It is a virtual commonplace of legal theory and the history of legal and political thought today that Jefferson is not to be counted among its great subjects. With the notable exception of Sanford Levinson, constitutional theorists and historians of legal thought today generally pass by Jefferson’s comment to Madison that “the earth belongs in usufruct to the living” as at best an overly idealistic road wisely not taken. David Strauss and Jed Rubenfeld treat Jefferson as a fundamentally unrealistic and anti-historical thinker (by Rubenfeld’s lights, akin to Nietzsche, which is telling), while Stephen Holmes dismisses Jefferson as simply an “anti-constitutionalist.” David Konig, the leading historian of Jefferson’s legal career and the editor (along with Michael Zuckert) of his legal commonplace book, argues that Jefferson’s stance is that of a speculative philosopher which had to be subsequently reigned in by his more judicious friend and collaborator. Hannah Arendt noted Jefferson’s ward republic idea as a precious gem forgotten by both American politics and the revolutionary tradition, and Jennifer Nedelsky and Richard Matthews (among others) have noted Jefferson’s radical theory of property rights in his extended dialogue with Madison, but those are the apparent limits of Jefferson’s identity as a legal thinker. Paul Finkelman writes about he impact of Jefferson on American constitutional law, but that impact is felt through his subsequent political career.
What many of Jefferson’s critics on this front have in common is a feeling that Jefferson’s idea was simply ahistorical- an example of what Michael Oakeshott calls political rationalism at its worst. Robert Tsai has an appraisal of Jefferson’s idea and the project of legal revolution, but he suggests Jefferson is ultimately inadequate here because it requires us to imagine ourselves stepping out of our context and the assemblage of law and history that brought us to it. Similarly, Kunal Parker views Jefferson and Paine as exhibiting a revolutionary theory of the timelessness of consent. I just don’t see it that way at all. What is Jefferson doing hunting down manuscript copies of the colonial laws of Virginia and the records of the Virginia Company if he thinks he is conveniently stepping out of the thickness (or the need for) historical representation? What about his concern for the writing and rewriting of legal text so apparent in his plans for councils to go over proposed amendments to the state constitution, or his wish, again, expressed to Madison, for a plebiscite to make suggestions before approving the US Constitution? And what flippant anti-historical idealist composes the Manual for Parliamentary Practice?
I see Jefferson as first and foremost a practically engaged theorist of the politics of historical representation, and he distilled that theorizing into an understanding of the ideal citizen as essentially a user of inherited materials- land, yes, property, yes, but also of law and of language. In that sense, Jeb Rubenfeld’s linking of Jefferson and Nietzsche is apt, but precisely because Jefferson, at his best, thought basically historically, or genealogically and counter-genealogically, or even archaeologically, about law and politics.
Somewhat (and I emphasize the somewhat) in the spirit of Corey Robin’s recent separate posts on Jefferson as a racial thinker and Nietzsche as the closeted inspiration for neoliberal economic theory, we could, anachronistically, say that Jefferson’s thinking about the use and disadvantages of history for life and his vision of a transformative human subject was capable of both radically democratic and reactionary, violent implications. Unlike Nietzsche the philologist and philosopher, Jefferson the man of action, slaveowner, and proponent of continental empire had a direct hand in realizing some of those implications himself. In the final analysis (if there is such a thing), Jefferson’s career is incomprehensible without understanding it as a project of constituting and protecting the racial, gendered, and geographic boundaries of a potent ideological vision of the true and ideal citizen.
But problematizing and forgetting are two very different things. In our current moment, it might just be that the memory of Jefferson’s conjoined concepts of law as use and of the citizen as a particular kind of reader can appear in a new light. The historical practice appropriate here is one not just of recovery but of active recollection. If Jefferson if of any use, it is to teach us that that is where our political thinking can begin again.
I want to thank Al Brophy and Dan Filler for letting me chime in here at the Lounge for the past month or so- I have been and always shall be a regular reader of this great blog.
If you have an interest in issues and events related to social entrepreneurship and social enterprise law, you may wish to bookmark the SocEntLaw blog. Its contributors include several law professors / lecturers, including Cass Brewer (Georgia State), Deborah Burand (Michigan), Suzanne McKechnie Klahr (Harvard / Stanford), Haskell Murray (Regent), Alicia Plerhoples (Georgetown), Dana Brakman Reiser (Brooklyn), and Kyle Westaway (Harvard).
