By Lori Atherton
Listen to an audio recording of the panel discussion.
Do legal blogs add transparency to law firm operations? How does blogging change legal discourse? A trio of popular bloggers, including Above the Law Managing Editor David Lat, explored these questions and more during a February 1 panel discussion sponsored by the Federalist Society.
Lat, who was joined by Michigan Law Prof. Len Niehoff, author of the Random Verdicts blog, and Michigan Law Assistant Dean Sarah Zearfoss, who pens the A2Z blog, said blogs do add transparency to law firms, because they "shed light on what is going on in very large, powerful, and lucrative law firms."
Legal blogs, Lat noted, accelerate the rate at which changes or trends "ripple through the profession." If Above the Law reports on spring bonuses within a particular law firm, for instance, Lat said other firms may determine that it's beneficial for them to reveal similar information, so as to appear that they are keeping pace with their peers.
Blogs also give firm employees greater leverage with management. "One way of thinking about blogging and its influence on the legal profession is that it's a kind of soft regulation, or nongovernmental regulation of an industry," Lat said. "By reporting on compensation and other matters within law firms, Above the Law helps to promote a healthy fluidity in the marketplace and causes firms to be the best work places they can be."
Dean Zearfoss noted that the accelerated response blogs engender may not always be a benefit. "When I think about law firms competing with bonuses, that may not be the smart thing to do for that firm in terms of management," she said. "Maybe they would be better off not giving bonuses, or hiring more people. The pressure to react quickly can be a problem."
Prof. Niehoff, who teaches courses in appellate advocacy, civil procedure, ethics, evidence, and media law, said blogs are helping to change and shape legal discourse. Topics previously explored in law review articles are now being discussed on legal blogs, including the U.S. Supreme Court's SCOTUSblog, resulting in a "much quicker" exchange of ideas.
"Not everything is worth 50 pages in a law review," Prof. Niehoff said. "Ideas can be expressed in a blog without exhaustive treatment. Blogging is changing the nature of the conversation about legal doctrine and legal theory and doing it quickly and significantly."
Blogging and other forms of social media are also challenging how trials are conducted, Prof. Niehoff noted. Both lawyers and judges can discover blogs written by witnesses, opposing counsel, and other parties involved in the case. And despite instructions not to conduct their own research, jurors are visiting legal blogs as well, what Prof. Niehoff calls the "CSI effect."
"Our sense of what a fair trial is has largely been conducted with the understanding that we don't know a lot of what goes on outside the courtroom, and we've contented ourselves with a kind of blissful ignorance around that issue," he said. "And now we know a lot more about what lawyers do, what jurors do, what kinds of things they talk about, and we do not have a jurisprudence that is up to addressing that."
Referencing her admissions blog A2Z, Dean Zearfoss said that while having a blog "has had a great effect on admissions" and she likes the transparency it offers, the concerns about reactivity pertain just as much in this arena as in law firm management.
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