Avoid debate. Build useful stuff.

Earlier this summer, Legal Evolution applied to the Library of Congress for an International Standard Serial Number, or ISSN.  A few weeks ago, we received our official approval. Legal Evolution is ISSN 2769-6161.  You can look us up, along with other publications, at the ISSN Portal.

Most readers have little familiarity with ISSN, primarily because it operates in the background. Its purpose is to track specific titles of ongoing or serialized publications. In essence, it’s part of the inventory control system for the world’s knowledge.  Historically, knowledge has been stored in libraries.  But nowadays, an ever-growing proportion is stored in the Cloud.

In the case of Legal Evolution, the reason to get an ISSN was less about being tracked by libraries and more about documenting our status as knowledge, on par with materials in journals, magazines, newspapers, and other periodicals.  Indeed, it was a small step in a subtle, low-grade turf battle that is going to take years to complete.  Fortunately, I am well-positioned to participate in this battle. And it’s near-certain that my side (our side) is going to win.  This is because accessible online content has become an organic part of how knowledge workers gather and consume information, solve problems, and build their professionals communities.

What turf is being contested?

The subtle, low-grade turf battle is taking place inside universities and centers on the question, “Do blog posts count as research, publications, or scholarship?”

At present, the answer is “no,” albeit deans and other university officials are always happy when faculty work, in whatever its form or medium, helps build the school’s or university’s reputation as a place of serious ideas and real-world impact.

This is not a question that can be fruitfully resolved through debate, in part because “blog” is an unstable category that is in the process of fracturing into several different things that vary by value and impact. Thus, “do blogs count” may turn out to be the wrong question.

Categories of merit get created when useful things don’t fit into the established boxes. Professional groups move slowly because change disrupts systems of hierarchy.  This conservativism is not inherently bad, as most people and institutions want a relatively stable set of rules as they make investments of time and other scarce resources.  Yet, rules of categorization and merit necessarily evolve over time. This is because they risk their own legitimacy when they get too far out of step with the broader world.

Thus, if you want to change “what counts,” it’s likely more effective to build something useful (i.e., something that needs to be categorized) rather than debate your colleagues on a more accurate or precise system of merit.

Broad readership of serious people

If you step back and look around, it is surprising how many blogs have grown into something that cannot be dismissed as a blog.

A good example is Lawfare, a highly influential publication on National Security founded in 2010 by Benjamin Wittes (Brookings), Robert Chesney (Texas Law), and Jack Goldsmith (Harvard Law).  When it launched, Lawfare explicitly designated itself a blog. In Lawfare’s very first post, Wittes wrote:

Welcome to Lawfare, a new blog by Robert Chesney, Jack Goldsmith, and myself. … We mean to devote this blog to that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions. We will … construe this subject broadly to include subjects as far-flung as cybersecurity, Guantánamo habeas litigation, targeted killing, biosecurity, universal jurisdiction, the Alien Tort Statute, the state secrets privilege and countless other related and not-so-related matters. …. Our purpose in creating this blog is to create a collective outlet for shorter writing that is more responsive to the ongoing events.  Wittes, “Welcome to Lawfare,” Sept 1, 2010.

Since its launch, and particularly during the Trump years, Lawfare exploded in both readership and influence, eventually moving into podcasts, live events, and formal affiliation with the Brookings Institution.  Its masthead is populated with a large number of law professors, law firm partners, think tank fellows, law students, and graduate students.  Lawfare is now owned by the Lawfare Institute, a 501(c)(3) nonprofit with over $1 million per year in annual revenue.  See Lawfare Institute 2019 Form 990.

According to Alexa, Lawfare (www.lawfareblog.com) is ranked #106,618 in global internet traffic and engagement.  As a point of comparison, the Harvard Law Review (www.harvardlawreview.org) is ranked #392,545.

Likely in the minds of most academics, Lawfare has become something more than a blog.  Yet, we don’t yet have a label for it.  Is Lawfare part of the project of knowledge creation?  Absolutely.  Does it have an ISSN?  Not yet.

Another noteworthy example is ScotusBlog (www.scotusblog.com), which provides detailed coverage of the U.S. Supreme Court.  Founded in 2002 by Tom Goldstein and Amy Howe, ScotusBlog has won numerous industry accolades, including a Peabody Award for excellence in electronic media, a National Press Club’s Breaking News Award, and the American Gavel Award for Distinguished Reporting on the Judiciary.  ScotusBlog’s editorial staff includes law firm partners, law professors, and law students.  Its Alexis rank is #95,515.  As a point of comparison, the ABA Journal (www.abajournal.com), which was founded in 1915, is ranked #76,091.

Is ScotusBlog part of the project of knowledge creation?  Absolutely.  Does it have an ISSN?  Not yet.

