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Mirror of Justice
This is the first of four posts providing coverage of the panels at this year's Seventh Circuit Bar Association Meeting. Adopting the same approach as my coverage of FedSoc's student symposium back in February, it covers the morning's media panels, interspersing my notes and photos with materials from the conference supplement and observations from yours truly. Christine Hurt has already provided an excellent short summary of this, so I will add what I can. This is a lengthy post, but it has a lot to cover, and hopefully does so concisely in a way that will give some value to both attendees and those who missed it.
The day opened with a speech on the role of old media by USA Today's Joan Biskupic.
Biskupic starts with telling the story of a quiet morning at the Supreme Court, April 18th, scheduled for argument in nondescript cases, when the Chief announced that the opinion of the court on Gonzales v. Carhart would be handed down by Justice Kennedy. Kennedy didn't hide his disdain for the procedure (and Biskupic didn't in this speech hide her disdain for Kennnedy); on their way out of the court, Biskupic told a colleague that they were lucky: they'd just witnessed history.
Being there as something enhancing the experience and engendering better reporting is a recurrent theme in Biskupic's talk. Unlike bloggers, she argues, they're there in the room, picking out non-verbal cues at oral argument, for example.1 Biskupic views traditional media as having a role in building the historical record: they present, first, what happened; opinion, if it bleeds in, comes later.2
Whether you agree that "being there" is in itself an advantage or not, the other side of Biskupic's point - the institutional advantages of trad media - are inescapable. They can usually talk to litigants, sometimes to the Justices, and have press passes giving them access to the Supreme Court virtually around the clock; no blogger, so far as Biskuspic knows, has even asked for such access. (My suspicion has to be that whether they'd be given one depends on who the blogger is: Bashman could probably get one; one of the FireDogLake rabble likely could not, although to be fair, they have made a real effort to do original reporting, such as from the Scooter Libby trial.) This "being there" aspect also gives trad media certain insights beyond the abilities of the blogosphere: in 1993, a court employee told her that Justice White - not a conspicuously sentimental man - was collecting photos and mementoes, prompting Biskupic to speculate in print that White was seriously considering retirement. His retirement was announced a few weeks later. Likewise, interviewing Justice Ginsburg earlier this year, Ginsburg told Biskupic that the term would be "revealing" and that the court would make a turn in an area that was important to her. Still: on being told this, did Biskupic write a story predicting Carhart was a lost cause? I don't recall reading it.
On the other hand, some of Biskupic's points about the advantages of trad media fall flat. She was able, she tells us, to pre-write several versions of her Bush v. Gore story based on what she already knew about the Justices' views on the issues raised from previous cases. Familiarity with nine Justices' jurisprudence on equal protection and Article II might distinguish Biskupic from non-legal bloggers, but it in no way distinguishes trad media from new media; it would be perfectly possible for someone familiar with the court's treatment of racial preferences to write up several draft blog posts handling the potential outcomes in Meredith Co. v. Jefferson Co. Bd. of Ed. and Parents Involved v. Seattle Sch. Dist. No. 1, thus reducing time to post when the opinions come down. Had I thought about it ahead of time, I could fairly easily have written the lion's share of my (still-delayed) Mass. v. EPA article long before the decision came down; the standing decisions it rests on have been there for a while.
The observations that I particularly latched onto in Biskupic's comments were those suggesting that trad media is an art form of sorts, in the sense that it poses certain challenges of form that don't apply to bloggers:
I should interpose the comment here that to me, all these restrictions would be unacceptable; half the fun of blogging is "that it is an innovative format that challenges" - and permits - "us constantly to think and write in new ways, that demands an intense, individual effort to generate a flow of ideas on a daily basis."6 To me, feeling unconstrained by any limitations on form (of which, to some extent, I consider Ann's concern for "bloggyness" to be one) is part of the great joy of blogging. I'm equally free to write one line of snark or twenty eight pages of analysis, depending on what's more apt to the needs of the subject.
Finally, a theme Biskupic stressed several times was that (presumably in contradistinction to blogs) her job is to present what happened: "her obligation is first to the facts," as Christine put it in the post linked above. This demands a detour, because I'm not sure that I'm ready to take at face value Biskupic's assertions of trad journalistm's devotion to "facts first" and to neutrally reporting what happened.
