News & Events
Law-Related Blogging Starting to See a Coming of Age
Blogs by Professor Doug Berman and recent grad Ian Best featured
August 1, 2006
Chicago Lawyer Features Professor Berman's Blog
By: Maria Kantzavelos
Reprinted with permission from Law Bulletin Publishing Co.
Law professors are mindful of where their scholarship lands, particularly when it's in a court decision. Douglas A. Berman, who focuses on criminal sentencing law at Ohio State University's Moritz College of Law, is no exception. He considers citation counts the "currency of a law professor's work."
While Berman has penned more than 50 law review articles and commentaries, he estimates that only about a half-dozen of those traditional forms of published scholarship have been cited in judicial opinions.
His popular Sentencing Law & Policy Blog, on the other hand, has been cited in more than a dozen cases, including a dissenting opinion in a 2005 landmark decision by the U.S. Supreme Court (United States v. Booker).
"My blog is my most-cited work, by far. Certainly, it is more widely read than any of my scholarship," said Berman, who has been blogging about advancements in federal sentencing since 2004. "It's all part of the power of the blog."
Berman is among a growing number of law professors, law students, lawyers, and even judges who have gravitated to the world of blogs, the interactive online medium that allows people worldwide to publish their ideas, and others to comment on them -- all with an ease and immediacy that many legal professionals have come to embrace.
"Blogs help make the legal world move a lot faster. Within a matter of minutes, I can take a new legal development, make it available to the world, and comment on it quickly," Berman said. "It's kind of a self-controlled punditry." Blogging in droves Law-related blogs, also known as "blawgs," made their debut around 2000.
Denise Howell, a Southern California appellate and intellectual property lawyer who is credited with having coined the phrase "blawg," said she has seen first-hand how the phenomenon has taken off since she started her Bag and Baggage blog in 2001.
"It was so fun to watch the exponential growth. I started to stay on top of every new legal blog I could possibly find and I would mention it on my site," Howell said. "The weekly posts would've had to turn into daily posts, and several-times daily posts. Lawyers started blogging in droves."
While estimates vary, Howell speculates that there are now several thousand blogs maintained by legal professionals and law students worldwide.
Technorati, a search engine that tracks blogging activity in general, in July estimated the number of blogs of all kinds at 47.1 million.
The Web site Blawg.org, which categorizes and announces new law-related blogs, in July listed 1,304 blog links in its database.
The content and personalities of law-related blogs run the gamut, from serious analysis of Supreme Court opinions by renowned legal scholars, to the musings of law students preparing for the bar exam.
Ian Best, a recent graduate of Moritz School of Law, is touted as being the first law student in the country to receive academic credit for maintaining his own blog, 3L Epiphany, an ongoing project that has culminated with a taxonomy of hundreds of American and Canadian legal blogs.
Best said he set out to study the growing phenomenon of legal blogs by blogging on the topic after working as a research assistant for Berman.
"I observed that his blog had a readership of judges and lawyers, and the non-lawyer public," Best said. "Blogs are a way where professors can reach beyond their academic enclave."
Soon, Best said, he began to notice a growing popularity in his own blog. "Once people started learning about it, many lawyers started e-mailing me. It became a very interactive exercise. You have a lot of potential for interaction, so people can help you with your research," Best said. "I became pretty well-known on the blogosphere. When you do this kind of work on a blog, you meet people you never would've met otherwise."
Although the interest is growing, most lawyers have not jumped on the blogging bandwagon.
"As far along as we've come with blogs, we're really not there yet. There's still a lot of people who think the name is goofy and have a misconception of what it is," said Ernest Svenson, a New Orleans lawyer who is known in the blogosphere as Ernie the Attorney, the name of his popular blog.
A natural fit Lawyers who blog say the medium can offer several benefits in the practice and business of law. Many of them describe blogging as a mode of communication unlike any other, a 21st century style of networking. Blogging, they say, gives them a platform to showcase their knowledge and expertise to the world, including prospective clients. The exercise also helps them stay current in their specialties.
Evan D. Brown, an attorney who practices commercial litigation and intellectual property law in the Chicago office of Hinshaw & Culbertson, said he combined two interests -- developing Web sites as a hobby and keeping track of legal developments that relate to technology -- when he launched his InternetCases.com blog last year.
"There's just more of a collaborative effort now among people using the Internet," Brown pointed out. "This whole notion of being able to expand my network is a real sign of what it's like to be publicly connected on the Internet in 2006, and it's a lot of fun."
Since lawyers read, write, analyze, and argue for a living, their leap into the blogosphere seems only natural.
