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May|June 2005


By Lincoln Caplan

THE SUPREME COURT RECENTLY MADE HISTORY by citing a blog. Called "Sentencing Law and Policy," it's a year-old web log by Douglas Berman, a professor of law at Ohio State University ( Berman was reacting to the hubbub about Congress's 1984 act setting forth guidelines for sentencing. Federal judges had to follow the guidelines until the court ruled them unconstitutional in January—a decision that referred to Berman's blog as the place to find a Justice Department memo about how prosecutors could get courts to increase sentences beyond the maximum in the guidelines. Berman launched his blog in part because the law was changing so rapidly that his recommendations would be stale if he published them in traditional law reviews.

Berman's is among the best law blogs in the country, though not the best known. That may be "The Volokh Conspiracy," a three-year-old group effort featuring conservative views that is led by UCLA law professor Eugene Volokh ( Or it may be "Underneath Their Robes," launched last summer by the anonymous A3G (Article III Groupie), who says her blog is about her "obsession" with federal judges, which extends to her picking Manhattan trial judge Kimba Wood as the hottest one ( Or it may be "How Appealing," the three-year-old blog specializing in appellate law, written by a Philadelphia lawyer named Howard Bashman and so respected that I'd mention it even if it weren't hosted by this magazine (

In 2004, according to the Pew Internet Project, blog traffic skyrocketed, increasing by 58 percent in a year when overall net traffic was up only 6 percent. Still, 62 percent of Internet users in the Pew survey said they had never heard of blogs. The fledgling status of blogs means their track record is too slight to stand in the way of grandiose claims about them. Media critics hail them as a populist advance, a form of grassroots journalism. Since anyone with a computer can blog, the form allows bloggers to reach an audience without having to please gatekeepers in the mainstream media. Bloggers can speak directly to the people, the argument goes, the uncredentialed competing with the credentialed. "We fact-check your ass," as the early blogger Ken Layne put it, and bloggers have helped take down top journalists like former CBS News anchor Dan Rather.

But that doesn't mean the sans-culottes want to be treated differently than the aristocrats when it comes to privileges. In a California lawsuit about whether the state's shield law for journalists protects the confidentiality of bloggers' sources, a trial judge ruled that no protection existed for three so-called rumor sites that blogged about unreleased Apple products. But the debate is just beginning. To answer the meta-question—are bloggers journalists?—some contend that bloggers are if they say so, or if they seem to do what journalists do. Never mind the irony of bloggers' insisting on being classified as journalists at a moment when that's not necessarily a mark of distinction, with courts saying reporters can be thrown in jail when they invoke the sort of privilege bloggers were denied in California.

BERMAN'S BLOG IS ALSO A BLAWG, however: a blog about the law. Most blawgers are law professors, lawyers, or law students and, reading what they post online, you realize that they're not the uncredentialed challenging credentialed journalists, but credentialed lawyers (or lawyers-in-the-making) endeavoring to take back their subject from journalists and talking heads. While much of their content is gossip, a lot is commentary geared toward legal experts and virtually impenetrable for anyone else. Rather than being a populist advance, blawgs are often outlets for rarefied material.

A generation ago, the goal of influential forms of journalism was to make the news broadly accessible and give us a common basis for making social choices. Journalism about the law shared those aims. Since the trial of O. J. Simpson a decade ago, however, journalism in general and especially about law has been defined by narrowcasting. The popular media are full of legal coverage, but much is of a limited kind—about celebrity justice or the controversy du jour—with each type of journalism aimed at a different audience.

You can herald blawgs as providing analysis, information, and opinion in a new form. You can dismiss some as a way for people with tenure and a lofty opinion of themselves to have their say in yet another forum. However you slot them, the impulse to blog often seems to be the opposite of the effect of blawgs. The key ones are efforts by lawyers and academics to be public voices, to matter outside the legal world, to connect. Yet while blawgs are blogs, they rarely have the populist touch that is supposed to make blogs blogs.

Lincoln Caplan is the editor and president of Legal Affairs.

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