The ABA described the Blog this way:

• Law student contributors summarize recent securities opinions while University of Denver law professor J.  Robert Brown writes posts with more analysis about shareholder actions, corporate governance and self-regulatory organizations. Brown will also sometimes detour with a post about law schools or legal scholarship.

The others in the business law category are truly exceptional blogs.  For those interested, you are allowed to register on the ABA site and vote for your favorite blog.  Keep us in mind.

Earlier this year the RTTB was ranked one of the top 25 business law blogs by Lexis Nexis for the second year in a row.

The World Bank then asks whether blogging improves faculty reputation.  Again, the answer is yes.  As the World Bank study notes:  "This evidence is thus consistent with the view that blogging helps build prestige and recognition in the profession, with bloggers being more likely to be admired or respected than other academics of similar (or in many cases better) publication records."  Finally, does blogging affect institutional reputation?  The study indicated that there are "positive spillover effects for the bloggers’ institutions". 

These advantages extend beyond economics and apply with equal authority to law blogs.  I chronicled much of this influence several years ago when I examined the growing influence of law blog.  See Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings.  The data in the paper examined such sources of inluence as the number of law review citations for blog posts and the number of court citations.  Conclurring Opinions put up a post back in 2010 that took a fresh look at law review and court citations for blogs from 2006 to 2010 (although it missed the court citation for this blog) and found, for example, that such sites as FindLaw (618 cites) and The Volokh Conspiracy (402 cites).  The numbers have only continued to increase.  The Race to the Bottom has a far more humble number of citations, somewhere around 30. 

As for influence on policy makers, the benefits of blogging are difficult to prove.  Nonetheless, the dynamics of decision making suggest that in fact they are influential.  Law reviews as a source of influence remain important but if an area is dynamic and undergoing rapid evolution, they will often be too slow to influence the outcome.  Decision makers, therefore, can benefit from quicker but in depth analysis.  Blogs often provide that service.  Moreover, in the realm of legal influence, it is in fact the case that clerks working for judges, including the Supreme Court, read blogs, something litigators already know and use as a mechanism for "back-door, post-argument supplemental briefing."

Moreover, the reality is that the mechanisms for identifying experts among law faculty have changed.  While policy makers can still rely on law school rankings and notoriety from law review articles placed in top journals, the Internet has provided additional mechanisms for identifying those with the requisite expertise or who have written useful papers.  Google searches are one mechanism.  SSRN downloads are another.  Both are influenced by blogging.  

Given these advantages, Kim Krawiec rightfully asks why more faculty do not blog.  There are any number of reasons.  The work load is one.  The lack of credit at law schools (despite the considerable potential for increased institutional notoriety) is another.  There is often some hesitancy about operating on the Internet which is still very much a Hobbesian state of nature, with both high and low quality side by side.  Comments can also provoke unsavory responses, sometimes requiring a thick skin.  But in fact one would assume that with the benefits, blogging would increase.  In fact, the data suggests otherwise.

Individual law blogs continue to disappear.  Larry Ribstein stopped writing for Ideablog after six years (his last post was in 2010) and moved to Truth on the Market.  Law faculty blogs were the rage for awhile but are on the whole suffering from neglect.  For purposes of law school notoriety, few institutions seem to get behind blogging.  The most obvious evidence is the lack of blogs that carry a URL from a law school.  The Harvard Blog on Corporate Governance and Financial Regulation is one exception but also operates on a different model than most blogs. 

One can generally conclude, therefore, that as a matter of opportunity cost, law blogging for most has not overcome the benefits of all other alternatives.  Some of this is the lack of institutional recognition for the activity.  Some, however, arises from the failure to appreciate the benefits that come from blogging and the impact of the Internet on influence.  Finally, even for those aware of the benefits, not everyone wants to actively participate in legal reform or otherwise develop/enhance a nationwide reputation.  

On the one hand, the numbers look favorable.  The number of African Americans and Mexican Americans "have been applying to law schools in relatively constant numbers."  Moreover, quality has improved.  As one report writes:  "These African-American and Mexican-American applicants are doing better than ever on the leading indicators used by law schools to determine admissibility: undergraduate grade point average and LSAT scores." 