"A lot of them love writing and have a personality where they love to be heard. Lawyers are naturally going to be prolific in this area," said Dennis Crouch, of counsel at McDonnell Boehnen Hulbert & Berghoff.
Crouch has reaped tangible benefits from his place in the blogosphere, which has helped jump-start his career. He attributes his newly acquired position at Boston University School of Law -- where he will teach patent law and computer law -- largely to the popularity of his own patent law blog, Patently-O.
"It turned out that several professors at Boston University read this on a regular basis. They were very excited about having me come and be a part of the faculty. It was very magical," Crouch said.
The blog, which Crouch started as a first-year associate at the firm, gets about 50,000 visitors per week, he said. "There's only 30,000 to 40,000 lawyers practicing in the area of patent law in the U.S. I would estimate that most patent attorneys have seen my blog on a number of occasions," Crouch said.
Since he launched the blog in April 2004, Crouch said he has interacted via e-mail with about 10,000 patent attorneys. As a result of his fame among patent lawyers who read his blog, he has been invited to speak at a number of legal conferences and has even signed a book deal.
The marketing effect As a new associate blogging about developments in a niche area of law, Crouch soon began to develop a book of clients.
"I knew it would have some marketing effect, but I certainly was not expecting that just by writing this blog I would generate clients," said Crouch, who estimates that his blog has yielded a couple of dozen clients. "It was about three months into it when the first client came in through the door who had purely found me and our firm through this Web site."
For Crouch, the practice of blogging helped to break down barriers.
"A lot of times in law firms, it's very difficult for associates to build those kind of relationships with clients," he said. "The blogosphere kind of levels the playing field, in that someone who's not well-known and maybe doesn't have his own network of potential clients can show the world that they are somewhat of an expert in an area. If people read what you're writing on a daily basis, and you're writing interesting things that are helping them understand how their business works, it's natural that they'll want to get in touch with you and harness more of your expertise."
Joel A. Schoenmeyer, an Oak Park attorney whose solo practice focuses on estate planning, probate administration, and residential real estate, said he turned to blogging as a marketing tool last year, when he launched Death and Taxes -- The Blog. He said his blog yields about one potential client per week.
"A Yellow Pages ad is a picture of you, or a saying. That doesn't tell anybody about what kind of attorney you are," said Schoenmeyer, who tried that route. "With blogs, I can give people a sense of who I am and what I know."
Building credibility online can be a challenge for bloggers, who serve as their own writer, editor and publisher.
"At first blush, I don't believe anything I see online, and especially a blog. There needs to be some way to build credibility," Crouch said. "For me, I had instant credibility because I'm with this law firm that has its own credibility. That helped me get started. You also have to be correct in what you're writing, and be a good blogger."
Lawyers who blog say it's the way they "carry" their blogs that makes a difference when it comes to credibility and popularity in the legal blogosphere.
"Most blogs are interesting because they have some sort of personality," Crouch said. "What has worked for mine is, I do things very concisely and I report on new events very quickly. I try not to put too much spin on what's going on. I try to lay out the facts, but I do think people appreciate that it's a patent attorney who's writing this."
Hinshaw's Brown takes a similar approach to blogging. He said he is ever-mindful of his potential readership, such as opposing counsel or a judge he might appear before in court.
"A general rule I keep for myself is to remain as objective as possible," Brown said. "All I do, essentially, is talk about recent decisions that involve the Internet or new technology. I don't want to talk too much about what I think the law should be, because as a litigator I might be in a position where I'd take a contrary position. Also, I don't want to prejudice myself. There are some pretty astute judges [in the blogosphere]."
While many blogs are maintained by anonymous figures, lawyers who attach their names to their blogs say such a move can be one way to help build credibility.
"Lawyers who attach their own name to a weblog have their credibility on the line, and they don't want to mess that up by posting information that's not correct," said Evan Schaeffer, a Madison County trial lawyer who publishes Evan Schaeffer's Legal Underground, "where most of the fun is in the comments," as well as The Illinois Trial Practice Weblog.
Brown acknowledged that not all blogs are reliable. However, because of the nature of the medium, which allows for feedback and dialogue between publisher and reader, errors and questionable material can quickly damage one's reputation in the blogosphere.
"It doesn't take long for information put up that may be lacking in integrity to be called out," Brown said.
Howell said that's one of the things the blogosphere is famous for.
"In the online world, your reputation and credibility are everything. If you are dishonest or inaccurate, that's going to be found out and fleshed out," she said. "You do have to be careful. If you make a mistake, you have to own up to it. There's no opportunity to be a weasel and get away with it."
Professors, judges join in
Many law professors who blog see the medium as an easy way to reach a much broader audience to give and get ideas.