Thank you, Al, for inviting and introducing me. I've been reading The Faculty Lounge since you all started it. We started our blog, Turtle Talk in 2007, just before The Faculty Lounge. Though I don't post nearly as much as my colleague, Matthew Fletcher, it's taken some time to be able to tear myself away and write over here. Turtle Talk is comprised mostly of primary source material surrounding cases in federal Indian law (briefs, decisions, news articles, law review articles), though we periodically post commentary. This has the added benefit of keeping us fully engaged in developments in our field, which can at times feel overwhelming.
Al said he wanted to hear a bit about history in federal Indian law, but as a non-Ph.D holding person, this always makes me nervous! I majored in history in undergrad, but did not complete (nor attempt) any graduate work in the field. However, in law school I wrote a small history paper on the Cherokee Freedmen and treaty concerns, and then found myself digging into the issue of laches and Haudenosaunee land claims once I was employed by Michigan State. Tracing the dramatic shift in the equitable defense of laches from its development in England to a series of cases in the Second Circuit, starting with Cayuga Indian Nation v. Pataki, made me antsy to write about legal history and the Supreme Court, at least as it affected American Indian tribes.
My most recent article identifies fundamental problems with originalism interpretation and how the assumptions underlying that interpretation harm tribal interests today. I've had a mixed response, including the argument that the Constitution provides strong language for tribes under an originalist interpretation. I'm not sure that's entirely true, regardless, given the dismal results for tribal interests at the Supreme Court, the argument certainly isn't working, which is what I was (and am) interested in.
To begin my time here, however, I think I'll start with the other area of my focus, the Indian Child Welfare Act (ICWA). The Act, passed by Congress in 1978 and interpreted by the Supreme Court once in Mississippi Band of Choctaw Indians v. Holyfield, is in front of the Supreme Court again this term. This semester I'm also teaching a class on ICWA. I hope to write here about ICWA, how I changed my ICWA class at the last minute to incorporate the case (and what I'd change in the future), how amicus briefs inform my writing and teaching, how my service on the Court Improvement Program in my state provides me with ideas for teaching, and back to how my role at the law school often leads me to base my writing projects on external needs or requests for our Center. I still have writing projects in mind surrounding equity and tribes, the public interest doctrine and tribes, and one with a friend tracing the history of the modern Haudenosaunee land claims cases, which I hope to get back to as our semester winds up.
Till then, thank you again for having me.
Professor Maya Steinitz, at the University of Iowa College of Law, has an interesting research/crowdsourcing/transparency project going on at her new site, A Model Litigation Financing Contract: Litigation Funding in Theory and Practice. For those interested in this practice, it's worth a look.
Litigation finance is third-party funding of litigation for a profit -- a booming and controversial new industry. In this project, I am suggesting draft model provisions, and ultimately a full contract, and inviting the public - academics and practitioners - to opine. Currently, all such contracts contain confidentiality provisions and international arbitration clauses which means the practice is completely secretive. Provisions and contracts that have become publically available -- usually when claimants sue funders -- have revealed less than optimal arrangements (putting it mildly). The success of the project will revolve on participation by readers. I believe this is a novel way of doing academic work: posting draft model legal instruments and inviting and moderating a public debate on them.
Earlier today, sports blog Deadspin posted a list ranking the amendments to the Constitution. According to editor-in-chief Tommy Craggs’ algorithm – which is not explained in the blog post – the Fourteenth ranks first, followed by the Fifth and Fourth, respectively. The Second ranked dead last.
I’m sure we all have our favorite amendments (“favorite,” in terms of our scholarship and “favorite,” in terms of our personal constitutional politics); where would you rank the Second? Or any of the others? Given the choice, I’d probably rank the Fourteenth and the Second close together; both are ambiguous enough to remain subject to highly-contentious judicial construction. I’d probably rank the Third somewhere near the top, since the prospect of quartering a slew of soldiers in our NYC apartment seems particularly unsavory to me.
Are there others?
Change is hard. Big changes are underway in the economics of the legal profession, and they are driving equally big changes in legal education. These changes have imposed genuinely tragic hardships, most immediately and directly on the aspiring lawyers trapped in their cross-currents. Those who entered law school in 2005 and later implicitly or explicitly made rational (or as time went on, at least not entirely irrational) assumptions that the legal economy would continue, mutatis mutandis, as it had for the last forty years or more, an endlessly rising tide lifting even the leakier and more crudely-finished boats. Sadly, and through little fault of their own, they were wrong, and at great personal cost—in time, in money and in life plans gone awry.
