The Fault, Dear Brutus, Is Not in Our Blog Software, But in Ourselves

In 2006, Orin Kerr argued that blogs weren’t doing much for legal scholarship. He’s since changed his mind, principally because “legal blogs have become an acknowledged and accepted part of the world of legal scholarship.” Why did that happen? As Kerr puts it:

Advances in the technology widely used by legal bloggers have facilitated the changes. My skeptical view from 2005-06 (see excerpt above) was based on the blogging technology generally in use at the time. Back in 2005, comment threads were still pretty new. We didn’t start experimenting with them here until late 2004. At the time, it was also very hard to link posts or hide the bulk of a long comment behind a hyperlink. Also, my recollection is that Google did not index blogs in the early days of legal blogging. Further, it was odd at the time, if not unheard of, to use google or any other search engine to do legal research.

Although Kerr has clarified his post to talk about the technology used specifically by legal bloggers, this history is misleading. These features are all much older. Jason Kottke publicly deployed permalinks in 2000. Comments, individual archive pages, and splitting a post into introduction and extended body are all also roughly turn-of-the-century. Google has always indexed blogs like anything else on the web; by 2002, people were worrying that Google paid too much attention to blogs. And this correspondent, at least, was using Google and Lexis in tandem to do legal research in 2002.

These weren’t niche features, either. If you want to trace themback into community sites, like Slashdot, they’re all attested well back into the 1990s. As for over-the-counter blogging software, Movable Type shipped in 2001 with comments, permalinks, individual archive pages, and extended entries.

Kerr’s thesis might be more accurately restated as, “Between 2006 and 2009, law professors discovered how existing blog features could be used effectively for scholarly purposes.”