Bob Ambrogi has a real nice piece this morning on “The Lawyers of Substack.”

As early adopters of digital publishing in the law turned to blogging, something we’ve seen explode over the last decade, some legal publishers are turning to Substack.

Substack is an online platform that provides publishing, payment, analytics, and design infrastructure to support subscription newsletters.

Among the legal Substack users Ambrogi highlights are lawyers and career legal journalists, David Lat and Jason Tashea, whom I’ve been reading on Substack.

Lat covers events and trends in the law. As I have mentioned before regarding Substack, Lat is likely to return to the heights of legal journalism – covering the Supreme Court and more. He founded one of the first widely read blogs, Underneath Their Robes, as well as the granddaddy of legal blogs, Above the Law.

Being able to charge a five dollars a month, Lat could turn this in to lucrative deal. I’d rather read Lat than similar coverage from ALM or Law360.

Jason Tashea covers access to legal tech as it relates to access to justice matters, and does a heck of a job at it. There is no better person covering the area than Tashea, a legal tech entrepreneur and former report for the ABA Journal.

I have commented on Substack and legal publishing before, but after reading Ambrogi’s post I asked some teammates their thoughts on Substack. Our quick take:

• Substack is meant to be a platform for people to make money from their content through subscribers. That’s how they, Substack, make money. Most legal bloggers make money through their law practice.
• Substack has an easy to use and nice looking interface for publishing.
• A big reason Substack is experiencing some success is that they’re set up so that their publications emulate what made early blogs so successful: they cover a narrow niche and they’re usually authored by a single personality—and people are drawn to that person/personality.
• The novelty of a new platform will attract lawyers and firms, though firms may struggle with success as group publishers.
• Full text newsletter versus excerpts which some firms mistakenly choose to to go with on blog posts based on the belief that traffic to their blog is more important than reader convenience and loyalty.
• By charging a subscription on Substack (optional) you may be putting your content behind a paywall and making it irrelevant as far as evolution of the law.

Colin O’Keefe, who leads our publishing group, shared his thoughts on Substack, directly, in a blog post last fall.

Read Ambrogi’s post, if you haven’t already to learn more about the lawyers on Substack and what they’re doing. Maybe, like them, there will be something in Substack for you.

Academic publishing is broken.

That’s the word from Brazilian journalist, Raphael Tsavkko Garcia, who reports for Al Jazeera and MIT Tech Review, among other news outlets, in an excellent piece in Bookseller.

Garcia’s points may be as applicable to legal publishing – think law reviews and other legal periodicals – as any academic publishing.

*[There may be inaccuracies on this post as to the accessibility of legal academic articles. Rather than delete the post, I have left it up because it has been circulated on social media. Further comments from me forthcoming.]

• It is increasingly difficult for academics to have access to the articles they need to do their work – even their own articles. 
• Well-ranked journals don’t even give the authors access to the articles they wrote.
• Authors cannot get access through their schools, unless the school is a subscriber and often they are not.
• Colleagues in the author’s field cannot get access unless they or their institution are subscribers.
• Authors and colleges need to pay large sums to read one piece or to cite it.
• Large repositories of journals and professional publications are extremely expensive and more and more universities handpick which ones they will subscribe to, creating countless difficulties for researchers to have access to much-needed articles and journals.
• Because of lagging technology, academics can spend more time figuring out how to access an article than actually reading it, making notes and citing it – or having to pay a full price for the entire journal, let alone a shameful amount for one article.
• Academics are threatened by big publishing companies if they decide to make the content they have produced available for free.

The dilemma is that academics need to publish in such journals for status and tenure. Law schools need their professors in law journals and the like to sustain rankings and, in turn tuition monies.

Garcia sees non-profit entities partnering with universities as one possible solution.

In the case of law schools, why not have law schools using open publishing platforms such as a managed blog platform for the law. Partner with organizations like LexBlog to run the platform and support your professors.

Keeps the expenses for a law school to a minimum and results in all articles free and open to be cited and shared.

Get the obvious advantages of advancing the law much faster, raising the stature of law professors quicker and making the law professor’s articles relevant again. Law reviews are becoming less and less relevant with the advent of legal blogs.

I don’t have the experience of academics or librarians on this subject. But I have sat at enough legal and law school conferences to learn that legal academic publish could use some fixing – and that the fixing is not likely to come from traditional legal publishers who benefit from the status quo.

Standing corrected on some points, per Professor Madison.

Virtually none of the problems described in the linked essay apply to US legal scholarship, essentially all of which is open & free to anyone w/an Internet connection. Many schools use free & open publishing platforms. ?s of usefulness have little to do with accessibility.

— Michael Madison (@profmadison) May 5, 2021

Verizon announced this morning that it is selling its media business – AOL and Yahoo – for $5 Billion.

I couldn’t help but recall how AOL launched me from a practicing lawyer to a legal tech entrepreneur. The same was true for many other lawyers.

AOL was the entry to the Internet in the 1990’s. Heck, we did not even call “it” the Internet or the World Wide Web (WWW).

We called AOL an online community that we accessed via our home phone lines plugged into a disc we picked up at Barnes and Noble.

Lawyers, like myself, answered legal questions posted by consumers, business people and other lawyers on all sorts of AOL message boards broken down by areas of the law.

We could also post documents and informational summaries by area of the law.

99.9% of lawyers were afraid to use AOL for fear they would be breaching confidences, practicing law in another state, talking to someone who had a lawyer or giving away legal information for free. The rest mostly thought AOL and the Internet was a joke.