Change is scary. The fear is palpable among those speaking to current circumstances out of the academy, and has produced the two results that such fear predictably spawns: Rank denial and frank hysteria. Neither is merited. Today, prompted by yesterday’s much-downloaded op-ed in the New York Times, I speak to the Panglossians; my next post in this space will address the Pandemoniasts.
My message to Dr. Pangloss is simple: Stop and think. Please. You can’t whistle “Don’t Worry, Be Happy” loud enough to drown out the anxiety that is prompting this forced insouciance. And you are wasting valuable time and energy not only denying the existence of important questions you ought to be addressing, but potentially confusing others who will make errors they could have avoided and lose opportunities they could have claimed.
Those of you who remember my post on “What Matters Most (in legal ed these days)” (and blessings be upon you if you do) will recall that I suggested that by far the most salient feature of the legal education landscape today is that there are too many law graduates and too few law jobs. The Panglossians deny that this is true, or argue that it doesn’t matter if it is. In doing so, they depend almost entirely on wishful thinking masquerading as empirical assertion. While we would all be very interested in any meaningful empirical evidence supporting the Panglossian view, I haven’t seen any to date. And I have seen lots to the contrary.
Some of the Panglossian commentary is downright meanspirited, and takes the basic form that there are in fact lots of law jobs out there, but recent graduates are too lazy, too stupid, too greedy, or too ill-prepared by their law schools to claim them. When any evidence of the existence of this sea of unclaimed jobs is offered, it is generally either the fact that there is substantial unmet need for legal services among the poor and middle class; or that Nolo Press and Legal Zoom are still in business. Let’s be clear: There are now tens of thousands of unemployed or underemployed recent law graduates out there dying to make some use of their legal education. If they could make a living starting a practice at very low rates, they would do so. That’s how labor markets work. But as I have commented in this space previously, the poor are poor because they have no money; and the middle class have very little disposable income to devote to legal services not covered by insurance or contingent fees. As for Nolo Press and Legal Zoom, they are successful in the marketplace precisely because they offer very basic legal services at prices that are cheaper than virtually any practitioner can manage to charge and continue to eat regularly. Even still, there are plenty of ads for dirt-cheap flat-fee incorporations and uncontested divorces in your local yellow pages. The low-price market is saturated. Stop blaming the victims of a rapid and significant contraction in the entry-level legal job market for something they didn’t create and can’t overcome—which is what you're doing if you deny there are significantly too few law jobs, whether you do it by attacking recent law grads directly or by the tactics I turn to now.
Many Panglossian apologists suggest that everything is still just fine because a law degree has innumerable profitable uses beyond qualifying its recipient to get a license to practice. An example can be found in a well-respected law professor’s comment on Dan Filler’s recent post on the plummeting numbers of LSAT takers. This argument takes a range of forms that range from the (always unsupported) assertion that “lots” of the speaker’s graduates get “wonderful” jobs that make great use of a law degree but don’t require a law license, to the (equally unsupported) assertions that a law degree is ideal preparation for any line of work, a thoughtful life, the vicissitudes of holy matrimony, Monty Python’s Argument Clinic, or the searching examination that can be expected from St. Peter when the matriculant finally reaches the pearly gates.
I would be delighted to see any empirical evidence supporting these assertions, but unfortunately there isn’t any of which I’m aware. Recent ABA employment outcome statistics devote a segregated category, called “JD Advantaged,” to jobs that do not require a law degree but for which the degree “provides a demonstrable advantage in obtaining or performing the job.” This is an overinclusive definition, because what we really ought to be looking for are the jobs for which a JD provides a sufficiently substantial advantage in hiring, retention or advancement that the holder’s investment in the degree is justified. After all, the fact that you get a job after graduating from law school, even one to which your legal knowledge is somehow relevant, does not necessarily mean that the job made the time and tuition worth it—especially if that job does not require a law license or even a law degree. But in all events, what the ABA employment statistics show is that this “JD Advantaged” category of jobs is, for most schools, a small proportion of what anyone might call placement success. Moreover, the number of such jobs for a law school’s graduates is significantly negatively correlated with that school’s prestige as measured by its US News ranking. In other words, at the schools where graduates have the most employment options, they choose significantly fewer of these “wonderful” jobs, further suggesting that they are second-best (or considerably worse) outcomes. As for the argument that law school somehow makes you so much better at everything that it’s worth whatever someone wants to charge you for it, I assume that requires no further discussion.
