Legal commentary has gone through changes in the past twenty years that are comparable to what has happened to all commentary, in this country and throughout the world. Here are my impressions.
Gatekeepers and Scriveners
Twenty years ago, if I wanted to publish an article, I had a handful of possible outlets owned by various media companies and bar associations. (The New York Law Journal was a favorite.) Let’s call them “gatekeepers.” (Law review articles and book-length commentary are beyond the scope of this post.) Because relatively few slots were available, the process was relatively formal, and generally those writing the articles were relatively established and were interested in attracting new business—let’s call them “scriveners.” That’s what allowed the New York Law Journal to charge authors for a PDF of their article—in 2015, up to US$665.
Although gatekeepers no longer hold sway, there are still plenty of them. They publish some great articles, but relying on gatekeepers poses three problems. First, it limits who can participate in the discussion. Second, you can’t count on gatekeepers having access to the expertise that would be required for them to vouch for every article they publish. And third, gatekeepers might have an agenda of their own. I encountered that recently when I submitted my article on the ambiguous material (see this blog post) to a journal run by an organization of lawyers. I was bemused to have them say that although they found it convincing, I would have to revise the article to cite others who agree with my thesis. That’s a classic gatekeeper move—We’ll publish you, as long as you follow the herd.
The center of gravity of legal commentary has moved away from gatekeepers, in stages. In the 2000s, it moved to blogs. A unique feature of blogs is that they give commentators their own platform. For a few years, blogging was all the rage, and blog commenting was lively.
But care and feeding of a quality blog is demanding, so blogging was never sustainable as a medium for the masses. Blogs live on, although they might go by a different name, such as “newsletter.” Meanwhile, the masses have moved on.
Mass Social Media and Enthusiasts
For most, legal commentary now takes place on LinkedIn and, in a supporting role, Twitter. They offer two advantages. First, you can chime in whenever you want—you’re not responsible for keeping a site viable. And second, whatever you say has a better chance of being seen by the world at large, instead of just visitors to a given blog.
So now, everyone is a commentator and everyone has a small megaphone, so scriveners are vastly outnumbered by what I’ll call “enthusiasts.”
But on LinkedIn, the result has been cacophony—a source of copious information and misinformation, in posts and in comments. If you’re looking for guidance, it can be impossible to make sense of it all.
Influencers and Cheerleaders
A recent development is the rise of what I think of as—to use a term from society at large—the contracts “influencer.” On LinkedIn, contracts influencers cultivate a reputation for contracts expertise, but they seem different from scriveners, in that they appear to be doing it to develop a community instead of looking for corporate clients. They’re doing it for clicks.
A while ago I had an encounter with a LinkedIn influencer. In a comment to one of their posts—in which I took pains to be polite—I said they were mistaken on a given point. They blocked me, explaining that they didn’t want me harshing on the community experience by introducing notions of right and wrong, reasonable and unreasonable. That’s consistent with a cheerleading urge that’s on display on LinkedIn, with building up your cohort taking priority over notions of progress. Me, I’m more interested in progress.
Another recent arrival on the scene is what I think of as clearinghouses for contracts commentary. That’s where an organization invites people to offer their commentary—whether in the form of posts, videos, or podcasts—on the clearinghouse.
By offering their platform, clearinghouses aim to turn enthusiasts into something resembling scriveners. But that comes with bigger quality-control issues that those facing gatekeepers—many of those promoted by clearinghouses appear to have limited experience of commentary.
So it’s routine for me to spot dubious analysis in clearinghouse commentary. When you point this out, clearinghouses might thank you, but I don’t know that they’re in a position to do anything about it: they don’t have the time and expertise to vet everything they disseminate. And it’s easier to not care as much when you’re publishing on a blog or on LinkedIn.
Another clearinghouse response is to claim that instead of offering misinformation, they’re enhancing the conversation by showcasing experts with alternative viewpoints. That’s a standard rationale offered by media organizations that don’t want to be held responsible for what their guests say. But progress in contracts is unlikely to come from describing as experts people with limited credentials and washing your hands of quality control.
There has never been a golden age of legal commentary. Instead, each phase has presented its own challenges. Whatever the fashion, if you’re serious in your inquiries, you want expertise. And you face the challenge of distinguishing expertise from blather. The paradox is that to be certain of identifying expertise, you need the very expertise you’re seeking.
To be an informed consumer of legal commentary, I suggest you look for proxies for expertise. How much has a commentator written? How varied is their output? What is their reputation? Do they consult other scholarship and commentary? Have they made progress over time in understanding a given issue? Do they acknowledge their mistakes? How insightful are their comments on social media? Once you find someone you’re willing to accept as an expert, do yourself a favor and tune out the chatter.
To make it easier for you all to assess what I have to offer, I do my best to tell you about myself and my work. In fact, I’ve written about myself often enough that I don’t think there would be much point in my steering you to anything in particular—it ought to be easy enough for you to get a read of me. If you think that’s unrealistic, let me know.