One of the refrains I hear most frequently as a legal reporter is this: Journalists just don’t get it right when they talk about the law. It’s a criticism we often hear from judges-who say that reporters misunderstand and misrepresent what goes on in their courtrooms. We hear it from attorneys, who say the press accounts of their cases are riddled with error and bias.
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Recently we even heard it from U.S. Supreme Court justice Anthony Kennedy. In a speech to the American Society of International Law in Washington, D.C., last March, he complained that editorial writers frequently “misinterpret” the Court’s reasoning, and then pointedly suggested that “editorial writers . . . read the opinions before they write their editorials.” Ouch.
The complaints come in two flavors: Journalists either distort the facts in an effort to be exciting, or, if we are venturing an opinion, we misunderstand and misrepresent the Court’s logic because we think the result is all that matters.
My guess is that legal reporters are not sloppy or lazy-indeed, most of them impress me as meticulous and precise. The problem is that it’s quite difficult to write about law in a way that is both technically accurate and also interesting and accessible to lay readers. That also explains the gaping chasm in the universe of legal writing: There are endless law review articles, and there are compacted news stories about court cases. In the middle, there are a few magazines that cover legal news ( The American Lawyer, The New Republic, The New Yorker), and a plethora of cable TV shows that report every titillating detail of the latest celebrity shoplifting, divorce, or murder case.
When the U.S. Supreme Court heard the probate case involving celebrity siren Anna Nicole Smith, most of the cable news reporters devoted one moment to the problems of interstate battles among probate courts, and three hours to the burning questions surrounding Smith’s dieting and wardrobe choices. It’s awfully hard to talk about the law in a fair, moderate, and interesting way when everyone else on the TV, radio, and op-ed pages is dumbing it down.
And that’s where the blawgs come in.
“Blawgs”-for the uninitiated-are legal blogs, and if you haven’t incorporated them into your daily reading, you are missing out. The most compelling, cutting-edge, honest legal writing being produced in this country today is happening on the Internet, and the crop improves daily. From the fistful of judges (including Richard Posner) who maintain regular blogs, to the vast and growing number of law professors and law students who find the time to post daily, it’s clear that the real bones and guts and sinew of the national conversation is happening online, and not in print.
As I write this column, the major newspapers are consumed with two or three big legal stories. And that’s fine. But, today in the blogosphere, the debate ranges from free speech on college campuses (at The Volokh Conspiracy) to Yale’s decision to admit a Taliban student (at Glenn Reynolds’s Instapundit). Douglas Berman-whose blog, Sentencing Law and Policy, has now been cited in 21 judicial opinions-is tracking the fallout from the Supreme Court’s sentencing guidelines cases. Lawrence Solum is unpacking the “nuclear option” on his Legal Theory Blog, while Rick Garnett engages PrawfsBlawg readers in a discussion of free speech constraints on religious ministers. Meanwhile, Howard Bashman offers a clearinghouse of all the legal news of the day at his �ber-blawg, How Appealing. [Bashman's blog, which can be found at howappealing.law.com, is an affiliate of ALM's Law.com network.]
And that’s not even the tip of the iceberg. Ian Best, a third-year law student at Moritz College of Law, is creating an online taxonomy of blogs by attorneys, judges, and law professors-and he’s still counting at 643. Best’s site, which calls itself 3L Epiphany, offers ample proof that the Internet is poised to accommodate an entire universe of lawyers and legal thinkers. Why? Because it promotes dialogue, offers instant access to primary texts, and imposes no space or time constraints.
And why are legal blogs already so much more nuanced, opinionated, and exciting than most other types of legal writing? I think it’s because legal journalism has operated for so long along a fairly narrow bandwidth. Some legal writers have simply internalized the canonical rules of legal writing in general: Separate fact from opinion. Respect authority. Sedate is good, but boring is better.
Other journalists have the opposing tendency, which is to skip over the so-called boring bits and shorthand technical details. Justice Kennedy is correct in pointing out that while editorial writers are quick to express opinions about the case law, they don’t always take the time to explain how or why the courts arrived at their decisions. A results-oriented analysis of a case too often suggests that the justices took a results-oriented route to get there.
If you combine a journalist’s fear of offering a personal opinion with her even greater fear of boring the reader, the result can be legal writing that is too constrained, while at the same time fixates on the details of the human drama at the expense of explaining the legal dispute. By contrast, legal blogging is wonderfully technical and detailed, but also largely accessible and opinionated. In the blogosphere, the taboo on opinionated legal writing has been lifted. Even better, law professors, who can be exceedingly cautious in print, sometimes become slightly drunk on the Internet’s thin air. Whereas legal thinkers once limited their most serious scholarship to law review articles, occasionally nipping out into the dangerous world to write an op-ed, now many of them offer off-the-cuff observations about everything from partial birth abortion bans to their favorite CDs, several times daily. The blogosphere thrives precisely because it exists at the interstices of the ivory tower and pop culture. As a result, it’s the most fertile ground for cutting-edge law talk.
To be sure, legal bloggers are still working through their growing pains. Debate rages among them about whether law review articles are relevant anymore, whether blogging counts as real scholarship, whether junior faculty should avoid blogging until they gain tenure, why women tend to eschew legal blogs, what counts as a legal blog, and so on.
Opinions are all over the map. But the conversation is almost always precise, thoughtful, respectful, and responsive: a respite from the screaming and fist-shaking that goes on in the rest of the blogosphere. And no one is charging a dime for it.
Dahlia Lithwick is a senior editor and Supreme Court correspondent for Slate.