Finally, a few words about yesterday’s New York Times op-ed from the new dean at Case Western, unapologetically entitled “Law School Is Worth the Money.” There are several postings already online pointing out astonishing deficiencies in this Panglossian effort’s coherence and empirical support (which I borrow from as well as add to below; three pretty devastating ones are here, here and here), but I want to dwell briefly on two particularly egregious examples.
The op-ed argues that things are actually good for law grads today because the median law-job salary figure for 2011 graduates is $61,500. But unless you look closely, you won’t see that this is the median salary only among those who actually have law jobs in the first place. (The op-ed, and I, rely on statistics from NALP.) In other words, the op-ed’s median salary number doesn’t appear to take into account the pay (if any) of those graduates who have no law job, or no job at all. All told, that median is based on only the 36% of 2011 graduates who both had law jobs and reported their salaries. And what that means is that only 18% of the class of 2011 (half of the 36% on which the median is based) were confirmed to have had JD-required jobs that paid more than $61,500. In other words, the data on which the op-ed relies show that a randomly selected 2011 law grad had less than a one-in-five chance of getting a job as a lawyer that paid more than the $61,500 "median" salary that the op-ed offers as proof of a prospective law grad’s excellent prospects.
Similarly, the op-ed makes a great deal out of a comparison between a percentage of graduates who took jobs in private firms in 1998 (55%) vs. 2011 (50%), arguing that this shows that things are only a little worse now than they were at another time law-firm hiring was a relatively low portion of all law hiring. It fails to mention that the cited fraction is not the portion of all graduates who got private firm jobs, but rather only the percentage of students who got law jobs in the first place and whose jobs were at private firms. And according to NALP, a much greater percentage of law graduates in 1998 got full-time law jobs in the first place (something like 80% of all graduates, or perhaps more depending on how you count), while approximately 55% of all 2011 graduates got jobs requiring a law degree. In fact only 41% of law grads whose employment outcomes were reported to NALP got jobs at law firms. And some of those jobs—after three years and $200,000 worth of law school!—apparently were as secretaries, paralegals or clerks, or were only part-time. Take those out along with cases where a new grad is practicing as a solo (which is “getting a job” in name only), and less than 30% of the class of 2011 whose employment outcomes are known were employed at private law firms nine months after graduation. So this statistic compares most of an apple with a very thin slice of orange. (Not to mention that it is a meaningless thing to worry about in the first place, as there are many excellent law jobs in government and nonprofits, and many low-salary and low-satisfaction jobs in private law firms.)
One other frankly bizarre assertion in the Times needs brief mention. The op-ed argues that, even if entry-level hiring is at historic lows relative to number of graduates (which is likely the case even though the rest of the piece apparently tries to suggest otherwise), that doesn’t matter because first jobs don’t matter; it’s the subsequent positions that the law degree assertedly allows you to obtain later in life that really matter. Of course, we have no longitudinal data on the future job prospects of initially unemployed or underemployed law graduates because there has never been anything close to so many at once before. But does anyone seriously believe these folks are going to get a great second or third legal job without ever having had a first one? Or that any discriminating legal employer is going to see two years of flipping burgers, stocking store shelves or selling jeans as good preparation for law practice?
I could go on, but others already have. If a student turned in a paper with arguments like these in a class I was teaching on the legal profession, I know what grade I would give it. I encourage you to draw your own conclusions.
I close this post by reiterating my initial point: While none of this proves that the sky is as clear and cloudless as the Panglossian deniers would have you believe, none of it proves the sky is falling either. The Pandemoniast view I will discuss next time is, in my view, just as overwrought and undersupported as the Panglossian one. In the meantime, it’s time for the “Don’t Worry, Be Happy” crowd to impose on themselves the commitment to thoughtful and honest data-driven argument that I hope and assume they regularly urge on their students. Dr. Pangloss, heed thyself.
For the next couple of weeks, the folks over at the Loyola LA Law Faculty Blog - Summary Judgments - are focusing on issues important to the upcoming election. They're calling the series Blogging the Ballot - thus the title of this post. Michael Waterstone writes:
Through this series, "Blogging the Ballot," we will provide legal commentary that tracks the political issues. We will be posting every few days until the election on a broad range of issues, including election administration, human trafficking, foreign policy and free speech.