Old systems are breaking down

Lawfare’s or ScotusBlog’s value, viability, and legitimacy do not depend upon getting an ISSN.  But libraries and universities are in the knowledge business and thus need systems of tracking and categorization that reasonably correspond to how the world operates.

Nearly 15 years ago, the Library of Congress spotted this issue and made the call that blogs, in many circumstances, meet the standard for being a serial publication and thus can be assigned an ISSN. See Matt Raymond, “Is Blogging Serializing,” Library of Congress Blog, Apr 27, 2007; see also ISSN for Electronic Media (providing specific criteria).  Not surprisingly, the Library of Congress Blog has an ISSN, which is prominently displayed on its homepage.

That said, in terms of tracking and categorization, we are in a period of instability and change.

One reason is that generators of content, through WordPress, Typepad, Blogger, Wix, Weebly, Lexblog, Wordable, and countless other platforms and software, no longer have to rely upon publishers and libraries to print and distribute what they produce.  In years past, if you made it through this gauntlet, your output counted as knowledge.

Yet, the lack of institutional gatekeeping is not the only issue. It turns out that online publication has enormous advantages for readers, such as:

  • discoverable via Google
  • shorter and more targeted content than academic journals
  • longer and more in-depth analysis that news outlets and trade press
  • the ability to engage with issues in real-time
  • highly accessible (on your phone right now).

These are ideal features for busy, highly specialized knowledge workers who want timely information connected to their industry or profession.  This is why publications technically classified as blogs are becoming more important to professional discourse, slowly eroding away some of the influence and gravitas of traditional print journals.

Judge Harry Edwards

Nearly 30 years ago, Judge Harry Edwards of the US Court of Appeals for the DC Circuit, wrote a series of high-profile law review articles that lambasted the legal academy for being disconnected and out of touch with the world of practice. See Harry T. Edwards, “The Growing Disjunction Between Legal Education and the Legal Profession,” 91 Mich. L. Rev. 34 (1992); Harry T. Edwards, Symposium, “Another ‘Postscript’ to ‘the Growing Disjunction Between Legal Education and the Legal Profession,” 69 Wash. L. Rev. 561 (1994).

Edward’s critique is less salient today, largely because there are now online communities that appeal to a subset of professors, practicing lawyers, and other legal professionals. Legal Evolution is proud to be a part of this movement.

To boil things down, relevance is what matters.  If a broad readership of serious people values something, systems of tracking and categorizing knowledge will eventually catch up.

Why did Legal Evolution get an ISSN?

Answer: To provide a slight but meaningful nudge to professional norms.

In the spring of 2017, when I shut down The Legal Whiteboard and launched Legal Evolution, I was, in my own mind, shutting down a blog and creating a new online publication focused on applied research in the legal industry. See Bill Henderson, “Legal Whiteboard Ceasing Publication,” Legal Whiteboard, Apr 17, 2017 (“I am shutting down The Legal Whiteboard so I can make a more ambitious investment in online publishing.”); Post 001 (noting that Legal Evolution is “an online publication that curates and compiles examples of successful innovation within the legal industry” and is “an experiment in applied research”).

For most readers, however, both publications were blogs.  Nothing I could say or write was going to change that.

For the last 4.5 years, I’ve focused on making Legal Evolution something useful and relevant to a professional community—lawyers, law professors, allied professionals, regulators, law students—confronting the need for legal industry innovation.  And every year, in my annual report to my Dean, under the category of research, I summarize the progress and accomplishments of Legal Evolution (growth in subscribers, geographic reach, affiliations of readers, diversity of content, various Google analytics, etc.). Further, it’s not a garnish to other “more serious” research; Legal Evolution is the main dish.

However risky this may have been in 2017, it is less so now.  In my 2021 report, along with strong metrics of growth and relevance, I’ll share Legal Evolution’s ISSN.

Changing what counts

At least in a law school, the question of “what counts” is relevant at three points in time:  T1 hiring, T2 tenure, and T3 merit raises and/or lateral offers.

At T1 or T2, a junior academic is generally being measured by standards and metrics set by their tenured colleagues.  Thus, T1 or T2 is not a good time to contest what counts.

That said, once you are on the other side of the tenure decision, a professor is substantially free to focus on what they think is important.  The only risk you are running is that your view of what counts, or should count, could negatively impact future merit raises or reduce your ability to lateral to another institution. For some academics, that’s enough to chill risk-taking. For others, it’s a manageable constraint.

In my view, the most effective way to influence professional norms and hierarchy—i.e. to change what counts—is to use your freedom at T3 to create something that is valued by an internal or external constituency.  Rather than face embarrassment or lose financial support, the lines for what counts will get slightly redrawn, redounding to the benefit of those at T1 and T2.

Maybe this is how it should be.

To the extent this post touches off a debate on whether blogging should count as research or scholarship, my only comment is that Legal Evolution is not a blog.  We are topically focused, follow a regular publication schedule (see Post 201), adhere to style guidelines, and have an ISSN.