The Volokh Question: Why Did You Stop?

One of the foremost law blogs on the interwebz, the Volokh Conspiracy, is now behind the Washington Post paywall.  We knew it was coming, so it’s not quite a surprise, but now that it’s happened, a pall is over the blawgosphere.  If that’s not bad enough, Radley Balko, one time Agitator who went legit, will be paywalled as well, but that’s another story.

Sure, the paywall is filled with holes, and VC posts are still available by RSS feed, but that kinda misses the point.  The Volokh Conspiracy was once a blog that offered some brilliant content, followed up by the mother lode of thoughtful commentary.  The commentariot there has taken a huge nose-dive into the toilet, and the content has devolved to posts by the principles of embarrassingly limited depth or flagrant advocacy from the likes of Stewart Baker and Paul Cassell.

On twitter, Orin Kerr asked a question, and since I like Orin very much, and appreciate all I’ve learned from him, I want to respond.

Kerr Twit

While it’s untrue to say I stopped reading, as I continue to read via RSS feed, it hasn’t been the same and I struggled to find an explanation. Orin solved the problem in some follow-up twits:

The goal. Forgive me for digressing, but my thoughts are best expressed with some context.  While VC historically highlighted legal scholarship from a somewhat conservative libertarian perspective, it did so with a touch of realism, in connection to real world events, that made it relevant to what practicing lawyers do, as well as judges who decide such matters.  VC was the nexus between theory and practice.

SJ is written from the criminal defense lawyer perspective, which meant that it tended to be too rough and vulgar for academics. From my perspective, the critical audience was fellow CDLs; that others, from lawprofs to civil lawyers to non-lawyers, read here didn’t really matter.  To the extent I was concerned about other people’s views, it was the views of my colleagues, my brethren.

That VC has abandoned its effort to connect academic theory, even with its libertarian tilt, with real world practice, and instead sees its future as persuading the groundlings to embrace its theories, makes no sense to me at all.

Does that mean the ridiculous drivel dished out by Paul Cassell will be the norm?  Does that mean Eugene will no longer offer First Amendment analysis of any depth?  Does that mean Orin will only use small words and abandon trying to explain the mosaic theory?

I admired VC.  Not that I always agreed with it, but that has never been the measure of anything.  If blawgs offer nothing more than a tepid echo chamber, there really isn’t much of a reason to exist.  They should challenge, illuminate, piss off readers.  I know, you didn’t realize that. You thought this was all about you, your entertainment and a tummy rub that someone out there agrees that your thoughts are brilliant.

Orin Kerr hasn’t posted much lately.  I miss his posts.  He often brought a dimension to a legal issue that made me think, or rethink, my position.  At the very least, he made me think about why he was so wrong on an issue.  I like thinking. Your mileage may vary.

So now VC no longer seeks to impact legal thought, but rather political thought of lay readers?  That’s not really of much interest to me.  While I may not be the “law nerd” Orin thought he was writing for before, I am also not particularly political, failing to adhere to any ideology sufficiently to be asked to play on anyone’s team.

I will keep VC on my RSS feed, and skim the headlines as I always have.  But as a criminal defense lawyer, and a guy who appreciates ideas that are smarter than mine, I suspect that the VC that has long been a primary source of fodder for my thinking is now history.

Best of luck, Eugene, Orin, Ilya, Jonathan, David, Will, Sasha and the others.  I hope you get out of this “partnership” whatever it is you seek, whether it’s money or eyeballs or the ability to shape public opinion.  But practicing lawyers, grunts in the trenches like me, will be poorer for this move.  I’m sorry to see this happen, and will miss the old VC that has made the blawgosphere more valuable to me.

20 thoughts on “The Volokh Question: Why Did You Stop?

  1. Vin

    The best part about reading your blog is that you don’t write it for people like me. I hope you never do. I would hate having my ignorance catered to. Let there never be a sufficient amount of money to make you nice. And I mean that in the nicest way possible.

    1. SHG Post author

      Let there never be a sufficient amount of money to make you nice.

      Let me be tested. I appreciate that, Vin.

  2. JLS

    Radley Balko needed…desperately needed to reach a larger and more influential readership. Part of the reason we have evolved into a police state is because most people simply have no clue as to what is happening on a daily basis in this country. I used to read his old blog, what he used to refer to as an “agitatortot” and when he went over the HuffPo he lost all the old commentors that I had learned so much from reading for a couple of years. A few of the old ones have come back since he’s been at WaPo but not many. The tradeoff though is that he’s no longer preaching to the choir and is reaching people that would never have heard of the Kelly Thomas murder or the assett forfieture racket.

    Volokh was too technical to ever be for the general public so I’m not sure the same tradeoff applies in that case. Maybe it would have been better to remain as it was.

    1. SHG Post author

      I’m not at all sure that Radley reaches an audience who doesn’t know about such things. It’s just as likely that he reaches a bigger choir. It’s not about Radley, but people read things that confirm their bias or to hate it for being WRONG!!! It’s just what people do.

      Edit: It occurs to me that there is one significant distinction here. The VC crew gets their paychecks from law schools, while Radley writes for a living, and now works for WaPo. While it may look the same from the outside, can’t blame a guy for earning a living.