What a smart blogging idea!
Well, this weekend I've been reading scholarship in preparation for the hiring conference at the end of the week. I'm always astonished at how thoughtful emerging scholars are. And I'm inspired to attempt to write deeper work after reading their terrific scholarship.
It's been a while since we had an open thread here -- I think the last one was back in July. So perhaps it's past time that we ask you to tell us what's on your mind.
Thanks, Dan, for that very generous introduction, and thanks to the permanent denizens of the Lounge, and to its regular readers, for allowing me to hang out here for a little while.
Harvard Law School's Petrie-Flom Center announces its latest venture: a new blog, Bill of Health. I'm happy to say that I am among Bill of Health's large and diverse roster of bloggers, and will be cross-posting relevant content both here and there.
From the press release:
Our goal is to provide a one-stop shop for readers interested in news, commentary, and scholarship in the fields of health law policy, biotechnology, and bioethics. You can expect to find regularly updated posts reacting to current events, testing out new scholarly ideas, reviewing the latest books, and announcing conferences, events, and job openings. We also hope to cultivate a strong community of commenters, so that the blog becomes an interactive discussion forum.
A widely collaborative effort, Bill of Health features content from Petrie-Flom affiliates, as well as leading experts from Harvard and beyond. Institutional collaborators include HealthLawProfs Blog, the Yale Interdisciplinary Center for Bioethics, and the Robert Wood Johnson Foundation's Public Health Law Research program at Temple. We've also lined up a stellar cast of bloggers so far, including: Tom Baker, Cansu Canca, Arthur Caplan, Daniel Carpenter, Amitabh Chandra, Greg Curfman, Einer Elhauge, Richard Epstein, Nir Eyal, Michele Goodwin, Rebecca Haffajee, Russell Korobkin, Greg Koski, Katie Kraschel, Stephen Latham, Ted Marmor, Max Mehlman, Michelle Meyer, Abby Moncrieff, Efthimios Parasidis, Wendy Parmet, Frank Pasquale, Suzanne Rivera, Al Roth, Ted Ruger, Bill Sage, Laura Stark, Erin Talati, Nicolas Terry, Katharine Van Tassel, and Daniel Vorhaus. In addition, we'll be joined by some great guest bloggers in the coming months, including Mark Hall, Allison Hoffman, Adam Kolber, Jon Kolstad, Kristin Madison, Anup Malani, Arti Rai, Annette Rid, Chris Robertson, Nadia Sawicki, Seema Shah, Talha Syed, Dan Wikler, and Susan Wolf, as well as a several Petrie-Flom graduate student affiliates. Read more about our team here.
The Bill of Health bloggers will be introduced in batches in the coming days. We hope you'll visit and comment often.
A few weeks back I talked about University of Denver Professor Jay Brown's census of law bloggers. Now Jay's paper that uses his census data, "Law Facutly Blogs and Disruptive Innovation," is up on ssrn as well. Cribbing now from the abstract:
The role of blogging in legal academia has been much debated. Some view the discipline as the antithesis of scholarship, a medium that allows faculty to broadcast ignorant or confused opinions. Others have viewed blogging by law faculty more favorably, focusing on the approach as a means of promoting traditional scholarship.
While the debate has been ongoing, the matter has largely been resolved by actual practice. In the realm of legal scholarship, faculty law blogs are a disruptive innovation. Disruptive innovation usually connotes the introduction of a new technology that eventually destabilizes an existing market. Often, the technology, when introduced, is inferior and not perceived as a threat. Over time, however, the technology improves and migrates from a market niche and becomes the reigning standard.
Law faculty blogs arose in a state of nature and were often perceived as inferior technology used by faculty to convey random, often personal, views. Over time, however, a recognized class of law faculty blogs emerged, with at least one having been cited 45 times in court opinions and another having been cited by over 700 times in assorted legal publications. Widely read and regularly cited, they offered a superior method for the rapid dissemination of some types of legal analysis and facilitate the introduction of ideas into an ongoing debate. They also provide a form of intermediation that discourages low quality posts.
Law faculty blogs provide a form of scholarship that fills a gap left by traditional law reviews. Law faculty blogs overcome the slow publication process and dense analysis that often prevents traditional law review articles from playing a role in an ongoing debate. Said another way, law faculty blogs have altered the continuum of legal scholarship and reduced the role of traditional law reviews. Efforts by law reviews to fight back through the implementation of online supplements has so far failed.