These hopeful numbers can be juxtaposed against the growing availability of a legal education.  The number of ABA credited law schools has jumped from 176 in 1992 to 200 in 2008, adding an addtional 3000 spots for incoming students. 

Yet the impact on these groups has not been favorable. 

• The percentage representation of both groups has actually trended downward since 1993.  These groups account for a significantly smaller percentage of the 2008 entering class than the 1993 entering class. Indeed, there was a 7.5% decrease in the proportion of African Americans in the 2008 class as compared with the 1993 class. There was a 11.7% decrease in the proportion of Mexican Americans in the 2008 class as compared with the proportion entering law school 15 years ago.

Indeed, "there are fewer African-American and Mexican-American matriculants in the 2008 class (4,060 combined) than existed in the Fall 1993 class (4,142 combined)."

Board have an obligation to ensure a more diverse collection of directors.  Law schools also have the same responsibility.  As with boards, some of the solution is to use alternative (but high quality) criteria to expand the potential pool of directors. 

Law schools likely must do the same thing. 

But, in fact, as a column in Wired Magazine (The Short and the Long of It, Clive Thompson) discusses, the presence of tweets and other short form methods of communication have caused evolution in the Blogosphere and, to some degree, resulted in greater order to the blogging process. 

The column notes that there remains a craving for more in depth and detailed analysis.  Traditionally, this type of analysis occurred in the hard copy media.  Increasingly, however, it has moved to the Blogosphere. See Jan. 2011 Issue at 40 ("It used to be that only traditional media, like magazines or documentaries or books, delivered the long take.  But now, some of the most in-depth stuff I read comes from academics or businesspeople penning blog essays . . . ").

The result has been a shift in blogging.  As the piece notes:

• Ten years ago, my favorite bloggers wrote middle takes -- a link with acouple of setnences of commentary --  and they'd update a few times a day.  Once Twitter arrived, they began blogging less often but with much longer, more-in-depth essays.

Apparently this view is reflected in the reading tasts of blog post devotees.  Id. ("One survey found that the most poopular blog posts today are the longer ones, 1,600 words on average.").

Certainly, this approach has been the staple of The Race to the Bottom.  When the Blog began back in 2007, the common advise was to write very short posts.  It wasn't all about attention span.  Technology played a role.  Search engine indexing, so the story went, only looked at the title and the first few sentences of a post. 

From the beginning, however, The Race to the Bottom stressed analysis and longer posts (or series of posts) rather than speed, the attribute of many other blogs.  In addition, this Blog sought to post, often in the form of pleadings and other litigation documents, the primary materials that were discussed in the post (they are invariably on the companion web cite, The DU Corporate Governance Site), allowing readers to take the analysis even further.

Short statements for Twitter; in depth analysis to the Blogosphere.  The Race to the Bottom is where it belongs.   

Here is the article:

Local Links: From DU, the Only Student-Faculty Collaborative Legal Blog in the Country

This is part two of our new series featuring blogs by members of the Colorado legal community.

The Race to the Bottom is a faculty-student blog published by University of Denver Law School. As you might recall, several of its bloggers recently attended and covered our annual securities conference. The blog’s faculty sponsor (and frequent contributor), Professor Jay Brown, and its managing editor, student Charles Nichols, recently took some time to talk with us about their blog.

1. Tell us a little about The Race to the Bottom, how it got started, and its purpose.

Two University of Denver Law students and Professor Jay Brown started The Race to the Bottom as a parallel to a law journal on corporate governance in 2007. The blog focuses on corporate governance in the post Sarbanes-Oxley era. The two students, with a number of classmates and a great deal of effort, designed the website, fleshed out the vision for the blog and got the project off the ground.

The Race to the Bottom is now the only student-faculty collaborative legal blog in the nation. Further, the blog is closely followed by both the local and national legal community and has been cited in briefs, law review articles and court opinions. This article (.pdf) will provide a more in-depth look at this question.