For example, in reporting on Carhart, Biskupic's headline read "Court takes harder stance on abortion; Ginsburg says ruling 'recalls ancient notions' about women."7 Hard to get any more "first" than the headline, and just because every word of something is factually accurate, that doesn't mean it's pitched stright down the middle. How often do Biskupic's headlines quote the dissenters' concerns in cases where Biskupic doesn't viscerally disagree with the majority? Not often, I'm willing to bet. A quick Lexis search doesn't reveal any other examples. Lawrence v. Texas? "Gay sex ban struck down," not "Gay sex ban struck down; Thomas says law 'uncommonly silly' but not unconstitutional."8 U.S. v. Virginia? "Supreme Court Invalidates Exclusion of Women by VMI," not "Supreme Court Invalidates Exclusion of Women by VMI; Scalia says ruling 'drastic' and 'contrary to our established practice.'"9
Consider also the role quotes play in trad media articles. Biskupic's Carhart story quotes but one law professor, Vanderbilt's Suzanna Sherry, "who said the ruling was not a complete rejection for abortion rights advocates. ... 'In terms of the language, the decision is just dripping with disdain for abortion rights,' she said. 'It is clearly designed to put abortion in the worst possible light. It is rhetorically very disturbing, but the court is still sticking with the idea that government cannot impose an undue burden on abortion.'" Was Sherry the only professor who answered the phone?
Or consider Biskupic's reporting on United States v. Lopez. There, Biskupic quoted two law profs, one who a reasonably informed reader in spring 2007 might expect to favor the result, and one who might not:
"This is quite possibly the most important decision of the decade in how the country does business," said University of Tennessee law professor Glenn Harlan Reynolds, an expert on the constitutional issues invoked. "It could mean a drastic reordering of roles of federal government and states."
Harvard law professor Laurence H. Tribe called the decision a "dramatic move" by the court, but added, "If ever there was an act that exceeded Congress's commerce power, this was it." He noted that in enacting the 1990 Gun-Free School Zones Act, Congress did not make findings of an interstate commerce link to the dangers of guns on school playgrounds, nor did it establish any federal jurisdictional authority to distinguish the law from any similar regulations at the state level.10
In hindsight, to an informed audience, that has a sheen of balance. We know where Glenn stands on this stuff, we know where Tribe stands on it. But Biskupic was not then writing for an audience of reasonably-informed legal commentators in spring 2007 who get up in the morning and read Instapundit: by the claim of her own speech, her target reader was and is above average if they know how many members there are on the court. Read that quote from Glenn again closely, and pretend that you know nothing about Glenn Reynolds and his views. Considering the target audience of this piece, these quotes aren't going to tell its target audience that this is a sensible ruling curbing an overreaching federal government; rather, the average reader will remember that two law professors said the ruling was "dramatic" and would lead to "drastic" results. Moreover, were any doubt left over, the reader who knew little about the case or about federalism is helpfully prodded by Biskupic that the interstate commerce clause has in the past "been used to enact legislation on a variety of issues from discrimination in restaurants to the size of farm crops." Such a statement is (likely by design) going to remind the reader that broad Congressional power has had good results in the past, and lead them to infer that limiting that power is bad.
Judge Sack has observed that "Judges use [law review articles] like drunks use lampposts, ... more for support than for illumination,"11 and at the subsequent panel, Althouse recalled (as she has on her blog before) the experience of journalists calling her to talk about a case, clearly with a particular quote in mind, and probing until they get it. Biskupic can't write that Kennedy's opinion dripped with disdain for abortion rights, or that it's designed to put abortion in the worst possible light, but she can find a law professor to quote saying essentially the same thing. That is, you have to wonder how journalists choose which quotations to include in their stories, and you have to wonder to what extent trad media use quotations "like drunks use lampposts": to say whhat they themselves would like to say through the agency of another person.
To return one last time to Biskupic's Carhart coverage, a shorter report in the final edition told readers that the decision "emphasized the value of fetal life" (itself not a value-free phrase by any means), and quotes the evaluation of only one source: "'This ruling flies in the face of 30 years of Supreme Court precedent and the best interest of women's health and safety,' said Planned Parenthood's Eve Gartner, who had argued the case." 12 Gee, Planned Parenthood's attorney doesn't like the result - film at 11! Not only that, but she was the losing attorney in the case! Certainly someone who should be quoted without any kind of balance. The only counterbalance even offered was a characteristically empty quote from the President.
