Are Modern Bloggers Following in the Footsteps of Publius? (And Other Musings on Blogging by Legal Scholars . . .)

Is legal blogging an antidote to the hyper-scholasticism that sometimes characterizes the legal academy today? Or is it a self-indulgence for legal scholars? It’s hard to know. On the one hand, there is a proud American tradition behind the publication of concise but erudite essays aimed at a broad audience concerning the important legal issues of the day, starting with the Federalist Papers. It’s hard to believe that neglecting that tradition in favor of a cloistered academic existence in which legal scholars write only for each other could be a good thing. On the other hand, even the best legal blogs contain more chaff than wheat. And legal bloggers who offer mostly ill-considered opinions on every topic imaginable may bring disrepute to the legal academy. On the whole, I am inclined to be cautiously optimistic about the potential value of legal blogging. But then I enjoy blogging, so perhaps my judgment on these matters ought not be deferred to too readily. Thomas Jefferson called the collection of essays we now know as the Federalist Papers “the best commentary on the principles of government, which ever was written.” And if the judgment of history counts for anything, he may not have been too far off the mark. In colleges and universities all over the world, the Federalist Papers have been read and discussed many times over, sometimes alone and sometimes in conjunction with the Anti-Federalist Papers. Somebody obviously thinks highly of them. * Professor of Law, University of San Diego School of Law. Ms. Heriot’s comments on law, politics, and culture, along with those of her USD colleagues, Mike Rappaport, Maimon Schwarzschild, and Tom Smith, are available at The Right Coast (http://rightcoast.typepad.com/ rightcoast/). Thanks go to Paul Caron for making this conference on blogging by legal scholars possible. 1. Letter from Thomas Jefferson to James Madison (Nov. 18, 1788) (on file with the Library of Congress). 2. ALEXANDER HAMILTON, JOHN JAY & JAMES MADISON, THE FEDERALIST (George W. Carey & James McClellan eds., Gideon 2001). 3. See THE ESSENTIAL FEDERALIST AND ANTI-FEDERALIST PAPERS (David Wootton ed. 2003). Washington University Open Scholarship p 1113 Heriot book pages.doc9/20/2007 1114 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 84:1113 Part of the Federalist Papers’ longevity is just luck. If the proposed Constitution had been rejected, it is unlikely that they would ever have been collected into a single volume. And if the Constitution had later failed, they would likely have sunk into obscurity. Insofar as they have had staying power, it is because the Constitution has had staying power. But luck was not the only factor working in the Federalist Papers’ favor. If they didn’t contain useful insights about the nature of man and the governments men create, they would have been forgotten years ago. The Constitution’s success by no means guaranteed their fame. When one is looking at a heavy leather-bound edition of the Federalist Papers, it’s easy to lose sight of their humble origins. These essays didn’t start off life with all that gold tooling. They were written for various newspapers in New York and handed out on street corners. No doubt more than one “original edition” had beer spilled or mustard smeared on it before the sun had set that evening. Most of the rest made it to the garbage heap by the end of the week. The authors, moreover, weren’t grey-haired philosophers writing for the ages. They were lawyers—thirty-year-old Alexander Hamilton, thirty-six-year-old James Madison, and their “elder statesman” forty-two-year-old John Jay—with a short-term goal in mind: Get the proposed Constitution ratified in New York. Do it by responding to the Anti-Federalist arguments that seem to be getting the most traction on the street. And be quick about it, because, like it or not, minds are being made up every day, and it will be impossible to un-make many of those minds once they are made. Like most political tracts, the Federalist Papers occasionally mischaracterize the arguments of their opponents or make arguments that, upon reflection, few would find particularly convincing. But that is forgivable. The authors were working at a furious pace under a great deal of pressure. It’s not surprising to find that some of the essays are better than others or that even the better essays are less than perfect. What is surprising is how, despite these faults, the authors aimed for, and for the most part achieved, a level of sophistication that would be unimaginable in the mainstream media today. In among the saw mill advertisements and shipping news that filled the New York newspapers of the day were some remarkably learned and insightful essays that, among other things, distilled and applied for a popular audience much of the