Law faculty blogs have also had a disruptive impact on the determination of faculty reputation. Blogging allows law professors to route around the traditional indicia of reputation such as the frequency of publication in elite law journals. Providing a “prominence” dividend, faculty who blog are able to advertise their expertise through substantive posts and become better known to practitioners, academics and decision makers. This type of reputational benefit can be seen from the correlation between sustained blogging and SSRN downloads.
Blogging can also disrupt law school rankings. With reputation the single largest component in the rankings, law blogging can be used by some law schools to increase name recognition in a cost effective manner. In other cases, blogging can increase awareness of a law school’s faculty, elevating the overall reputation of the institution. Both can improve a law school’s relative rank.
I think you'll enjoy the paper. The data that Jay uses in this paper are available here.
Last month my colleague at the University of Alabama Dan Joyner started the Arms Control Blog. The blogging team in addition to Dan is: Marco Roscini, University of Westminster Faculty of Law; Pierre-Emmanuel Dupont, Rochelois, Besins & Associe; Zeray Yihdego, Oxford Brookes University Faculty of Law; Eric Myjer, University of Utrecht Faculty of Law; David Fidler, University of Indiana School of Law; Barry Kellman, Depaul University College of Law; Dieter Fleck, Formerly of the German Ministry of Defense; and James Fry, University of Hong Kong Faculty of Law.
The illustration is from Amnesty International.
It's my pleasure to announce that Peter Conti-Brown, who is an Academic Fellow, Rock Center for Corporate Governance at Stanford, is stepping into the lounge to sit with us for a spell. Close readers of the faculty lounge may recall that I blogged about Peter's "Scarcity Amidst Wealth: The Law, Finance, and Culture of Elite University Endowments in Financial Crisis," which appeared in the March 2011 issue of the Stanford Law Review a while back. Cribbing now from the Rock Center's description of Peter:
He writes in the areas of banking, bankruptcy, corporate, and administrative law, with a focus on the law, economics, and history of banking and bank regulation, financial and fiscal crises, debt regulation, central banking and the Federal Reserve, and corporate governance for banks and other financial institutions.
Conti-Brown's articles have appeared in the Stanford, UCLA, and Washington University Law Reviews, among other journals. He is also the editor, with David Skeel, of the book When States Go Broke: Origins, Context, and Solutions for the American States in Fiscal Crisis, published by Cambridge University Press. He has been quoted in print and online articles published by Reuters, The Economist, The New York Times, US News and World Report, among others.
Conti-Brown graduated from Harvard College, magna cum laude and Phi Beta Kappa, and Stanford Law School, and clerked for the Hon. Gerard E. Lynch on the United States Court of Appeals for the Second Circuit. Conti-Brown will be a PhD candidate in history at Princeton University beginning in 2013, where he plans to focus on economic and financial history and write a dissertation on the financial, intellectual, and political origins of the Federal Reserve System.
Welcome, Peter. Looking forward to your posts!
Over at theracetothebottom.org, Jay Brown of the University of Denver has a new listing of law professors who blog. This is part of an extensive project he's working on regarding the impact of blogging on the legal academy. I wrote some about this on Saturday and you may be interested in the paper "Law Faculty Blogs and Disruptive Innovation: The Data" Jay has up on ssrn.
One thing that I'd be interested in seeing is the data re-ordered from school name to the U.S. News peer assessment rank of the school; I think that would convey well -- and easily -- how the distribution of bloggers are distributed. There's a ton of interesting data that one could add to this study -- like age, time in the academy, and areas of teaching and research for bloggers. I continue to be mightily interested in the phenomon of blogging and continue to wonder why people blog. I think this data can really help us get at some interesting issues.
Professor Jay Brown of the University of Denver Law School (and also RacetotheBottom blog) has been talking at his blog the last couple of days about his new study, "Law Faculty Blogs and Disruptive Innovation: The Data." (Thanks to Paul Caron for point this out.) Long-time followers of the legal academy and blogs may recall that Jay has written before (and here) about who's blogging and what that means. Jay is returning to this subject, in part to see how things have changed and also I think to take a measure of how blogging is becoming commonplace and also how maybe traditional. I think that's the right word. Here is Jay's abstract:
Blogging by law faculty has been going on for more than a decade. During that period, law faculty blogs have become widespread. They have also been increasing used as authority in law review articles and court decisions. The attached paper sets out the empirical data that shows who, as of May/June 2012, is actually blogging at various law schools. This is a notoriously difficult data set to create since there is no single list of law faculty blogs. Moreover, some faculty blog at non-faculty blogs.
