We have our first confirmed federal Twitter judge, Judge Don Willett of the U.S. Court of Appeals for the 5th Circuit, a Baylor University alumnus who has more recently served on the Texas Supreme Court. More than 500 legal scholars both young and old, as well as sophisticated practitioners, use Twitter to comment, analyze and argue. From a practical perspective, legal Twitter is thriving.
But is legal Twitter a good thing? The question has been bouncing around on (surprise) Twitter — but without (surprise) any very sustained engagement.
This matters because law professors serve a public function: They work out the meaning of the law before it goes to the courts and they explain law to the public. If they’re doing a bad job, the legal system suffers.
As for whether that analysis should be happening on Twitter, the nature of the debate helps clarify the answer. Twitter is a great way to connect people to longer forms of reasoned argument. But even the extended format of 280 characters isn’t a satisfying or enlightening way to engage in legal debate.
Twitter lends itself to compressed and judgmental writing on the order of “X is right” or “Y is wrong.” That’s the beginning of a legal discussion but by no means the meat of it. Zingers work; nuance doesn’t. And legal scholarship is nothing without nuance.
What’s more, Twitter isn’t really democratizing or promoting legal discourse that would otherwise occur invisibly among a narrow group. Many legal tweets that attempt complexity end up being incomprehensible, even to experts.
Fooling with Twitter
Let me be clear that I’m not complaining about Twitter in general. I myself use it more than any other social media outlet, including to distribute my Bloomberg View columns. That may not be ideal Twitter behavior, but it has always seemed to me less intrusive than emailing all my columns to a mailing list.
Nor do I think law professors should be subject to some special norms or duties on Twitter. We’re no better or worse than anyone else, academics or otherwise. The general realities of the platform are good enough to keep us honest: What you write on Twitter you write for everyone to see, and if you make a fool of yourself, everyone will know that, too.
What worries me is the nature of the legal debates that arise on Twitter with increasing frequency: They’re being distorted or degraded by the medium and its limits.
It’s not who’s talking that is the problem. Most of the debates I have followed involve people who could genuinely be categorized as legal experts. Their fund of knowledge is broad and impressive. And they are opinionated — the way most good lawyers are.
All this should be a perfect opportunity for meaningful interaction. Yet somehow, it isn’t, at least not compared with the modes of communication that prevailed in the recent past.
Two decades ago, large amounts of quasi-formal expert debate over legal issues took place on message boards and listservs. Those had the advantage of allowing extensive interaction but were of limited accessibility beyond scholars.
Then came legal blogs (horrendously dubbed blawgs), for both law professors and legal experts more generally. Those blogs were controversial among professors 15 years ago. But today I think it can be squarely said that they are a nearly unmitigated good.
Blogging on the law
To give just a few examples, Balkinization, one of the first to catch on, named eponymously for Yale law professor Jack Balkin, is a terrific venue for serious constitutional discussion. Lawfare, begun by my Harvard colleague Jack Goldsmith with Benjamin Wittes of the Brookings Institution, has transcended blog status and become the go-to publication for national security law matters and beyond. PrawfsBlawg highlights the ideas of young and young-ish academics. Scotusblog is a professional necessity for Supreme Court scholars and practitioners. Above the Law shows the lighter side of the law but adds heavy content when appropriate, as in founder David Lat’s deep and urgent coverage of the investigation of the terrible murder of law professor Dan Markel.
These and many other legal blogs invite discussion that can range from generally interesting to highly technical. People post and counter-post and engage in serious discussion and exchange. For the most part, the blogs supplement law reviews, where articles can run to what in other fields would be considered the length of a short book. Using the blogs effectively has become a good way to carve out policy positions on important legal issues and to gain a broader audience for academic work.
In contrast to the legal blogs, Twitter doesn’t allow for much subtlety in expressing legal ideas — including complex ones. When I receive replies to posting that I have made on Twitter, sometimes I can’t fully follow the counterarguments being made. I do my best to reply — but I struggle with the realization that I frequently sound like an idiot while doing so.
It should be obvious that Twitter isn’t good for everything. You wouldn’t use Twitter to explicate poems or write love letters, at least not well. Add legal argument to the list.