Steve Bainbridge (UCLA law) reports remarks by Mark Sargent, the distinguished and successful Dean of Villanova Law School, here that suggest a case for giving scholarly credit for blogging by law professors.
Law faculty are typically evaluated along three dimensions: scholarly publication, teaching, and "service" to both the institution and the community. It seems to me clear that there is a case for giving "service" credit for some kinds of blogging--Solum's Legal Theory Blog is the obvious, maybe preeminent, example (von Fintel's Semantic etc. blog is another). By collecting links to articles on-line, providing a legal theory calendar, and so on, Solum performs a valuable service for the academic community in law. So at a minimum this is an example of a blog that helps fulfill the "service" obligations of law faculty.
But Dean Sargent suggests that blogging might, in some cases, count as "scholarship," which is typically the most important factor in how law faculty are evaluated (and, needless to say, compensated). I agree that, in principle, blogging might so qualify, though there are few cases to date that, it seems to me, would qualify. But let's review some of the issues here.
(1) The main obstacle to giving scholarly credit for work done on blogs in most disciplines is largely (but not entirely) absent in law: namely, that blogging is not subject to peer review (which is one reason most of it, of course, is awful). But in law, most publications are not subject to peer review either, since most--not all--publications by law professors are in student-edited law reviews. Review by students is, on average, better than no review at all, but it is not peer-review, which is one reason why the interdisciplinary turn in legal education has led to a proliferation of faculty-edited, peer-reviewed journals in law and economics, law and philosophy, law and the social sciences, and so on. (Very little serious work in law and philosophy, for example, appears any longer in student-edited law reviews, other than symposia issues or as commissioned pieces; important articles in law and philosophy now appear in faculty-edited journals like Oxford Journal of Legal Studies, Ethics, Legal Theory, Law and Philosophy, Canadian Journal of Law & Jurisprudence, and so on. The change is less dramatic in other interdisciplinary areas, though my non-expert's impression is that law and economics, at least, is moving in the same direction.) So the absence of a serious peer-review norm in law means that, in principle, scholarly blogging ought to count as much as scholarly publishing in the Harvard Law Review. (Dean Sargent suggests there is a kind of peer-review mechanism at work in the blogosphere, namely, that if blogposts "are at all interesting, they are immediately seized upon, dissected and assessed. That process gives an evaluator a sense of the quality of the blogger's thinking. As a reader, I'm impressed when a blogger is taken seriously by serious people." The problems with these proxies for peer evaluation, however, are twofold: first, the number of "serious" evaluators in any given area of legal scholarship who are blogging is very, very small (and in the law blogosphere, heavily skewed in one political direction)--in most areas of legal scholarship, there is no one blogging, and in others, there are perhaps one or two whose opinion one would actually seek in a professional review context; and second, my overriding impression is that blogposts are often "seized upon, dissected and assessed" for reasons unrelated to their quality or intellectual content. This second problem is obviously related to the first.)
(2) Dean Sargent suggests "that legal scholars' ability to contibute to and advance scholarly debates through the blogosphere is real, despite the relative brevity of most posts. The blogosphere allows for wide, rapid and highly interactive dissemination of views in a way that is unique. A faculty member who is blogging in a serious way thus would seem to me to be engaged in scholarship." The question is how any of this is different from engaging in scholarly discussion with colleagues or participating on e-mail listserves with other professors in one's field? All these activities "contribute to and advance scholarly debates" and listserves are certainly "wide, rapid and highly interactive." So something more is needed, as Dean Sargent goes on to note:
"what I mean is thoughtful and carefully reasoned commentary such as Larry Solum's legal theory blog, Punishment Theory, Volokh on constitutional law, you on law, economics or legal theory and so on."
Now Solum's blog is unusual in that he actually posts fairly lengthy arguments on substantive theoretical and doctrinal points. (I confess I can not get motivated to do that, because posting things on blogs seems so ephemeral, by comparison to books and articles: but perhaps the technology, and people's growing comfort level with it, will change all that.) And Solum's useful Legal Theory Lexicon should certainly count in the way that faculty get credit for producing student texts in various fields.
I'm skeptical, however, about Dean Sargent's other examples (and agnostic on Bainbridge, since I don't follow his corporate law postings, though I'm happy to give "service" credit for his wine postings!). I would be very surprised if Volokh regarded his generally informative, brief comments on current cases as scholarship; I agree Volokh deserves "service" credit, because he (generally) helps educate the public about legal issues within his areas of expertise. But it's not scholarship. "Punishment Theory," at least to date, is more like scholarly discussion on a listserve, and unless we're prepared to treat that as scholarship too, I couldn't imagine a Dean giving scholarly credit for engaging in that kind of discussion.
(3) Unrelated to the question of whether blogging is scholarship, Dean Sargent raises anohter interesting issue; he notes: "I'm always looking for means of institutional self-aggrandizement. Having a really good (ie serious) blogger at my law school who is read widely and appreciated by other legal academics would bring us much appreciated recognition." Perhaps. It does depend on who is reading the blogs in the first place, and what *they* think of them. The overtly political nature of so many blogs, even some of the "serious" ones, may bring unwanted recognition in some cases. But time will tell, I suppose.