The data in this document includes a breakdown of the number of law faculty bloggers by law school. Interestingly, most law faculty bloggers are at law schools outside the top 50 as ranked by US News. In addition, the data includes the number of citations for law blogs in both law reviews and court opinions. One law faculty blog has over 700 citations in law reviews. Another has over 40 citations in cases.
Finally, the data includes a list of US law faculty in the top 200 of SSRN downloads for May 2012. The list includes any blogging affiliation of these faculty. The data shows that for faculty in the list but outside the top 10 law schools (based upon the ranking created by US News) many of them blog, suggesting that there is a correlation between blogging and SSRN downloads.
There are a couple of things that faculty lounge readers will find of great interest. Jay provides a census of law professors bloggers -- it's an interesting companion to Bridget's twitter census. Someone should certainly compare those two lists -- and I'd observe that Jay has a very nice table organized by U.S. News rank of how many people at each school are blogging (which you might be interested in comparing to my re-ranking of Bridget's list of law professor twitterers). He reports that there are 19 bloggers at top 10 schools; 40 at schools ranked 11-25; 49 at schools ranked 26-50; and 90 at schools ranked 51-100. If you take the top 50 schools together there are 108 bloggers. (There's an obvious question abou the number of faculty at those levels; my guess is the higher ranked schools have substantially more faculty than the lower ranked, but I'm not sure of the proportions.) I'd be interested in speculation on the meaning of this.
Jay also provides a table ranking blogs by number of citations in court opinions and in law journals. (One side note here -- many thanks to the readers who've cited discussions here at thefacultylounge.org in your scholarship! I suppose I need to acknowledge that we're not doing as well in citations as we do in readership -- we're ranked in the 40s in terms of citations, but I think in the teens these days on readership.)
What Jay doesn't provide here is a list of how much individual bloggers are cited; and that I think would be a nice point of comparison. One question that I've talked over with both Krawiec and Filler is the problem of trying to figure out how much blogging affects citations. (One not great measure is citations to bloggers vs. citations to non-bloggers on their faculty/on other similarly-ranked faculties in their age/experience range.) I think one reason many people blog is to get increased attention for scholarship that appears in some form other than a blog and I'd be curious to know how much -- if at all -- blogging is helpful in that regard. Who knows, maybe one of these days I need to revise my rather pessimistic view of blogging.
Given the criticisms in the comments to Bridget Crawford's post on the law professor Twitter census, I think it might be worth it to look a little more deeply at the issue of law professor "tweeters." As I indicated in the comments on Sunday afternoon, I'm coming late to the issue of Twitter. I wondered why a law professor would tweet? Michelle Meyer had some apt observations about its importance in the comments.
I thought Bridget's census might be worth a little more inspection, in terms of the question: who's tweeting? There are 139 tweeting professors identified as of June 8th by Bridget Crawford after removing 7 professors at schools outside the U.S. and one at UC-Irvine, which U.S. News has not yet ranked. The professors are on the law faculties of 92 schools in the United States. Many professors are the sole known tweeter on their faculty, but one school (Pace) has five, Pepperdine and SMU each have four, and Chicago, Drexel, Harvard, Southern Illinois, and St. Louis University each have three. Focusing now on the ranks of schools of the 121 professors at U.S. News “top schools” (ranks published in March 2012): The range of school ranks is represented from 1 through 145, with a median rank of 58.0 and a mean of 65.4 (SD = 44.3). Schools of 25% of professors in this group had a rank between 1 and 26, and schools of another 25% had ranks between 101 and 145. Eighteen other professors are at U.S. News “second tier” schools, whose ranks were not published. They are at 14 different schools. One thing is clear: law professors at schools throughout the U.S. News spectrum are tweetting.
I'm guessing that tweeting is about getting information out, building a community, and -- ultimately -- a reputation. We could debate whether faculty are entitled to build their personal reputation on the law school's budget. But I think most people think they are not only entitled to but expected to help build the institution's reputation. Student reliance on U.S. News suggests that strong reputation is something students want. As we have seen repeatedly and in many contexts, school reputations are important.
At right is a bar graph that shows the distribution of law professor tweeters according to their schools' U.S. News ranking.