Larry E. Ribstein, a professor at University of Illinois College of Law, often uses his business law blog, Ideoblog, as a platform for working out issues.
"A lot of the ideas that start on my blog appear in my more formal scholarship, eventually," Ribstein said. "It's not so much that the blog posts themselves are scholarship, but I see them as part of the scholarly process."
Ribstein and others said they like the medium's transparent nature.
"It's the ability to reach the audience directly," said Douglas Gary Lichtman, the faculty member in charge of The Faculty Blog at University of Chicago Law School. "Whatever I write is actually what they see. There's no editor, no reporter, no one touching it. And I get to see exactly what the readers want to say back."
Blogging also gives professors an opportunity for dialogue with practicing attorneys, and to "get the straight scoop in a very quick way," said Lawrence B. Solum, a professor at University of Illinois College of Law who authors The Legal Theory Blog.
He and other professors also point out that their blogs have become a source of information for journalists in mainstream media outlets, particularly when a law-related dispute surfaces.
James Lindgren, a professor at Northwestern University School of Law who contributes to the popular Volokh Conspiracy blog, recalled the discussions on the blog when Harriet Miers was nominated to replace Sandra Day O'Connor on the Supreme Court.
"Some of our criticism got picked up by the mainstream press and filtered into the analysis fairly quickly," Lindgren said. "We had some of the first criticism of the problems with her writing, which became a theme The New York Times picked up."
Debates have ensued within the academic and legal blogging arena over whether blogging constitutes actual scholarship, and whether the practice fits in with the role of a law professor.
"I'm sure there are still a lot of people who roll their eyes at the concept of a blog," the University of Chicago Law School's Lichtman said. "But it's kind of hard for people to roll their eyes and say that's not what academics do when really good academics are doing it."
Along with academics, a handful of judges are getting in on the action. Richard A. Posner, judge of the 7th U.S. Circuit Court of Appeals, maintains a blog with Nobel Prize-winning economist and University of Chicago Professor Gary S. Becker. The site is appropriately called The Becker-Posner Blog.
"It's not academic; it's not scholarly. But you can get some ideas and it's intellectually stimulating for the blogger," Posner said. "We're both very busy. We only have a few hours a week to spend on this. Some of it is conclusions that we have worked out in real scholarship, and much of it is dealing with issues new to us."
As for judicial opinions citing blogs or their posts, Best, the recent law school graduate who has been blogging about legal blogging, has tracked more than 20 examples. In some of those examples -- like the U.S. Supreme Court opinion citing Berman's blog -- the citation is merely to a document available on the blog. Others simply make reference to a specific blog as a place to go for more information on a particular point. But some of Berman's own analysis in blog posts has also been cited in court opinions, Best pointed out.
The citations may seem minor, but several legal bloggers say the mentions are telling.
"When courts cite it, they're recognizing the quality of the blog," Ribstein said. "It shows the court's paying attention."
Howell, the Southern California lawyer, said it was validating to find out that blogs were making their way into judicial opinions.
"In the beginning, nobody knew what a blog was. Then they thought it was their teenage son or daughter on LiveJournal telling their friends about last Friday night," Howell said. "To see that people were out there putting real information into the world in an effective and useful way, and seeing the courts agreeing with that, was a great thing."
Making an impact
Political blogs have received considerable attention for their impact in policy-making circles. For the younger and smaller niche of law-related blogging, many legal professionals are looking forward to seeing how it matures.
Meantime, the blogs of legal professionals are contributing to the way in which the blogging world has developed. "You find a caliber of writing, scholarship, and analysis that is pretty darn impressive and not something the casual observer might associate with the word `blog,"' Howell said.
Hinshaw's Brown said one of the biggest influences that law-related blogs can have is in the distribution of information.
"Just a few years ago, when an important decision would come down, it could take several months to a year for a law review article to be written about it. Now, with more people writing blogs that relate to the law, you have more thoughtful conversation and analysis within hours after the decision comes down."
The immediacy of the medium has its advantages, Brown said, when it comes to the practice of law.
"It's good for the legal community to have information out there faster, and to have more people think about it and comment on it," Brown said. "The more that happens, the greater understanding we have and the more effectively we can represent our clients."
"Ernie the Attorney" Svenson -- who views his style of blogging as more of a "coffee table discussion" on a range of legal topics -- is optimistic about the potential impact of legal blogs on the profession.
"I think it's going to enhance the legal profession. The big word here is transparency. It's better to let people see how the sausages are made, what's going on," Svenson said. "Are there idiots out there? Yes. But at the same time there are going to be all these thoughtful people trying to figure it out. If they can try in public, good things are going to happen."