Careful selection of sources isn't always quite so blatant; when the court decided U.S. v. Virginia, Biskupic quoted Ted Olson, representing the VMI ("It's a very sad day when the Supreme Court decides that public educators don't have the option of single-sex education. We ought to have as many tools available to create successful adults"), but counterbalanced it with lengthy quotes from "Marcia Greenberger, co-president of the National Women's Law Center" ("This is a great win for women on a number of fronts ... Women who want a shot at going to VMI now will have this educational opportunity and access to its alumni networks in politics and government. The opinion also sets out in forceful terms that institutions have nothing to fear by opening their doors to women, that institutions will not be ruined") and Janet Reno ("[t]he Supreme Court overwhelmingly has given life to the promise in the Constitution that all of us deserve an equal shot at educational opportunity") and added that the ruling "constitutes the strongest endorsement of sexual equality by the court in recent years."13 The reader is not left under any illusions as to how they are supposed to feel about the result, unless they are ambivalent about sexual equality.
To be sure, blogs are more blatant in their biases (for example, I titled my article on Carhart "put the cork back in the champagne bottle"), but to the extent that everyone is biased (Biskupic's offhand use of the term "far right" to describe what are essentially mainstream conservative positions, and characterizing abortion as being about "choice" shows exactly how seriously one ought to take a claim of throwing straight dice), I think it's far better a blog that wears it on their sleeve than trad media's platonic pretense. There was a hoo-ha a while back when Linda Greenhouse did an interview displaying just how deep her bias runs, but to me the lesson was that all journalists would better serve their readers if they pulled back the veil, giving readers a chance to reevaluate the claims to compensate for the filtering through the individual reporter.
Since Biskupic was on the first panel as well as making opening remarks, the two rather run together. Former Wisconsin broadcast journalist Mike Gousha (now of Marquette Law School) moderates Biskupic, the LA Times' David Savage (after JCG one of my favorite MSM reporters), Jonathan Turley, and Marquette's Joseph Kearney (an alum of Our Hero's chambers, for those counting).
Biskupic had suggested in her talk that the Supreme Court press corps have dwindled in number since 1989 when Biskupic started covering the court; asked why, she suggests that limited resources have pushed editors who can even maintain Washington bureaus to assign reporters to sexier beats that more reliably generate hot news - the White House, Congress and so forth. Moreover, SCOTUS is a homework-intensive beat, which I suppose is to suggest that the kinda of reporters with the firepower and experience to do it well are more expensive than your average reporter.
Savage thinks that one way in which the internet has changed reporting is in terms of deadlines. He used to take full advantage of having a Pacific Time deadline. This allowed him to spend more time reading and thinking about the case before filing his story at maybe 8pm eastern, long after Greenhouse and who have you who had deadlines in Eastern Standard. However, now, the LAT website wants a story to compete on the same timeframe as the NYT's and the WaPo's websites, so he's filing by 10:45 Eastern. Still, that isn't wholly bad, he thinks: having to write a shorter story for the web on a short deadline yet still having to write something for the print deadline actually forces a level of creativity. The need to have something new to say for the print edition in addition to the intervening story for the website drives up the quality of the second story that goes into print. It raises the game.
But is the media actually doing a good job, wonders Gousha?
Turley thinks the media is turning out good-quality reporting, but he notes that for his contributions to it, he feels particular pressure with regard to Biskupic's point that trad media can't edit. The old saw that you get it first, but get it right, but above all else, get it first, makes him particularly nervous because he's a lawprof. One of the networks apparently got Bush v. Gore wrong (he's not naming names).
Kearney distinguishes between different parts of the trad media. Reporters, he thinks, usually (I think this is an exaggeration, unless we're specifically talking about the SCOTUS press corps) do their homework and get it right. Echoing a point raised by Biskupic (see above), editors fare a little worse in his assessment: they keep reducing the space into which reporters have to pour their assesments, so even if the reporters are good, they're often going to struggle to explain the minutiae of a case to a public who don't know how many Justices are on the court. Of course, my own suspicion is that this can only increase the chances of reporters falling back on their own views about the case: thus, Mass v. EPA becomes a case about global warming rather than about standing and Chevron, and Carhart becomes much more about abortion than about ConLaw. And lastly, in every way, and exempting nobody, are the editorialists who appear to be next to worthless (my characterization not kearney's).
