Wednesday, August 15, 2012

Changing Conventions of What Counts as Serious

Tom-goldsteinOver at the Volokh Conspiracy, Orin Kerr (GWU Law) links to a fascinating interview with Tom Goldstein, the Supreme Court advocate who started the SCOTUSblog many years ago in the early days of the blogosphere. 

Goldstein's comments on the evolution of SCOTUSblog throw into sharp relief how the online world is gradually creating new institutions that chafe against established conventions of what is professionally or academically serious.  I am not kidding -- 50,000 visitors to the site a day, including hundreds or even thousands from inside the Supreme Court itself.  In comparison, Harvard Law Review has an annual subscriber base of 2,000 total.  (Goldstein mentions this in passing--the absolute pitch perfect way to deliver news like this.)

ScotusblogAnother interesting point made by Goldstein was how SCOTUSblog was originally started as a vehicle for marketing Goldstein's firm.  Yet, as readership took hold, he completely abandoned any attempt to directly advance the interests of his firm through editorial content--the benefits of cultivating a perception of objectivity were very indirect but ultimately much greater.  So journalistic firewalls have been erected.  If his firm is handling a case before the Court, or making a filing, it not discussed on the blog by anyone from the firm.  Outside commentators handle any relevant commentary.  Objectivity and thoroughness are the goals.

SCOTUSblog has also gravitated away from analysis done by students at Stanford and Harvard, where Goldstein runs Supreme Court clinics, to analysis by leading subject matter experts. (In the legal academy, we are often clamoring for peer review -- well, Goldstein has acheived it.) SCOTUSblog now runs well-attended symposia.

Folks, SCOTUSblog has become a highly influential institution that is closely followed by the Supreme Court itself.  And it started as a blog.  In fact, it still is a blog.  Based purely on reach and influence, it is more serious than any center operating out of a law school. 

Perhaps it is time for us to be more openminded about what "counts" as serious.  What Goldstein has created looks very serious to me.  (H/T to Orin Kerr for directing me to this excellent video.)

[posted by Bill Henderson]

Blog posts worth reading, Government lawyers, Video interviews | Permalink


That was extremely kind and generous of you. We really appreciate it. Congratulations on all the great work at Legal Whiteboard. -Tom

Posted by: Tom Goldstein | Aug 15, 2012 3:05:15 PM

In many cases - maybe more than "many" - the commentary coming from the Web is MORE serious.

There are significant impediments to getting serious, across-the-spectrum analysis & criticism from academia; not so on the Web.

Posted by: Brad Bettin | Aug 16, 2012 4:09:34 PM

SCOTUSBlog is invaluable for Supreme Court practice. But it's a little misleading to compare hits to paid subscriptions. The right comparison is hits to subscriptions + downloads off of WL + SSRN downloads of articles, if you are measuring something as (impossible to measure) as influence...

Posted by: dave hoffman | Aug 20, 2012 2:08:46 PM

Dave, We don't need to measure influence with precision. 20 years ago, SCOTUSblog did not exist. Now it was
- 50,000 visits per day, often over 1,000 from inside the Court itself.
- Moved away from student performed analysis to subject matter expert analysis, because they could
- Holding well attended conference on the topic of the day

Does any law school institution have this kind of pull among the practicing bar (i.e., influence)?

The simple point here is that SCOTUSblog commands eyeballs. For it to command this influence, it most likely comes at the expense of other information sources. This has been the business issue plaguing newspapers and mainstream media.

The paid subscription of Harvard Law Review was 8,760 in 1979-80. In 2007-08, it was 2,610 -- roughly a 70% decline. See Ross Davies, Law Review Circulation, Granted, a lot of that could be the result of Westlaw and SSRN being preferred distribution routes ... or maybe, from a busy lawyer's point of view, the web is better. A good blog is interesting, concise, relevant, the content gets refreshed, reflects current events, and the reader can "comment" and interact--indeed, the reader can be contribute to the content. HLR does not do that.

HLR may be "serious" for legacy reasons. Indeed, several Justices have decried the value of the high theory of law reviews, not making exceptions for leading flagship journals. And the law reviews have no outspoken defenders on the Court. SCOTUSblog is serious because it attracts daily readers and has built a true community of subject matter experts. Indeed, we have reason to believe that the Justices and the clerks are looking at the SCOTUSblog content nearly daily.

Institutions rise and fall. I don't think we need precise measurements to draw strong conclusions. The directionality and magnitude of the change in influences are amenable to reasoned analysis.

Posted by: Bill Henderson | Aug 20, 2012 9:40:47 PM


I'm not making any claim about "seriousness". Why would you think I am? I'm simply saying that it's not accurate to look at the # of hard copies a journal prints as a a very good - or even partially good - way of knowing if it is "in decline" or not. There are many fewer law firm libraries than there used to be, which accounts for most of the 70% decline you keep on mentioning. Does HLR have the "reach" it used to - the number of lawyers' eyeballs? I have literally no idea, and I don't think that Ross's subscription figures tell us the answer. Court citation numbers are not great indicators, but if they were, they wouldn't help your argument.

You seem to think that because SCOTUSBlog (and Concurring Opinions, and Volokh, and Leiter, and Above the Law, and this blog) command eyeballs, that time has competed away HLR's (and other journals' influence). That's a perfectly plausible hypothesis but it's not one that the data you advance supports. Perhaps SCOTUS took lawyers' eyeballs from the NYT. Or from a long liquid lunch, as was the norm in 1979-80 (I hear.) More importantly, I think we have literally no idea what percent of lawyers' mindshare HLR commanded in 1979. My guess: very, very little. You say that we can learn from directionality and magnitude of change in influence. I agree. But I think the numbers you are relying on are far too noisy to know where we're coming from or going to.

Now I happen to think that SCOTUSBlog provides an excellent product, though it's generally about a very, very narrow and somewhat misleadingly thoughtful and well-briefed slice of the american legal system. Similarly to How Appealing, it gathers lawyers' eyeballs. Does any law school institution singularly have "pull" in the way that ScotusBlog or AbovetheLaw have? That's a simply great question, but I wanted to respond to the empirical point I thought you were making.

Posted by: dave hoffman | Aug 21, 2012 11:24:12 AM

Dave, You are right, I can't make strong claims about HLR versus SCOTUSBlog in terms of which is more serious. I see evidence of SCOTUSblog growing in influence -- so it is now serious -- and HLR losing subscriptions but, plausibly, retaining is past influence. I also see SCOTUSblog having the ability to get subject matter experts for content rather than law students, though law students are available to Tom G through his law school work.

I think the world is changing. And I think we can start thinking about how internet based websites will supplant the influence of other institutions. bh.

Posted by: Bill Henderson | Aug 22, 2012 5:36:23 PM

Post a comment