2. Who writes for the blog and how are those people selected?

The blog is made up of both student and faculty contributors. Our student contributors are selected through a selective write-on candidacy held every semester at the University of Denver Sturm College of Law. All candidates complete a case analysis and a citation exercise and the Executive Board reviews every packet and anonymously selects the future contributors.

The Race to the Bottom also has faculty contribution from Professor Jay Brown, other DU faculty as well as other faculty throughout the country who are invited to contribute based on their focus on corporate governance issues.

3. You guys manage to really crank out some quality content. How do you coordinate who’s covering what?

We try to make sure contributors are writing on subjects they are interested in as that lends itself to a stronger product. Our student contributors report to one of two senior editors who in turn report to our managing editor and editor in chief. This process allows the editors to get a good understanding of the contributor’s interests, writing level and underlying knowledge and therefore assign posts that align with those interests. As the blog matures, we are beginning to focus certain students writing in specific areas to develop “specialists” and allow our coverage to go into more depth than it otherwise would.

4. What case that you have followed has had the “most read” posts?

At any given time, we focus on two or three major cases. When we do this, we follow every filing, hearing, motion etc. that takes place in that case. Our first, and most widely followed case was (and continues to be) the insider trading case of former Qwest CEO Joseph Nacchio. This case acted as a great springboard for the blog. The close proximity of the hearings allowed us to have contributors attend every day of the trial and provide an in-depth coverage of the legal aspects of the proceedings. This coverage distinguished us since much of the other coverage of the trial was more typical news reporting and we were the main source covering the legal nuance of the case. The Race to the Bottom’s coverage of Mr. Nacchio’s trial helped increase our readership and create a niche in the legal community rather quickly.

Our Nacchio posts can be found here.

5. What has been the blog’s greatest success so far?

From a “most read” perspective, our coverage of the Nacchio case is our greatest success to date. We continue to write on the resentencing aspects of the case and our following of those posts continues to be strong.

That said, on a broader level, being able to grow the blog and improve the quality of our product over the past three years has been a great success. We are proud to have turned what was an idea by a group of students a few years ago into a legal forum that is generating more and more respect on campus and in the legal community. We have a very strong group of student and faculty contributors, both current and past, who have worked very hard to make The Race to the Bottom a success and we are pleased to be making strides towards that goal.



Over the last few years, however, order has begun to overtake the blogosphere.  First, the blogs have largely ceased to be the isolated musings of individual faculty.  One change has been the advent of Empires.  Paul Caron at Cincinnati has run a blog Empire, the Law Professors Blog, with his writers receiving compensation (something discussed in Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings) and coming under a common rubric.  These Blogs remain located on independent servers but have lost their libertarian spirit through common rules that, for example, eschew personal musings. 

In addition, law blogs associated with specific law schools and relying on their servers have become more common.  Some are faculty blogs, advertisements mostly, although others are more substantive.  Chicago is a good example of law school with a successful faculty blog.  Others are substantive blogs, with the Harvard Corporate Governance Blog an example of this category.  Finally, many other successful law blogs have either started as, or have evolved into, a group effort, with the members changing and shifting but providing constant content.  The Conglomerate and Truth on the Market are examples. 

Those individuals who were on the blogosphere at the beginning, starting their own idiosyncratic blog, have begun to die off.   It may be that readers want the benefit of organization.  It may also be that running a blog as an individual is a grinding task of daily posts.

An example of that occurred this week with the announcement by Larry Ribstein that Ideoblog, after six years, would go out of business.  He would instead lend his often weighty voice to Truth on the Market.  In short, he has joined a group effort.  His explanation was that the move "will not only unite me with a great group of market-oriented commentators, but also expand my reach." 

Its always hard to judge the "reach" of a blog but various measurements indicate similar numbers for the two blogs.  On site meter,  Ideoblog averaged somewhere around 375 unique hits a day compared with around 425 at Truth on the Market.   The Justia rankings put Ideoblog at 96 on their all time list and Truth on the Market at 106.  Both apparently have a 6 on the Google rating scale.  Nonetheless, the move allows him to maintain a serious internet presence yet at the same time avoiding the daily responsibilities associated with maintaining a law blog. 

