Sunday, August 4, 2013

Professor Lucy Jewel on the Influence of the Scam Blog Movement

The scam blog movement has had a significant influence on legal education and the legal profession over the last few years.  While most commentators find that its influence has been harmful, it has had some positive effects, such as creating greater transparency.  Now, Professor Lucy Jewel has written an article that thoroughly investigates the influence of the scam blog movement.

You're Doing it Wrong: How the Anti-Law School Scam Blogging Movement Can Shape the Legal Profession

Abstract: One of the biggest social advancements that the Internet has given us is the capacity for an individual’s idea to reach a mass audience. Internet-based communication forms, particularly blogs, enable an idea to gain credence without the involvement of traditional mass media outlets, such as newspapers or television stations. With no “top-down” filter that controls what ideas get disseminated, the Internet can amplify voices speaking from outside the mainstream culture that perhaps would not be heard under the traditional media system. The open network structure of the Internet also allows ideas to reach broad audiences and enables individuals, operating independently, to create communities around ideas in an emergent fashion.

In addition to blogs, anonymity for online speakers and immunized liability for the intermediaries who provide access to Internet forums are two additional forces that have shaped the Internet as a place for the exchange of ideas. The relative anonymity that digital communication affords allows people to critically comment on controversial issues without facing negative career or other reputational consequences that might result if their opinions were voiced non-anonymously. Section 230 of the Communications Decency Act, which limits the liability of Internet service providers and website operators for comments made by ultimate end-users, has encouraged the flow of critical ideas and arguments; a different system, such as a notice and take-down scheme (seen in the Digital Millennium Copyright Act 5), might have produced a more restrained and conservative Internet and a less robust exchange of ideas.

Concurrently, the way U.S. law and the Internet’s open structure have expanded public debate of ideas and policy, and a new culture has grown up around the Internet. An optimistic view of Internet culture holds that it is, for the most part, a warm and open culture dedicated to community, collaboration, and open debate. A more negative take on Internet culture is that its default anonymity sometimes creates a race-to-the-bottom mentality, fostering environments where abusive and offensive comments flourish. In addition to forums that discuss important ideas, there are also forums full of racist, misogynistic, and other ad hominem attacks, which read like graffiti on a public bathroom wall. Another cause for concern is Internet culture’s unique approach to norm enforcement. A fairly prevalent practice of online public “shaming” has developed in which Internet mobs fulminate against perceived norm violators and wield frighteningly invasive vigilante-style remedies against them.

In contrast with the ribald and sometimes abusive culture of the Internet, the culture of the legal profession is restrained, deferential, and committed to resolving disputes through formal legal processes. Thus, there is a potential for conflict between the culture of the Internet and the culture of the legal profession. Specifically, normative conflicts are emerging with respect to blogs where lawyers air caustic, uncensored, and highly critical views of the legal profession. This conflict is exemplified by the so-called Law School Scam Blogging Movement (“Scam Blog Movement” or “Scam Bloggers”), a populist online community calling for reform of the way that law schools market themselves to potential law students.

With regard to the Scam Blog Movement, its shock-value approaches to rhetoric would certainly violate the legal profession’s cultural tradition of favoring formal, restrained, and process-oriented debates of legal issues. This Article argues that the good that comes to the profession from Internet culture outweighs the bad. Moreover, the value of the Internet’s information diffusion and community functions should not be discounted. This Article ultimately concludes that the legal profession will be strengthened by the new arguments and ideas entering online from the profession’s sidelines. Thus, we should to a certain extent relax our professional norms and allow these arguments to take shape.

In looking at the story of the Law School Scam Blogging Movement, Part I of this Article explains how the technological structure of the Internet enables ideas to solidify and spread in a way that differs from the way information is expressed in traditional media formats. Part II generally describes the attributes of Internet culture, both the good and bad, and contrasts that culture with the culture of the legal profession. Part III looks at the Scam Blogging Movement and argues that, when non-traditional members of the legal profession use the Internet as a forum to argue for reform, even if they do so in untoward ways, those arguments do impact the profession and should be listened to by all members of the legal profession.

(Scott Fruehwald)

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