Why Lawyers Aren't Journalists

When you have a small blog, with only, say, around 100 readers a day, 5-6 of whom are your personal friends, a good chunk of whom comprise a specialized audience of legal academics and lawyers, and the rest being "who knows what," you tend to forget that the "rest" might just include "major" bloggers or journalists. I have a friend who recently graduated from the Medill School of Journalism at Northwestern, so I shouldn't be surprised when some industrious and serious journalist arrives at my site via a Google or Technorati search. After all, when I blogged about Elizabeth Vargas' leaving the Nightly News and wondering if it was due to pregnancy discrimination, my post was picked up by both the Columbia Journalism Review Blog and Dahlia Lithwick of Slate. Big bloggers and real journalists do their homework, unlike, say, small time blawggish bloggers.

I suppose that if I had been writing one of my articles I would have made sure my writing was clear on each and every point, cross-referencing and footnoting. But that is both the limit and beauty of this medium. On the one hand, you can accesss Jonathan Adler's insightful legal analysis of the Rapanos decision not a day after it was released, and still wait for the law review article to come out six months to a year later. But while the public intellectual writing is good for its immediate utility, it is not as careful as the more traditional forms of academic expression. My own hyperbolic statements aside, I do recognize the limits of this medium. I was merely arguing that one need not be either a public intellectual legal academic or a traditional scholarship legal academic. One could do both in different mediums/styles to different audiences to extend the reach of one's ideas. I am an obsessive footnoter, for example, and I am relieved not to have to interrupt my writings (or if I do, with the easy APA/MLA style parenthetical) to footnote and But cf. this or supra that. I'm also happy to write short, "throwing out ideas" blog posts that later become more serious papers. But the more traditional legal academy will be the standard for now, because it has the benefit of time-delay (one of its pitfalls too)--the time-delay of serious consideration of an idea, the time-delay of long-form writing, the time-delay of submission process for publication, the time delay of student-journal editing, and the time-delay of post-publication peer review (don't ask me why, that's how legal scholarship works). With all that time, it's supposed to be "better" writing, and it is--but it's not the only type of writing upon which we should rely on to get good legal analysis. I'm a glutton, I like it all (except "cat blogging"--I'm not a pet person, and just don't care).

Blogging is immediate, and its reach is immediate--this is both good and bad. Polemic passes for argument in the blogosphere, as does snark for cleverness. The immediacy of the form does not lend itself to much editing or even pause for consideration. There is a lot of drive-by blogging or what I like to call "crime of passion" blogging. Plenty of people blog immediate, reflexive reactions. I used to blog shorter posts more frequently (but this was a long time ago, don't go searching for them and saying "ha! you were always verbose!"). I find that writing in that manner makes me write more emotionally, and not in a good way. I try to save my blogging for late at night, after all my work is done, and after I've thought about what I want to write over the day. Sometimes I actually have to do a bit of research for my posts, re-reading a few law review articles, cases, and the like so that I can pepper my post with a few cites (I can't escape the urge to footnote!). If I get angered by something on another blog or in the news, I wait a little bit before writing about it--this helps me avoid snark and vitriol, and other "crimes of passion."

I sometimes think about what I want to write, particularly if it is a major legal or feminism themed post, over the course of many days. I often wait out various blog-frays to see how the comments play out. I save my press criticism until other critics have weighed in. This is not to say that my posts are better for all this waiting--but it's better for me, at least. I am human, and I am as prone to snark and reflexive, defensive writing as anyone else. And if my posts are long, it's because I've been thinking about them a long time. If I had less time to think about them, I might have less to say--and I fear what I had to say would be uncritical and ill-considered. Good, concise writing isn't immediate or unreflective--it's the result of good editing. "Good writing is re-writing," as they say, but you only have so much time to edit or re-write before you have to click "publish" to get in your daily post.

My posts are long-winded, verbose flagellations for the eyes because they are largely unedited. I do a quick read-through at the end of the post, but I nearly always click "publish" without cutting out too much (although you'd be surprised how much I cut out along the way). Even if one takes time to blog, the perils of the "publish" button are manifest. It is immediate in its effect. The mistakes will be there, until you go back and edit. And at 2 am, you won't go back that night, and so the mistakes will be there for early risers to read.

But at least the same immediacy of the form that leads you to commit so many mistakes allows you to correct them just as quickly. (Well, if you blogged throughout the day, unlike me). My mistakes in the previous post? Too many to count. This is the problem of blogging between 12 am to 2 am, and timing yourself to limit it to an hour to an hour and a half. I incorrectly identified the name of a respected blogger's school. I can catch more than a few dangling modifiers, misspellings, and typos. And I lumped the much respected Jay Rosen in with Glen Reynolds and other hyperbolic blog-cheerleaders.

If this were a scholarly article, I would have been careful to make such a distinction. But this was my blog, and I am prone to such mistakes and conflations (again, look at the time stamp). This is not to excuse such imprecision. I'm grateful to Jay Rosen for stopping by and pointing out my sloppiness. It'll make me more careful in the future. Indeed, I have to be, if I am to adhere to my own "blawg"-cheerleading.