In the corporate governance area, that leaves as entirely solitary affairs only the efforts of Steve Bainbridge.  The Race to the Bottom is a bit of a hybrid, involving contributions by faculty and students.  The students have created an editorial board with student contributors.  Posts are examined for blue book compliance.  For a history of The Race to the Bottom, go here.  Nonetheless, it remains excessively dependent upon a single faculty contributor (although that also appears to be evolving). 

There is little questions that the blogosphere is becoming better organized and less idiosyncratic.  There is certainly something lost in the process.  As Steve Bainbridge notes, these individual voices:  

• tend to be more coherent. They have a real voice rather than a cacophony of noises. I feel a greater degree of personal connection to a sole-authored blog than to a group. The quality of group blogs tends to be uneven.

Organization has its benefits but also its costs.  The demise of Ideoblog is part of that process.  

What happened to these blogs?  As the post notes:  "There are a few on here that are dead for good reason (e.g., the firm no longer exists.) There are a few on here where the attorney moved on to other jobs and left BigLaw behind. And, there are a few that were clearly 'short-term' blogs designed for a specific purpose."

TheRacetotheBottom, fortunately, is not one of them.  It has been operating for more than three years. 

The data does, however, illustrate two important difficulties that accompany efforts to develop a good law blog.  The first is the need for unique content.  To the extent a blog simply repeats what is already in the public domain, there will be few reasons for readers to use it.  Unique content can come in the form of more in depth reasoning or in the posting of materials that are otherwise difficult to acquire.  This Blog, for example, routinely posts briefs from Delaware cases, a resource that is either difficult or expensive to acquire.

Second, a good blog requires a sustained output.  That in turn requires a considerable amount of time and effort, presumably by a lawyer at the firm.  This level of involvement (and loss of billing time) must be weighed against the benefits of an active and widely read blog.  One of the benefits is that a good blog gives the law firm a greater Internet presence.  Given that more and more clients are likely searching for lawyers (and everything else) on the Internet, there may well be a significant business development benefit from a well run blog.

Ultimately, however, the data from 3 Geeks and a Law Blog shows that not all large law firms can master a successful blog.  Size, it appears, is not everything. 

For more on what it takes to develop a good law blog, take a look at Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings.  

More and more, academics seem to be coming around to the view that law blogs have an important role to play.  Some have done so because of the perceived improvement in the dynamics/technology of blogs.  As Orrin Kerr recently noted on the Volokh Conspiracy,

• Searching the web for legal scholarship has become common. Blogs are indexed and available via Google minutes after they are posted. The culture of comment threads has developed more, encouraging more feedback between authors and readers. It has become easier to link posts and hide long text.

Nonetheless, not all law blogs qualify as scholarship, as Steven Bainbridge recently reminded, and not all law blogs are active participants in shaping the law.  So which ones qualify?  One answer requires reference to both demographics and the judicial system. 

First, some of the growing influence of law blogs can be put squarely at the door of demographics.  As a practical matter, those below 40 (which this author is not) are more likely to use the Internet to conduct legal research and search for information. 

Second, given this demographic reality, it would be important to know where younger lawyes have a disproportionate impact on shaping the law.  They are not, on the whole, managing partners at large law firms, general counsels at Fortune 500 companies, or judges sitting on the state or federal bench. 

They are, however, lawclerks to judges.  Despite the existence of permanent clerks and lawclerks who have already practiced, most still come directly from law school.  Lawclerks are likely to be younger and more technologically proficient than the bar as a whole.

They can, as a result, be counted on with some frequency to read law blogs that comment on cases under consideration within their respective chambers.  (The likelihood will no doubt vary depending upon the particular court considering the case, the public profile of the case, and the case's legal complexity).  As they research these cases, either to prepare their judges for oral argument or to draft opinions afterwards, they are likely to want to consider any erudite commentary that sheds light on these cases.

