Historical reflections on the law blogging conference

Unsurprisingly, law bloggers are providing diverse assessments of the law blogger conference at Harvard Law School.  You can check out distinctive accounts from Althouse, Concurring Opinions, Legal Theory Blog and Timothy Armstrong, and decide for yourself who has produced the King James version of the law professor blogging bible.  (The conference papers can still be accessed at this special SSRN page.)

Reflecting on all the blog talk, a (slightly artificial but useful) dichotomy about history captures my sense of the current divide between traditional legal scholarship and blogging.  Orin Kerr in his paper says serious legal scholarship is supposed to be “lasting,” but that seems a more fitting account of historical scholarship.  And that leads me to realize the forms and norms of traditional legal scholarship have evolved to a point where law review articles are now much better suited to reflecting on legal history, rather than being suited to helping shape legal history.

This simply dichotomy — between writing that reflects on legal history and writing that seeks to shape legal history — gives me an interesting frame for examining other conference contributions.  Gail Heriot suggests in her paper that bloggers are following in the footsteps of Plubius; obviously, the Federalist Papers were written to shape history, not to simply reflect on it.  Similarly, points made by Randy Barnett, Michael Froomkin, Larry Ribstein, Eugene Volokh, Orin and others about law professors as public intellectuals highlight that most law professors are interested in shaping current legal debates; we generally are not — and should not — be content to just sit on the sidelines writing “serious legal scholarship” that merely records and reflects on legal debates for the ages.

This historical frame on the blog-as-scholarship debate also informs many others’ comments, given that, as Winston Churchill famously said, “history is written by the victors.”  Tellingly, Paul Butler — the only person of color speaking at the conference — started by saying that blogs “walk up to legal scholarship and slap it in the face.”  Traditional legal scholarship has rarely focused on issues of the greatest importance to minorities and the disenfranchised, whose issues are hard to see clearly from the heights of the ivory tower.  Ann Althouse’s entire approach to blogging highlights the import and value of shaking up traditional norms of both legal scholarship and the public engagement of law professors.

Stated in extreme terms, traditional legal scholarship is now best suited to reflecting a top-down view of legal history, while law blogs present the possibility of helping to shape legal history from the bottom-up.  (Law professor boggers are, after all, one unit in an Army of Davids.)  Indeed, perhaps this explains Brian Leiter’s debatable observation that “that only a miniscule number of first-rate legal scholars in any field actually blog on scholarly topics.”  Folks who achieve the most success articulating their own top-down views of legal history may be less inclined to spend time trying to help shape legal history from the bottom-up.  In my view of a perfect scholarly world, law professors should aspire to do both.