Gousha asks about the perception that the Justices are getting more media-friendly. Is that healthy? Turley is an emphatic no on this point; the court is both too insular and too public; too insular because it has refused TV cameras in the courtroom (about which more anon), too public because the Justices get themselves into trouble by speaking publicly about cases at "partisan" events. kearney disputes this characterization, pointing out that many if not most of these appearances are at law schools, not least because the Justices feel an obligation to educate and to train the next generation of lawyers. Savage adds that it's not as if the Justices are appearing on "Meet the Press" to chew the fat.
Biskupic's not sure that it isn't healthy that "they" get into trouble making these speeches: the further they get away from the beltway, it seems to her, the less guarded their speech, and isn't it healthy we hear what's really on their minds? I can't help but suspect that the "they" she has in mind is composed of a number less than six. This makes me think immediately of something I blogged about a couple of years ago, the attempt to force Scalia out of the Hamdan case. In marginalia, I wonder if pushing certain justices out of certain cases is what Biskupic has in mind when she suggests there might be some value to Justices speaking their minds on the lecture circuit.14
Furthermore, Biskupic raises a very good point: it's conventional wisdom that the Justices' public appearances have increased,15 but is it so? she suggests that what's really increased in proliferation is the reporting of the speeches and the media available in which to report it. For example, I blogged about a Scalia-Breyer debate put on by FedSoc and ACS last year; that event might well have happened a decade ago, but would it have been "webcast"? A decade ago, were there such things as "webcasts"? Not to my recollection. Justice Black probably never did an interview for cable news, but what does that prove? Cable news didn't exist. In short: wake me up when Scalia does BloggingHeads.tv.
Naturally, since this is a panel about trad media coverage of the Supreme Court, we have to talk about cameras in the court. Biskupic echoes something the Chief said recently: Justice Souter's position on cameras in the court is well known, and they all respect that. She says (with what seems from the second row like a rhetorical nudge-and-wink) that some Justices might play for the camera (it doesn't take a genius to work out which one she has in mind). Savage notes that SCOTUS is a good beat for print, but it's death for television; cameras would change that, but at what cost? It would change the court, and he makes my perennial point for me: look what it's done to Congress. Kearney agrees that it will change the court and adds that it isn't necessary for opponents of cameras to be able to precisely delineate how it will change the court for the charge to carry weight. He also notes that the chances of getting cameras in look grim; regardless of the actual merits of such a change, the court would internally regard it as so major a change as to require consensus to the point almost of unaminity.
Gousha notes that audio tapes have become available and asks how this plays into the cameras question. Savage and Kearney both think that audio tapes are (and maybe even cameras would be), helpful for enhancing the court's reputation. We have a very good court that's very intellectually engaged, and the court's prestige would be enhanced by more of the public knowing this.16 Savage thinks there's something to the frequent suggestion that some counsel may be inclined to grandstand, or more practically, if they go in expecting to lose the case, to speachify to the T.V. audience. On the other hand, Turley's all for it: tapes, cameras, the lot. Having participated in several televised arguments in state supreme courts, he doesn't think it will change the nature of arguments. Nor does he believe any lawyer would grandstand for the cameras, and even if they did, they'd get cut to ribbons by Scalia and Souter. He wants to know what the distinction between audio and video is anyway. Kearney isn't able to fully articulate the difference, but asserts that the very nature of the medium makes television very different to audio tapes. [UPDATE: Ann points out that "different to," rather than "different from," is a deprecated English colloquialism. I may have just doomed my chances of admission to the Chancellor's English Society. ;)]
Turning to the nomination process, there seems to be substantial agreement that the process is broken. Biskupic is frustrated because the Senators are basically incompetent to carry out the task they are required to play, yet the hearings are in some ways the public's main window into the Court. Savage doesn't look forward to the hearings; he feels the special interest groups are constantly refighting the Bork nomination, and Turley goes yet further: the hearings were devoid of substance,17 "a joke" and even "embarrassing" to sit through. He walked out in the end,18 and finally says something I agree with without reservation when he wonders aloud why we're wasting our time with a process that clearly no longer worked if it ever did. Turley also has the funniest line of the day, observing that Roberts and his family were so perfectly telegenic as a nominee that they looked as if they had been raised hydroponically by Karl Rove for the sole purpose.
