September 21, 2006

Elitist Legal Scholarship

by Sean Sirrine

I read Brian Leiter’s Why Blogs Are Bad for Legal Scholarship and I couldn’t help but be disgusted with his elitism and his self-serving hypocrisy. He makes it very clear that there are only a few people who are “good enough” to be considered legal scholars and that the rest should just go crawl under a rock somewhere and keep quiet. Apparently, he deems himself to be one of the anointed ones that has a right to be heard from since he felt it was okay to let Yale to publish this particular piece.

I’ll start this response out with some words from Leiter himself so that you can decide later whether he, as a blogger with over 600,000 visitors in the last year, (not to mention his other blog which has had 3 million visitors since the beginning of this year), is dumbing down legal scholarship:

…blogs have been bad for legal scholarship, leading to increased visibility for mediocre scholars and half-baked ideas and to a dumbing down of standards and judgments.

I might have to agree with him if his arguments weren’t so illogical.

At the beginning of this paper there are a few moments when it seems as if he may actually make a point. His main premise revolves around a concept defined by Timur Kuran and Cass Sunstein termed an “availability cascade”. It is a beautifully articulated concept which I’ll let them define:

…a self-reinforcing process of collective belief formation by which an expressed perception triggers a chain reaction that gives the perception increasing plausibility through its rising availability in public discourse. The driving mechanism involves a combination of informational and reputational motives: Individuals endorse the perception partly by learning from the apparent beliefs of others and partly by distorting their public responses in the interest of maintaining social acceptance. Availability entrepreneurs—activists who manipulate the content of public discourse—strive to trigger availability cascades likely to advance their agendas.

Of course, any of you that have any exposure whatsoever to blogging will recognize immediately where Leiter is going with this. Essentially, bad legal beliefs may formulate a following by being repeated often across the blogosphere. Now, this is an interesting question, (although it is far from novel), but the rest of Leiter’s paper does nothing to back up this proposition.

He starts off explaining how this will happen by pointing out that he doesn’t like student-edited law reviews and that he thinks those in the legal field are far inferior to those that spend their time on philosophy. I’m not kidding; he actually writes that if he were to try to fool people on his philosophy blog people would stop reading it because they would know he was a charlatan. However, those of us in the legal field are easily led astray on blogs because of law reviews and journalists. If you’re having a problem following this logic, don’t worry, it isn’t logic at all.

In Leiter’s view, law reviews are susceptible to less than stellar articles that are in essence the result of the cascade of bad information on legal blogs, whereas philosophy journals aren’t susceptible to this problem because they are peer-reviewed. I’m not quite sure why Leiter posits that philosophers aren’t influenced by availability cascades, but that is outside the scope of this response. Instead let us return to the actual theory of Leiter’s paper. At this point we could surmise that “blogs are bad for legal scholarship because law reviews are easily steered by public discourse”.

But wait; are student-edited law reviews a new development in the legal world? Of course they aren’t, so apparently Leiter’s theory would have to be “blogs are bad for legal scholarship because law reviews are easily steered by public discourse and blogs steer public discourse”. Now that is a really interesting proposition, but one which is entirely without any backing. (At least in this paper.) For the moment we’ll give Leiter the benefit of the doubt, maybe blogs are currently directing public discourse. The question that I’m struck with now is whether blogs are directing discourse more than previous forms of media. I doubt that given the lack of any “barriers to entry” in the blogosphere and the enormous barriers that existed when only the rich controlled media outlets. Maybe his second point makes more sense.

His second reasoning is that journalists are now so enamored with legal blogs that they are asking people like law professors to tell them what the law means. I guess I should add “apparently more expert law professors” as Leiter did, but I’m at a loss as to why law professors are only apparently more expert than journalists on legal issues. This follows the same cascade theory is which journalists see so many legal blogs discussing an issue in a particular way that they repeat it to the general public. Once the general public is inundated with this particularly bad view of the law, more and more weak scholarship based on this view will show up in law journals. Apparently, as Leiter mentioned before, the legal community is a push-over for ideas that the public takes on face value.

Although this at least a better proposition than the first, it is still far from the mark. Let us once again return to the point of this paper which could now be written as “blogs are bad for legal scholarship because law reviews are easily steered by public discourse, journalists steer public discourse, and journalists are steered by blogs”. I’m truly at a loss as to why Leiter would even waste our time by writing this down. Maybe it is totally true, even so, why should I care? The only new idea here is that journalists are the “middle-men” that are destroying legal scholarship. Even if that is so, how is it any different from the way journalists influenced law reviews in the past? The only argument that Leiter can even stand on he has yet to make and that is of course that it really isn’t blogs that are the problem. (Which seems to negate the whole point of his paper.) The problem is that people are paying attention to the wrong blogs.