So what was I careless about, exactly? Well, having read Nicholas Lemann's critique of the blog-revolution in the New Yorker, I referred to all the blog-champions mentioned in the article in one sentence without making distinctions between them. Lemann (a writer I have much respect for) started off his critique with Glenn Reynolds (whose blog I don't care much for, and whose book I didn't care for either (not that I read the whole thing, I must disclose--Barnes and Noble eventually closed). What don't I like about Reynolds? He writes one line statements of opinion, and that's supposed to be revolutionary "blogging" by a citizen journalist? In this case, you're much better off reading Reynolds' law review articles. I should know, I've read them--I don't agree with his politics much, but I think his work on federalism is interesting and highly useful. So it's not like I'm a reflexive Instapundit hater--I just don't think that blogging, as Reynolds practices it (even though his blog is infinitely, "higher being" popular), is comparable to the Protestant Revolution. Yes, he compares blogging to the Protestant Revolution. I think blogs are a great and transformative medium--I've greatly enjoyed my own experiences blogging, and it has enhanced my scholarship. But I don't have delusions of grandeur about being Martin Luther. In light of the recent Lieberman blackface scandal, there is a lot that is negative about the blogosphere that Reynolds ignores. As a feminist blogger who has received a bit of hate mail, I know that there's a dark side. Reynolds is a bit too uncritically optimistic about the blog revolution, and too sanguine about the bloggers themselves. I'm all for the populist masses, but I don't think unfiltered expression is always good either. I like my freedom to say my two cents, but I also appreciate the professionals whose job it is to write their better-informed pieces.

Lemann then proceeded to critique Jeff Jarvis, whose writing I generally like much more (well, there's actual writing--have you checked out the one-liners at Instapundit?). But even Jarvis comes off in Lemann's article as using inflated rhetoric, and even a bit boorish: "The reference [NY Times tech reporter Markoff compared blogging to CB radio] is as old-farty and out-of-date as the sentiment. It's clear that Markoff isn't reading weblogs and doesn't know what's there. Hey fool, that's your audience talking there. You should want to listen to what they have to say. You are, after all, spending your living writing for them. If you were a reporter worth a damn, you'd care to know what the marketplace cares about. But no, you're the mighty NYT guy. You don't need no stinking audience. You don't need ears. You only need a mouth."

I'm not generally a fan of that kind of sound-byte writing, not that Jarvis always writes like that. I like his journalism and writing, and much prefer it to the one-line drive-by blogging of Instapundit or that by Markos Moulitsas of Daily Kos. (Yes, I'm a liberal, and no, I don't read Daily Kos.) In fact, I dont read either of those blogs much, unless they're referenced by other blogs I do frequent. Like say, bona fide journalist Josh Marshall at Talking Points Memo or fellow journalist/engineer Kevin Drum at Political Animal or the public policy profs over at The Reality Based Community. No one likes being confused and conflated with another, and it's unfair to lump Jeff Jarvis in with the hyperbolic cheerleading of Glenn Reynolds.

It's even more unfair to lump Jay Rosen into that category (much less the same sentence). So for that, I apologize. You read one article, you see a few names you've been reading for the past couple of years independently and in press criticism, it's 2 am, you put it all in one sentence.....and bad, careless writing ensues. I like Jay Rosen's writing the best. I've been interested in press criticism for a while now, and regularly stop by Rosen's PressThink as well as Jack Shafer's Press Box at Slate. Rosen is an established journalist (as is Jeff Jarvis), professor of journalism at NYU, and a very good press critic--who happens to be optimistic about blogs, but not uncritically so. It was a major slippage to insinuate that his optimism about "civic journalism" (something I share, just not to Reynolds' extent) and his creation of New Assignment.net (which actually will use journalists I think, just without the command-and-control editor) is hyperbolic blog-cheerleading. Never refer to another author's arguments or article without distinguishing them from your own--whether in a law review or on a blog.

Lemann's article (and much of Shafer's criticism) is much of the same: "don't get too excited, it's not all it's hyped up to be." That's hard to disagree with as a general principle, but the arguments for it fall as flat as Reynolds' type exuberance about blogs transforming traditional media "akin to what happened to the Church during the Reformation." That's not to say milder forms of optimism aren't justified--I am quite happy to get some of my analysis and news from jouralist blogs, but I wonder if I self-filter this democratic medium by only reading blogs by journalists. But at the very least, if I read in this manner, I should distinguish a journalist's blog (and his ideas) from another blogger.

Jay Rosen (I can't believe he actually read my blog) stopped by and gave this as an example of his well-considered views on blogging:

Dan Gillmor’s famous insight, “readers know more than I do,” makes great intuitive sense. But making sense is not enough. In fact it’s not clear yet how we can take ideas and developments like… distributed knowledge, social networks, collaborative editing, the wisdom of crowds, citizen journalism, pro-am production, decentralized newsgathering, we media… and turn them into actual investigations, published reports that draw attention because they reveal what was previously unknown— you know, news.

But I highly recommend also reading his response to Lemann at PressThink.