Finally, turning to the future of print media. Kearney thinks that the trad media will survive. Picking up on Biskupic's riff, he suggests that they will retain a role because they're there - or to put it more substantively, they're providing the raw materials that the blogosphere work with in terms of reporting. So in a way, I ponder in marginalia, they're going to become glorified wire services. Turley is more optimistic for trad media: he thinks they'll retain a "dominant" role, but it's changing; moreover, certain names have "trademark value" - Savage or JCG, for example. He agrees with Savage's point from earlier that having to break the story on the web and then having to find something new for the print edition is raising the quality of the game. Savage thinks that blogs enrich the coverage, but can't fully supplant it. (In the margin, I wonder if there's an argument that the open partisanship of new media might push trad media to raise their game and live up to their bias-free ideals.) Finally, Savage suggests that in an increasingly partisan time, newspapers can help because people who go to blogs tend to find blogs that agree with them; in the supplemental materials, Jack Balkin strongly dissents from this point, and I think Balkin has the best of it:
When [bloggers] criticize each other, they’re always linking to things they criticize, and this creates the possibility of [readers] being exposed to ideas and opinions [they] wouldn’t otherwise have been exposed to.
. . .
... [P]eople don’t recognize that blogs [can] have ... [an] ameliorating effect on political discourse. They don’t yet realize that the Internet may be actually be better than traditional mass media in this respect, especially because contemporary marketing techniques increasingly seek out segmented audiences for books, television programs and radio talk shows. ... Moreover, the Web versions of major newspapers increasingly ... link to opinions from many different perspectives that their print versions do not. Finally, reading the news using aggregator sites like Memeorandum and Technorati puts different views in front of you in ways that traditional media do not.19
To all of which, I'd throw out the suggestion that perhaps newspapers as mid-level content aggregators are at more risk from blogs than broadcast media. If the principal threat blogs pose to law reviews is the demise of the case note,20 because blogs have taken over that role and can do it better in a far more timely fashion, similarly, if trad media's principal claim to relevancy is qua a fact originator as Kearney suggests, that is a field already occupied by wire services. The commentary angle can be done better and more rapidly by blogs. And broadcast media is (basically) free. That leaves a very narrow sliver of land for print media to occupy.
Sometime print journalist and now Judge Diane Sykes leads the new media panel, and characterizes the theme of this section of the conference as how the public can and will find out what the law and the legal community are doing. Although Savage told her earlier that "the way newspapers are going, we might all be bloggers by spring," for today, Sykes' bloggers are Howard Bashman and Profs. Ann Althouse, Jason Czarnezki, Rick Garnett, Christine Hurt and Eugene Volokh. They were picked out to reflect her perception of various approaches to blogging about law: the more academically-inclined (Jason), some provide an informational service (Howard), some focus on specific areas of law (Christine) or specific practice areas (unrepresented on this panel but referenced: SCOTUSblog and 7th Cir blog), some are broader than law but quite closely tethered to law and public policy (Rick; Eugene and his conspirators), and some offer personzalied and idiosyncratic commentary on law and everything else (Ann).21 (For what it's worth, we're probably somewhere between Ann and the Volokh conspirators.)
Sykes opens the batting by asking how the bloggers see their own blogs.
Althouse looks on blogging as a form of performance art, one that she'd in some ways waited all her life for. She's not especially concerned if she's perceived as a law blogger and views blogging as a daily process of discovering what interests her and what she thinks about what's happening; anything that comes over the deck may be bloggable, and she draws on sources that appeal both professionally and personally.
Bashman started blogging five years ago to the day, the day before. He'd been hoping to gain a window into what was happening in the lower courts, and as someone who'd considered becoming a journalist was interested in how journalists cover the court. He's clearly been successful: visitors to the Chief Justice's chambers report that Our Fearless Leader frequently has How Appealing on his screen.22
Czarnezki thinks of ELSblog as very dry, and scholarly-inclined, and hopes it can be useful in bridging interdisciplinary studies. Hurt also contributes to what might be considered a particularly specialist audience blog: Conglomerate made a group decision to remain fairly closely-focussed on business, economics and law relating to either. Readership went down a little as a result, but on the plus side, they've cornered the Delaware Bar demographic.