Blogs that focus on cases, therefore, can have an impact on ongoing litigation, even if in a sub silentio fashion.  They can also become part of counsel's strategy in dealing with important cases.  This was suggested in an exchange that I had with a prominent lawyer in Washington DC.  As this lawyer explained:   

• I understand that Supreme Court clerks (and lower court clerks, as well) often check the blogs that cover their cases.  Appellate lawyers are aware of this practice, and, as a result, blogging is sometimes used as a kind of back-door, post-argument supplemental briefing.  In most appellate courts, particularly the Supreme Court, the court will only very rarely allow the filing of a post-argument brief to address an issue that arose during oral argument.  However, since bloggers discuss and comment on the oral argument in prominent cases, and since the clerks (and possibly the Justices themselves) read these posts, the blogosphere can serve as a vehicle to, in effect, continue the oral argument or supplement the briefing.

In other words, contemporaneous commentary on cases can influence the thinking of law clerks and judges.  So can discussions after oral argument, a circumstance facilitated by the quick posting of transcripts by the Supreme Court and the willingness of some circuits to put oral arguments online.  In effect, blogging can be a form of post-oral argument analysis. 

Discussion after oral argument can be particularly important for cases at the Supreme Court if used to address issues left unanswered or partially answered at oral argument.  For cases at the US court of appeals, the identity of the respective panels usually becomes known only just before argument occurs (the DC and 8th Circuit are the exceptions, see Neutral Assignment of Judges at the Court of Appeals).   Blog posts could at that point address concerns or positions of the particular jurists actually deciding the case.  

This suggests that law blogs focussing on cases can have accentuated influence.  This Blog does.  Moreover, as we have seen, TheRacetotheBottom increasingly makes appearances in briefs (for examples, go here and here).  During the Blog's coverage of the trial of Ward Churchill, it was common to enter the courtroom and see the latest posts from TheRacetotheBottom on the computer screens of counsel.

Not all law blogs do this.  Moreover, some that do merely throw off a paragraph or two that is more descriptive than analytical.  In the end, detailed analysis for important cases from those in the academy with deep expertise in the legal matters at issue may be the best way for blogs to play an active role in shaping the direction of the law.  

The Race to the Bottom got a nice mention in this month's edition of the Student Lawyer Magazine, an ABA publication.   As the Student Lawyer describes:   

• The University of Denver Sturm College of Law –based corporate governance blog, The Race to the Bottom ( www.therace tothebottom.org ), has earned its share of respect. It’s cited regularly in other blogs and mainstream media publications regarding shadowy topics in the world of the C-suite and board room, from CEO pay to cooking the books. Several students and their professor, J. Robert Brown, examine corporate America in their blog posts. This summer, the blog was recognized by trade publication Law Week Colorado as Best Law Blog.
  

A post on the decision by Law Week Colorado can be found here.  The Race to the Bottom remains something of a unique model, involving a collaberation of faculty and students.  It is hard work and the recognition is appreciated. 

And, of course, whatever the metric, how does one assess influence?  Particularly in the realm of modestly trafficked blogs (as most law blogs can be characterized), the goal is influence quality rather than quantity (although some law bloggers are paid and this does often depend upon traffic). 

So, we were very pleased, here at The Race to the Bottom, to see that we had achieved a mark of influence.  Law Week Colorado, a legal newspaper, put out an issue titled "The Best of the Best," a paean to "the very best things about living and working in the legal world of Colorado."  The issue included a number of categories and ranked the best based on the consensus of the 400 or so readers who submitted ballots, labeled the People's Court, and the staff of Law Week, labeled Barrister's Best.  

Included among the many categories was the best law blog (see page 16).  The People's Court weighed in on Above the Law, a blog that unabashadly describes itself as a "legal tabloid"  (http://www.abovethelaw.com/).  

The Barrister's Best?  Our very own Race to the Bottom.  As the paper explained:

• Race to the Bottom is a blog written by University of Denver Sturm College of Law students and profs, and it gives you something more substantial to read after you've gotten your daily schadenfreude fix at Above the Law.  Though Race to the Bottom's main focus is corporate governance, few blogs or newspapers have explored the Nacchio and Churchill trials from as many angles.

