those who could be counted on, at least, to note that the article was published (they’ll see it in some index or table of contents service if it’s in their area of interest) and perhaps even read it in its polished form? Might those readers also peruse the draft in blog-style? If so, it might be reasonable to assume a net gain of readers. And that’s just from the perspective of the value to the scholar (since public dissemination of one’s work is one of the academic’s responsibilities). If we assume that the non-legal reader would not likely read the same argument in formal, lengthy law review-style, those readers probably have gained some benefit as well.

But there may be other benefits to be considered: I simply had a very good time blogging the Mass Digitization article. On November 20, I commented in my journal:

Reading an interview with Cory Doctorow just now, in which he talks about how O'Reilly tolerates piracy b/c the most pirated of his works is also the most profitable, and seeing how that quote will fit in with what I'm writing at Mass digitization, and how I can link to the interview in the writing resources page --- wow, this is just so cool. I love this writing/reading/remixing from the real world. It is so much fun! The relaxed pace of one section each week for a first draft – very doable. This process is much more creative and involves so much more fortuitous discovery than the way I would have written an article before, based entirely on law review articles, cases and statutes. Those will still be part of the story, but only as background. I don't plan to use them to support my argument really. Maybe a little, but quotes and real stories from the public that illustrate the points seem to me a lot more persuasive to the audience I want to reach, not just lawyers. It is a public audience that probably includes many more non-lawyers than lawyers.

The subjective experience of pleasure in crafting an argument “in the flow” of the network may be a more important key to the future of blogs and other Web 2.0 forms of interactive communication than it might seem. All things being equal, why wouldn’t scholars prefer to perform their duties in a manner that they enjoy if they have that choice? Increasingly, they will have more choices about how to publish their research findings. Thus, the questions related to who determines what counts for scholarship, who will win and lose if traditional forms of publishing diminish in importance, and how the scholarly community will reform itself around more open, shorter and disintermediated documentary forms are the most interesting ones. Blogging scholars themselves are taking steps to identify works of and about peer-reviewed scholarship reported on blogs. The Website, BPR3 (Bloggers for Peer-reviewed Research Reporting), offers both a way for bloggers to identify their serious posts and a way for readers to find them. The BPR3 icon, affixed to posts about peer-reviewed research, creates an aggregation system like the Creative Commons that links all the posts bearing the icon back to the BPR3 Website and soon-to-be search capabilities. What will they think of next?

Conclusion

The literature about blogs as scholarship reports mostly people’s opinions about the benefits and disadvantages of legal scholars’ blogging. Research based on systematic empirical observation of any kind is sparse. Nevertheless, clear themes emerge suggesting promising areas for investigation, including, 

• studies designed to systematically document qualitative as well as quantitative aspects of the scholarly blogosphere,
• studies about attitudes towards the bloggers’ assertions among bloggers, their non-blogging colleagues and institutional administrators,
• studies that look at the larger environment of which blogs are a part, that investigate the transition occurring within the academic publishing milieu and its effect on the use and acceptance of shorter, open, disintermediated forms of scholarly communication, such as blogs, and
• the eventual reformation of the scholarly communication network in light of the changes resulting from its full integration into networked environments.

The state of research on these subjects invites a wide variety of studies that can deepen the discussion and inform the analysis of what effect scholars’ blogging is likely to have on academe, over what time horizon. Because it is so preliminary, not yet addressing any major concern in the field of information studies, the literature sets the stage for research from a variety of perspectivest. To extend my own observations, I will identify a group of legal academic bloggers in the spring to survey regarding the themes discussed herein, the observations from my self-study and hypotheses about the acceptance of blogging as scholarship.

Footnote:

It is not possible to determine how many unique visitors visited just the Mass Digitization pages. I applied the site ratio of visitors to pageviews (.32) to the number of pageviews for the Mass Digitization pages, which could be determined, to arrive at 253.

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