Garnett took his inspiration for both blogging and hairstyles from the Bashmanator, and sees his goal as contributing to the academy, both directly and indirectly. In particular, he offers a strong point about how a group blog where the principals don't always agree - indeed, disagree strongly on some subjects - can model to students what conversation and civil debate between people who disagree can look like.
Volokh likes group blogs as well, not least because it makes it easier for mere mortals - in contradistinction to Howard and Glenn Reynolds - to keep a good flow of posts.23 Less so than Althouse but more so than Conglomerate, the conspirators try to remain open to off topic material and blog about whatever seems interesting. "If you're vain and you want lots of readers, you've got to have a core, but you have to mix it up." They have several goals; they want to explain the law to their non-lawyer audience. They want to do something that contributes to the debate among lawyers, including technical posts. And as a fairly widely-read blog, they hope to be able to shape the debate to some extent.24
Sykes turns the discussion to the question of filtering: blogs are largely unmediated and ulfiltered. Is that a pro or a con?
Volokh thinks it's very much a pro: You have experts in the field explaining directly to the public.25 Moreover, he says, op/eds aren't well-fact-checked or edited, so is it really accurate to say that trad media is filtered? This is a point picked up on by several other panelists:
Facts also figure in the internet's democratization of access to primary sources, Volokh thinks; now, the reader can go direct to the source (and blogs can link to the source),26 so in a way, the reader becomes the filter. While this is certainly true to some extent -- think of Yale's Avalon Project or LOC's Thomas service -- in the cold light of day, I'm not sure that idea is as impressive as it sounded in person: the problem is that it assumes the reader is competent to act as a filter.27 Isn't it something of a "let them eat cake" attitude to tell Biskupic's legally illiterate audience that the internet has liberated them from the media's filter because now they can read proposed legislation or court opinions directly. I think it's easy to forget just how intimidating a Supreme Court opinion or (worse yet) a statute can seem to the uninitiated.
Hurt and Althouse both maintain that there's certainly a fact-checking process in blogs: comments. (This is a point I've made before, so I think it's a good one.) Further, both note in slightly different ways that blogs can be edited, but once trad media is on paper in ink (or on its way to mars as a transmission) the mistake becomes permanent. Blogs are fact checked by their readers.28 Law profs may also have an advantage, says Hurt, insofar as they are used to self-discipline in fact checking: no one is fact-checking the information they are giving to their students, so law profs are used to fact-checking before speaking, and the practise carries over into blogging. I think there's a nice crossover point here: blogs are fact-checked by their readers, but now with laptops and wifi, it becomes possible for students to be fact-checking professors in lectures (and judges to be fact-checking counsel at arguments) on the fly - at least, not particularly less so than it's possible for readers to fact-check bloggers. Czarnezki agrees with this, but notes that by far law blogs are not the only kind of blogs; it may be true that a law prof may fact-check before posting, but will, say, a Kos Diarist.29
Sykes asks about the impact of blogs on legal scholarship, in a way another form of trad media (albeit certainly not mainstream media). Althouse thinks that blogs can potentially improve law reviews,30 but her main point is to take a turn at challenging the premise of the question: is the assumption that people are reading law reviews flawed? Judges don't cite law review articles so often any more,31 but they read How Appealing! She's sure that if you totaled up all the people who've read her scholarly articles, it would be fewer than the total readers of her least-read blog post. (I dissent on this point; it might be factually accurate, I don't know, but my regard for Ann's scholarship is too high to admit it.) In the supplemental materials, Orin Kerr notes that "the circulation of the most popular law review, the Harvard Law Review, is about 8,000 per issue, [while] the most popular legal blog, the Volokh Conspiracy, presently receives about 25,000 visits every day."32 (Althouse's blog gets about 11,600 visits per day.)