Here we discover exactly what it is that is bothering Leiter. No longer does Leiter hide his real reasoning, instead he admits that he just doesn’t like the legal bloggers that are being read. Here is an excerpt that makes it very clear what Leiter’s problem really is:

If the leading law blogs were written only by the leading scholars, the availability cascades that occur would be more likely to raise, rather than lower, the level of scholarly discussion. But that is, unsurprisingly, not the case. The most visible and highly trafficked law-related blogs have one, and only one, thing in common: they were started relatively early in the “blog boom,” that is, in 2001 or 2002. (Many, but not all, also tilt noticeably to the right.) Latecomers, like the Becker-Posner Blog or the University of Chicago Law Faculty Blog, which generally have much higher intellectual content, get nothing like the traffic of the early arrivals.

As you notice he totally negates everything he said previously in this paper. Availability cascades are a good thing if you consider the people that start them to be scholars, but if you don’t like what they write then they are bad. I find it particularly disgusting that he makes a subjective assertion that the “latecomers” have “much higher intellectual content”. Leiter apparently thinks that his view of whether a writer is a scholar or not should be determinative of whether they should influence the legal community.

I think it is completely clear that Leiter misses the good old days when the academic elite had complete control over the public discourse of legal issues. They were the only ones in the law reviews and it was the law reviews that set the tone. Apparently it was okay back then for student-edited law reviews to be “tricked” into publishing articles that were a product of the availability cascades of the time. Now that any legal writer can write something that might influence the legal community we need to fix this problem. He wouldn’t want some “low-brow” idea to influence the law. Instead, he is a proponent of “philosopher kings” ruling the masses.

He makes this very clear at the end of his paper with his argument against a market approach to legal scholarship. Here is Leiter in his own words:

The marketplace, through the price mechanism, may give us knowledge of what people want, but what people want is hostage to their ignorance and irrationality, the latter two characteristics often exploited by the marketplace. The knowledge we gain from markets, in consequence, is of a peculiar kind: it is not knowledge of what makes people better off or of what makes for good lives, but rather knowledge of the current psychological condition, stunted or manipulated or otherwise, of the populace.

We’re just to accept as fact that Leiter isn’t held hostage by his ignorance and irrationality like the rest of the American populace. That sounds like a half-baked idea to me and I’m not willing to dumb down my standards.

September 21, 2006 11:24 PM | TrackBack


All you have to know about Prof. Leiter is this: he's probably good at philosophy. Once you get him out of that arena, it's easy to tell he's full of--well, full of himself, anyway. He can't even get his facts straight. Take this howler:

"The most visible and highly trafficked law-related blogs have one, and only one, thing in common: they were started relatively early in the “blog boom,” that is, in 2001 or 2002."

There's no link to the "most visible and highly trafficked law-related blogs," so it's difficult to tell what data set he's working with. But certainly Professor Bainbridge would count--he shows up in most top-ten lists of that sort. He started in September 2003. Sentencing Law and Policy, which is to my knowledge not only one of the top-traffic sites, but one that gets the most case citations? Again, late 2003. Now, maybe he has some data set for which this is true--who the hell can tell, because this tremendous "scholar" is fond of making claims that are utterly unverifiable--but I'd love to see it.*

Leiter has made it pretty clear he doesn't understand the technology, isn't willing to learn facts and is fully committed to remaining convinced of his own superiority. I'm utterly amazed that Yale felt this article worthy of publication: the historical claims are a farce.

Anyway, don't let Leiter get your blood up. According to him, guys like me were never going to graduate from law school. Way back in the Spring of 2005, a national draft was going to emerge (as GWB revived a dead draft bill supported only by Democrats), and since the military would suddenly want men sliding into middle-age, I'd be drafted before I ever got my JD.

He's worth reading for the humor value, but "disgust" at anything he writes is just too much credit.

*It's vaguely possible that he's trying to make a "true but trivial" point. He might limit himself to a very small data set: basically, Volokh, Instapundit and one or two others. That's a bit silly, though, because Instapundit isn't a scholarly blog at all, and isn't meant to be. If that's what he's moaning on about, it's about as sensible as me complaining that the modest pickup in my Scion xB is ruining the world of performance automobiles. You could say it, but it would just prove you're clueless.

I can't think of a realistic "top ten" list (or even top seven) that would include only blogs starting in 2001 and 2002. (Actually, I can't think of four that fit that bill by any objective standard.) And the top two or three blogs, on their own, will represent a very small share of blog traffic, actually.

Anyway, any attempt to come up with a list of "most visible" law blogs is either going to be (a) highly subjective (Leiter's forte) or (b) require one to come up with metrics of visibility and traffic. Given how tough it is for experts on the internet itself to settle on a standard for ranking such things I doubt Leiter has much to say there.

Posted by: A. Rickey at September 22, 2006 05:59 PM
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