Balkinization

Citation Counts to Balkinization in Law Reviews (and what this says about changes in legal scholarship)

Orin Kerr found that law review citations to our friends at the Volokh Conspiracy have been increasing significantly over the years. Using the same methodology (citations to balkin.blogspot.com in Westlaw JLR database limited to each year) I discovered the same thing is true of Balkinization.

In 2003 we received 1 cite; in 2004 3 cites; in 2005 14 cites; in 2006 36 cites; and in 2007 49 cites. As Orin reminds us, some law journals have not yet published all their 2007 issues, so the final number for 2007 may be slightly higher.

These results suggest that blogging has become a more widespread and accepted practice in the legal academy. It's important to remember that people cite for many different reasons: to give credit for ideas, to criticize ideas, and as (persuasive) authority. My guess is that most of these citations fall into the first two categories, but that is true to many citations for law review articles as well.

I'm hoping that some enterprising scholar will do a study of citation practices to a selection of 20 or so well known legal blogs to see if the citation patterns for these two blogs reflect a general trend. (Perhaps it's already been done-- please let me know in the comments.)

If so, it suggests that something very interesting is happening in legal scholarship. The legal academy is gradually becoming acclimated to blogs as vehicles of scholarship and scholarly quality. But perhaps even more important: Blogs are not displacing standard form legal scholarship; rather they are being assimilated into the larger universe of legal writing and becoming part of the web of citations and authorities along with cases, treatises, law review articles, and casebooks.

This difference between displacement and assimilation is quite important for a number of reasons. When people cite to blogs, they are simultaneously inserting blog posts into a pre-existing economy of accreditation and salience. Put more simply, they are using the tools law professors already use to decide what's relevant and important to legal scholarship in order to decide which blog posts are relevant and important. Blogging has its own methods of accreditation and salience: linking practices are the most obvious example. But my point is that the old forms of accreditation and salience are not simply being shoved aside: rather they are also reaching out to include some parts (but, importantly, not other parts) of the blogosphere. We can see traditional legal scholarship thus evaluating and coopting new media, just as we can see new media entering into and challenging existing forms of legal scholarship.

In hindsight, of course, all of this makes perfect sense. People and institutions are already deeply invested in existing forms of publication and accreditation. Careers and reputations have been built and maintained based on the old tools and the old forms. Therefore there will be no dramatic revolution in the ways that law professors write and how they judge and accredit quality. Rather, what we will see is the use of old tools for new purposes extended to new forms of writing, and the gradual assimilation and coopation of new forms and tools to older purposes. A revolution in legal writing and legal scholarship is coming, driven by changes in technology, but it will be far more gradual than some people expected (or feared), and it will look quite different than people initially imagined.

Posted 2:40 PM by JB [link]

Comments:

Predictions of revolution in these arenas always provoke a skeptical response from me. This characterization of the relationship of blog posts to legal scholarship fails to recognize a deeper tradition of unorthodox sorts of media and genres and their assimilation "into a pre-existing economy of accreditation and salience." I'm thinking, for example, of Rule 17 in the Bluebook, which addresses unpublished materials, including among other sources press releases, interviews, and speeches. It would be worth examining when references to these sources achieved a salience warranting their inclusion in the citation style rules, too. Assuming they have appeared in several editions, I think this post implies a mistaken assumption that legal scholarship is especially rigorously monitored for creditable sources, along the lines of published law review articles, other disciplines' standard forms of publication, and so forth. In fact, the literature probably includes a wide range of sources.

# posted by

Dean C. Rowan : 8:57 PM

Jack,

To confirm your point, one of my Balkinization posts is being reprinted in a forthcoming jurisprudence text. I was surprised when notified of this, but it makes sense. Serious posts contain useful information.

Brian

# posted by

Brian Tamanaha : 10:39 PM

I like to call blogs the "tertiary" source of legal scholarship. But maybe that's just my Masonomics opensource bias!

# posted by

Kat : 11:29 AM

Prof. Tamanaha:

To confirm your point, one of my Balkinization posts is being reprinted in a forthcoming jurisprudence text. I was surprised when notified of this, but it makes sense. Serious posts contain useful information.

Guess I don't have that bragging right, but I did get this interesting (but unconfirmed) nugget a while back:

Are you aware that one of your old posts [here] is being used to torture Loyola Law School (Los Angeles) students? It is part of the material they must use to write a paper for the competition to join law the school's Law Review. They can cite your post from 2005 about "exigent circumstances" for warrantless searches.

Never got more specifics ... and I'm not sure whether this was to laud my "scholarship" or to cut it to ribbons.... ;-)

Now if I can get UC/Yale/Hahvahd....

Cheers,

# posted by

Arne Langsetmo : 1:13 PM

Arne,

Congrats!

Brian

# posted by

Brian Tamanaha : 7:45 PM

I'm currently editing an article for the New York City Law Review (CUNY Law) that cites a post from your blog.

# posted by

Michael : 11:50 PM

You folks fail to recognize that the biggest problem concerning authoritative citation of blogs is the arbitrary censorship of comments and commenters. It is actually the comment sections that make blogs attractive as references by helping to present a variety of views and helping to make the blogs self-correcting on the facts. Blogs where visitors' comments are arbitrarily censored have no credibility.

There is absolutely no reason why a blog post and its comment section should look like a peer-reviewed paper in a scholarly journal. They are completely different media.

And if you think that this arbitrary censorship does not go on all the time, you are very naive. For example, the Law X.0 blog (formerly Law Blog Metrics), a member of the Law Professor Blogs Network, refuses to post any of my comments, even though my comment submissions there have always been on-topic, serious, and polite. That this kind of censorship is condoned in the law blogosphere is a reflection of the abysmal ethical standards of the law profession.

Larry Fafarman
Association of Non-Censoring Bloggers.

# posted by

Larry Fafarman : 11:50 PM

>>>>>>I'm hoping that some enterprising scholar will do a study of citation practices to a selection of 20 or so well known legal blogs to see if the citation patterns for these two blogs reflect a general trend. (Perhaps it's already been done-- please let me know in the comments.) <<<<<<

This fairly old article (dated Aug. 16, 2006) shows that several other blogs have experienced rapid growth in citations in law journals:

The legal blogs with the most citations are:

Sentencing Law and Policy (78)
The Volokh Conspiracy (62)
Balkinization (32)
SCOTUS Blog (32)
How Appealing (30)
Legal Theory Blog (30)
Lessig Blog (21)
Patently-O: Patent Law Blog (17)
ProfessorBainbridge.com (16)
The Becker-Posner Blog (12)
Leiter Reports (10)
White Collar Crime Prof Blog (10)

The legal blogs with the greatest overall increase in citations are:

The Volokh Conspiracy (+ 21)
Balkinization (+ 18)
Sentencing Law and Policy (+ 18)
Patently-O: Patent Law Blog (+ 13)
SCOTUS Blog (+ 13)
How Appealing (+ 11)

These big growths in numbers are relative to another list that was only four months old (April 19, 2006), though of course that doesn't necessarily mean that all of those extra citations were published during that four month period, though presumably many were.

Your own data showing 49 cites of Balkinization in 2007 alone shows that the above data is badly out-of-date.

Also, this other fairly old article (dated Aug. 6, 2006) has data on blog citations by court opinions.

# posted by

Larry Fafarman : 8:04 AM

My student note, hopefully being published in May 2008, has a cite to Balkinization. So if all goes well, you may get a "plus one" in 2008.

My cite is just as a preliminary point of reference to the general academic discussion about my note case at the time it came down.

# posted by

Brendan M : 7:34 PM