      1. Peter Orlowicz

        I can say with certainty that Radley’s writing reached at least one skeptic who joined the ranks of the converted. I had a very different perspective on things after finishing Rise of the Warrior Cop; in fact, I’m probably due for a re-read already. I wish there were more of us willing to listen outside our echo chambers, but I don’t have any idea how to fix that particular problem, other than to try and lead by example.

          1. Peter Orlowicz

            To be honest, I probably wouldn’t have picked up the book if I hadn’t run across his column first; it was reading his column (when I’d never seen his earlier stuff at The Agitator) that made me want to read the book. As I said before, though, results may not be typical, your mileage may vary, etc.

            1. SHG Post author

              That may be, but his book was a seminal work that has, and will (hopefully), transcend his daily work. Warrior cop was that important.

  3. Cristian

    I wonder if this larger political commentariat is the reason Volokh offered such an uncharacteristically tepid analysis of the NYPD back-turning incident.

    I was hoping for him to come out with guns blazing. Or at least to go through a thorough ‘Garcetti’ analysis and leave us all to draw our own conclusions. He did neither.

    1. SHG Post author

      I was shocked and deeply disappointed by that. It was a moment where Eugene could have really made a difference, and with some depth would have touched on cases like the 2d Circuit’s Pappas v. Guiliani. Instead, he punted. It was a shame.

      Edit: If occurs to me that it might have unfolded with Jacob Gershman at the WSJ Law Blog sending Eugene an email asking for a comment. Eugene, not having much background in the specifics of police and 1st A, punted rather than decline the opportunity to comment and pass up getting his name in the WSJ as the “expert.” And what he put up at VC was his response to Jacob. I hope this wasn’t the case, but it seems like it may well have come down this way.

  4. Dan

    I suppose I could share these comments with Orin, but here I am. I’d read the vc on and off for a long time. I abandoned it shortly after the move to wapo but would still check it once in a while if an interesting issue came up and I wondered what the folks over there might have to say about it. I think there are three things that made me stop reading it-

    1) it became more political and more mainstream political, albeit dressed up in lawyer nerd language. Nonetheless, I felt it took on a fox newsish quality, particularly with respect to president Obama- there was a similar quality to the he’s a foreign born socialist who’s taking away our country commentary you might see on the new york post, albeit it was said the way someone with a fancy degree might say it. Posts on the constitutionality of certain executive actions took on a he doesn’t understand the constitution quality, and were also tinged with a little jealousy that a mere lecturer could ascend to the presidency. The politics weren’t just about Obama. Certain posters had a real Johnny one note market based solution fixation to them.

    2) the law school scam. I thought there were very few posts on the topic as the nytimes, campos, and others started writing about it. It came to bug me that law professors had so little to say about it, particularly law professors who taught rooms full of students who would never work as lawyers.

    3) obamacare- it seemed to take over. Some of the bloggers there were very involved in some of the court cases, so that’s what they wrote about, but it was both boring and too political.

    When I first started reading the vc, I didn’t even realize it was a “libertarian” blog. I just thought it was interesting. But it became less interesting.

  5. Beth Clarkson

    ” You thought this was all about you, your entertainment and a tummy rub that someone out there agrees that your thoughts are brilliant.”

    Are you telling me I was wrong about that?

  6. Max Kennerly

    What good is it to influence “the public” on topics like these? “The public” does not decide cases. They do not even determine legal rules. They only influence the actual content of the law from several steps removed. It’s one thing to raise public awareness of abuses like civil forfeiture (like what Radley Balko does), but substantive legal analysis is typically useless to the public — the public has no power to change the details of the law even if they wanted to do so. The public can only elect people who they hope will keep the right goals in mind as they appoint others to make and to decide the law.

    To me, the only way VC’s move makes sense is if “the goal” is to attempt to influence the ruling class in DC, which to this day continues to read WaPo in lieu of far more informative and accurate sources on the law. This isn’t an inherently unworthy goal — it might very well be an effective way to change the law for the better — but the content most likely to fulfill that goal will be of little use to the vast majority of experts and laypersons alike. It will be, as you said, nothing but articles of “embarrassingly limited depth.” My hunch is that, as they try harder and harder to please the ruling class, they will devolve further into the same mealy-mouthed, wishy-washy unobjectionable prattle that characterizes places like, you know, WaPo.

    I say it’s better to be someone’s shot of whiskey than everybody’s cup of tea. Keep on truckin’, Scott.

  7. James

    It has lead to considerably less Stewart Baker in my life… you take the good, you take the bad…

  8. Peter E. Brownback III

    For what it’s worth, Orin Kerr posted a reader poll about 30 minutes ago with the lead-in,

    Reader poll on changes at the Volokh Conspiracy
    Has the Volokh Conspiracy jumped the shark? Is the paywall a big problem? Is the blog even better than ever? Here’s a reader poll asking three questions about how we’re doing.
    By Orin Kerr | Blogging | 23 mins ago

    I attempted to answer the poll, but I had already read my quota for the month. One might imagine that not having readers who have been bounced off the site answer the poll questions will skew the results.

    1. SHG Post author

      I see the poll. Not sure what to make of the results (at least thus far), or whether the questions really do much to address the potential problems, but it really doesn’t matter. The die is cast.

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