This also goes to a point Garnett made to the previous question, viz. that blogging is a boon for younger professors because it's become easier to get into the coversation now - but that having been said, as Hurt and others have suggested, easier access doesn't deny lowered scrutiny. He returns to it now, noting that there are fewer barriers to entry, so ideas compete more equally. That is, there's more of a premium on the quality of an idea and how it's expressed in the blogosphere than the prestige of your position. In the supplemental materials, Orin Kerr notes that "[b]loggers have to prove their credibility day in and day out,"33 but the flipside of that is Garnett's point: bloggers may have to prove it, rather than relying on their credentials, but they have an opportunity to do so, with less emphasis on their credentials, in a way that wasn't so before. Nowadays, Larry Solum writes that "it is both wrong and silly to think that credentials matter more than content."34 This is a point that hits home very much for me, because I fall into the category of people whose ideas would likely not have been taken very seriously five years ago, but now those ideas have at least the chance to be considered on their merits rather than being summarily dismissed.35Garnett also notes that blogs can act to ferment ideas that may blossom later into scholarship36; I tend to agree with him on this (and thus fearfully disagree with Kate Litvak): blogging may not be itself legal scholarship, but contra Litvak, they do not (at least necessarily) "have nothing to do with scholarship."37 Or Volokh later chips in, blogs are much more lightweight, and don't encourage the length, depth and time investment that characterize scholarship,38 but on the other hand, there are synergies between blogging and scholarship.
Czarnezki puts a point Savage made earlier in the day into more concise form: the change in appearance and delivery medium doesn't inherently threaten the form.39 Bashman notes that many law review websites now have quasi-blog aspects (Northwestern Colloquy, for example), and then there's SSRN: So looking at the impact of blogs on scholarship may be ignoring the forest for the trees insofar as the internet as a medium is changing law reviews just as it's changing trad media. Putting law review articles online has increased readership. Volokh believes that the heart of the academy is discovering, disseminating and doing. These are related projects, but they are different.40 Scholarship enhances teaching, and blogs can't really displace scholarship because they are primarily means for dissemination.
Sykes steers the panel to another aspect of the impact of blogs: should judges read them? Should they cite them? Volokh chuckles that they should definitely cite them. As to reading them: he doesn't see how in this regard reading them is any different to reading a newspaper. He adds that blogs can almost serve as a quasi-Amicus brief, one that bypasses the cumbersome amicus process.41 And as a general rule, he adds, if you get an idea from a source, any source - be it an Amicus brief, the New York Times or Sentencing Law & Policy, you should cite it. The session's only question a little later picks up on this, wondering if it's appropriate for blogs to try and influence judges. Volokh observes that logs are public information no less so than a treatise or a newspaper, they are citable and should be cited, and while it might be inappropriate to try and influence a judge in a private email conversation with them, doing so by putting forward arguments in the public record seems appropriate enough. In some senses, he says, what is legal scholarship other than an attempt to influence judges?
Bashman notes that Judges clearly read blogs: aside from the Chief Justice, who we know reads How Appealing (see above), if he points out a typographical error in an opinion on his blog, the opinion is usually corrected or temporarily withdrawn until it can be corrected within a half-hour. He's learned from this to save a copy of any opinions before pointing out particularly humorous typos.
Althouse doesn't see any impropriety per se, but observes that there's a concern that certain kinds of reporting on blogs might influence Judges to play to the audience a little; if a certain kind of opinion seems likely to get them good reviews on the blogs, there's a concern that might distort judicial behavior. "AMK," I write in the margin and underline twice. Connecting this to the subject of cameras in the court Ann mentions David Lat's "judicial superhotties" contest, and wonders what pressures it would exert on Justices for blogs to be writing catty and critical comments about the Justices' appearence. "Perhaps not every blogger would do that... But I would," she concludes, with a chuckle. (This is the day's audience laughter runner-up to Turley's line about Roberts.)
A lot of things I post eventually wind up as parts of law review articles. ... Blogging serves as a scratch pad to test out new ideas that can be polished and later published as part of my 'official' scholarship.
Stating an idea in the blogosphere is a way of staking a claim to it, because once you’ve blogged it, you’ve published it, and you can prove when you did it. Not only that, but other people can cite to your argument. Law reviews increasingly cite to blog posts just as they cite to news articles or op-eds. Blogging lets you tell the world that you are working on something new and here is the initial formulation.