We don't aspire for these sorts of things but when they happen, we appreciate them.  The students worked particularly hard covering the two trials mentioned above.  Its nice to know that some arbiters of quality and influence noticed.   The University of Denver has posted a short story on the accomplishment. 

With that in mind, we turn to a recent piece in The New Yorker, How David Beats Goliath.  The article indicates, counter intuitively, that David often beats Goliath but mostly when David responds to Goliath with unconventional strategies.  As the article notes:

• David’s victory over Goliath, in the Biblical account, is held to be an anomaly. It was not. Davids win all the time. The political scientist Ivan Arreguín-Toft recently looked at every war fought in the past two hundred years between strong and weak combatants. The Goliaths, he found, won in 71.5 per cent of the cases. That is a remarkable fact. Arreguín-Toft was analyzing conflicts in which one side was at least ten times as powerful—in terms of armed might and population—as its opponent, and even in those lopsided contests the underdog won almost a third of the time. . . . What happened, Arreguín-Toft wondered, when the underdogs likewise acknowledged their weakness and chose an unconventional strategy? He went back and re-analyzed his data. In those cases, David’s winning percentage went from 28.5 to 63.6. When underdogs choose not to play by Goliath’s rules, they win, Arreguín-Toft concluded, “even when everything we think we know about power says they shouldn’t.”

How does this pertain to legal education?  It suggests that law schools wanting to "slay Goliath," which in this post means moving up in the rankings, ought not to invariably play by Goliath's rules.  In other words, law schools need to embark on strategies that are unconventional. 

What might this mean?  There is no easy answer.  In How David Beats Goliath, it meant a basketball coach who used a full court press to cause turn overs and throw off the ability of the superior shooting teams.  Moreover, whatever the "unconventional" idea, once enough schools follow suit, it will become "conventional."

With law schools, there are a number of possible ways to attract positive attention to the institution through unconventional approaches that also benefit students.  Possible examples?

• Law classes in foreign languages.  International law programs have proliferated.  Yet programs that actually teach students to operate in non-English enviornments are almost nil.  Particularly for programs offering law classes in Spanish (the University of Denver has a "Spanish for Lawyers" program), it provides an opportunity to encourage internationalization and to reach out to an under-represented segment of the community (non-native English speakers).  

• Changes to the first year curriculum.  Most law schools teach the first year in a more or less identical fashion.  Contracts, torts, civil procedure, criminal law, property, maybe conlaw, crimpro and sometimes an elective.  Harvard's reforms announced a couple of years ago put a bit more emphasis on international and administrative matters but otherwise didn't tamper much with the model.  What might be done?  How about a first year curriculum that in one semester teaches civil law (torts, contracts, civpro, property and legal writing) and in the second teaches criminal law (crim, constitutional crim pro, criminal procedure, legal writing and a seminar on a crimlaw topic).  Perhaps by clustering the courses, there will be opportunity for common problems and cross learning, increasing retention.

• Increased substantive expertise by allowing a professor with a particular area of expertise to teach the same 20 or 25 students in several classes during the same semester, perhaps providing opportunities for experiential learning.  This could be set up several years in advance, allowing students to plan for the semester and entail rotation of faculty.  The designated faculty member might even teach his/her entire load in one semester, giving students 10-12 hours of the area under study. 

• Becoming the first law school in the country to have tenure track writing faculty for both first year and upper level writing requirements?  Particularly with the upper level writing requirement, schools often allow completion through methods that can sometimes be unrigorous, whether participation on a law review or completion of a seminar paper.  Having students taught entirely by trained writing faculty (for both first year and upper level) would by itself be an unusual step.  Making them all tenure track would be unique.

These are random ideas of varying quality.  There are other methods.  I have written about the use of law blogging by faculty to raise a law school's notoriety.  See Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings.  If anyone else has unconventional ideas, please share them.