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« Part Five: Law Blogs, Law Journals and the Law Student | Main | Part Three: Linking “Electronic Scholarship” and “Traditional Scholarship” »

Part Four: Content Matters: Evaluating Blogs and Online Supplements as Scholarship

This post continues a five-part series examining legal scholarship in the electronic world.  Part V will appear within the next week.  Alan Chen is the Associate Dean for Faculty Scholarship and Professor at the University of Denver Sturm College of Law. Professor Chen publishes in the areas of constitutional law and civil liberties. You can find his research here.

Alan K. Chen

What role do blogs and online law review supplements play in evaluating faculty for hiring and promotion purposes?  As new ways of disseminating knowledge evolve, all law schools will have to struggle with this and other questions.  I offer only a tentative prediction here, because I think we will need more collective experience before we fully understand how these materials fit into traditional academic literature.  Moreover, as Ellen Podgor has observed, it is altogether possible that before long, even these relatively new media will be supplemented or surpassed by other methods for conveying scholarly ideas.  Such developments could require us to rethink the whole field again.

Preliminary views about blogs and supplements are already sharply divided.  Podgor argues that thoughtful, well written, and important blog posts should be considered as part of a candidate’s body of scholarship.  A person’s regular participation in online discussions of complex legal matters can also be an indication of a lively intellect and a habit of thinking about legal issues in a scholarly way.  In contrast, Kate Litvak expresses skepticism about blogs’ ability to transform legal scholarship.  Brian Leiter points out that blog content can be questionable because of the absence of mediating entities to ensure quality control (though this arguably should be less of a problem for online supplements, which are vetted by editorial staffs).  Another challenge is that blog posts and online law review entries are necessarily less comprehensively descriptive than traditional law review articles.  Although even law reviews are seeking shorter works, it may be difficult for scholars to demonstrate the depth of their knowledge of an area of law or the landscape of academic literature in shorter, online formats.

Despite these concerns, surely the content of a person’s description, analysis, and synthesis of legal theory and doctrine on blogs and online supplements can be evaluated on the metrics used by most law schools.  My own school’s tenure standards require faculty to produce “serious scholarship, demonstrating more than the legal craftsmanship ordinarily to be expected of a lawyer.”  A candidate’s scholarship must “demonstrate the ability to conduct thorough research, to analyze with rigor and to synthesize findings.”  In hiring new faculty, we look for candidates with strong potential to meet these standards.

In one sense, evaluating online publications should really be no different from evaluating print material.  Keep in mind that these are simply new delivery mechanisms, not different forms or genres of legal scholarship.  On the other hand, we could think about assessing online material in the same way that we might think about assessing work in a new school of legal thought.  When an emerging intellectual framework for analyzing the law evolves—say, law and economics or critical race theory—there is inevitably, as in any genre old or new, high quality work and work that is, frankly, not as good.  There will be rigorous, careful, well-defended work, and there will be sloppy, less thoughtful work that tries to pass muster solely by its self-identification with a trendy new jurisprudential perspective.  For such genres to sustain themselves, scholars must critically examine the field and identify criteria by which the work can be judged (for an outstanding and self-reflective discussion of just such an effort, see Keith Aoki & Kevin R. Johnson, An Assessment of LatCrit Theory Ten Years After, 83 Ind. L.J. 1151 (2008)).  My sense is that the evaluation of online dissemination of scholarship will require scholars to make the same calls.

What distinguishes a thoughtful, intellectually sophisticated, coherent, deeply analytical blog post from a gossipy, narcissistic rant?  Ultimately, the role of blogs and online supplements as a form of legal scholarship will come down to an assessment of the rigor and quality of the work—the organization of the argument, the flow of the prose, the thoroughness of the underlying research, the exhibition of a deep knowledge of an area of law and the scholarly literature addressing it, the carefulness and meticulousness of the analytical arguments and the defense of the thesis, the identification and thorough defense of a theory or perspective for evaluating law, a close match between what the author promises to do and what she delivers, the ability to anticipatorily respond to the most vigorous and valid criticisms of the writer’s thesis, and so forth.  It is, after all, only the content that matters.




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