What the participating lawyers saw, regardless of risk (it as minimal), was the huge potential of AOL and the Internet. The ability to connect people located anywhere and to exchange information in the process. A natural fit for the law.

Lawyers also connected with other lawyers for referrals. I received referrals and referred a lot of clients to lawyers around the country. Clients got to the best of lawyers rather than guessing who was good via an ad.

Rather than use a lawyer in our firm for research, we hired clerks from law schools around the country. These clerks had free access to WestLaw so we cancelled our subscription, and just used WestLaw, piecemeal.

AOL absolutely took off during the time the early lawyers were using it.

From 300,000 paying members in 1993 to 5 million members, only three years later. Numbers not to be sneezed at as this was long before the day of computers on everyone’s desks, let alone Google.

AOL reached a valuation of $222 billion just three years after, in 1999.

I had seen enough, after answering questions and building a reputation on AOL, by that time to close my law office in Wisconsin and move to Seattle to start an “AOL on the law,” Prairielaw.com. Later, merged with Martindale’s directory for lawyers.com.

Sure, all Internet entrepreneurs and companies experienced a market correction from 2000 to 2002.

But the net for people, lawyers, and the people that lawyers serve was here to stay as a result of AOL and how AOL opened the eyes of lawyers using it to the possibilities of the Internet.

The law is evolving faster than at anytime in the history of our country. The reason is blog software.

The law is not limited to what state or federal legislatures pass or courts decide. The law evolves because of an ongoing discussion of the law and society taking place in the writings of legal professionals.

This writing has exploded, and exploded on more niches than we could have every imagined because of a blog software.

Gatekeepers, whether large publishing companies, associations or law schools, no longer control who publishes and what they publish.

Lawyers and law professors spend hours and, in some cases, days, penning articles. They release this content openly on blog software. If the content were sold and put behind a paywall, we’d have less access to the law and impede the evolution of the law.

Law reviews and law journals have largely become irrelevant. Judges, lawyers and the public are accessing the law through the net. Lawyers are entering into “discussions” about the law by referencing what other lawyers are penning on blog software. These discussions, the blogs and other writings, are being cited.

Law evolves in abstract ways. Take the evolution of a jury instruction. An instruction that can and will decide a case at trial and establish the law when the instruction is ruled upon by an appellate court.

Serving on a the jury instruction committee for my state trial lawyer’s association, back when I was practicing law, we crafted instructions and commented on others to submit to our state’s judges. We were influencing an evolving law.

Today, bloggers, and others writing on blog software, are influencing judges and state houses on niches that never existing before. We didn’t have niches such as fashion law, food safety law, cruise law or cannabis law.

One can argue that existing law is being applied to these niches (the law of the horse), but that’s not the case when laws are evolving to cover these niches because of the influence of blog software users and their work being cited from state houses to courts.

The speed at which the law is evolving may not be readily apparent to all, but it’s happening. Because of blog software.

Law school deans need to be using Twitter.

It’s no longer acceptable to have your communications person craft a statement for you, include it in a press release and hope you’ll pick up accolades in the traditional media.

I am not saying that it’s bad. But this morning, I saw coverage in a local east coast newspaper of law school’s legal tech certificate program being offered to lawyers and other legal professionals because of tech training needs arising out of the pandemic.

The dean and the head of the school’s legal tech tech program were each quoted. I shared word of the story on Twitter to compliment school and to share what the school was doing as an example for other law schools.

I wanted to quote and/or give kudos to the dean and the head of the program, but neither had a Twitter account. You cannot give a shoutout to someone on Twitter if they don’t have am account.

The reason being is that they cannot see your compliment. Have an account and they’ll see your “kudos” and all the other acknowledgments that followed yours on Twitter. After my twitter, a number did this morning.

No dean or director of a program at a law school wants to miss out on kudos and the resulting engagement among those talking about your program. You want to join the discussion and offer thanks. But that’s exactly what you choose to do when you opted off Twitter.

It’s no longer cool to say I’m too busy to get on Twitter or that I can’t keeep up with all the crazy social media out there.

Twitter is not crazy.

• It’s how people, including many in the legal profession, receive news and information.
• It’s how you share information with your audience – alumni, faculty, students, prospective students and faculty, media, social media influencers and other law schools.
• Information moves in a real and authentic fashion today, versus through public relations.
• It’s how you build relationships and connections with the people with whom you need to.

I follow a good number of deans and former deans on Twitter. What they are doing and have done for their schools via networking through the Internet, including via Twitter, is wonderful.

Don’t get me wrong, I am not bashing anyone. I am just explaining there is a real lost opportunity when law school deans opt off Twitter.

No one could have imagined the changes we have seen the last ten or twenty years.

Two day delivery of anything we want from the largest company in the world, a company that didn’t exist twenty plus years ago. A newly minted electric car company with a valuation in excess of all the other U.S. auto manufacturers, combined.

All the result of innovation, technology and the Internet.

While we hear of legal tech left and right, today, we hear little, if anything, of innovation when it comes to legal scholarship. This scholarship, when it comes to law schools, being the bastion of law reviews.

No question law reviews have value to law schools, law professors, law students and law school administration.

But it’s possible the legal scholarship set forth in law reviews could be made more relevant – and more valuable to all involved if it were published in blogs.

Thirteen years ago, Adam Liptak, the Supreme Court Reporter for the New York Times, reported that judges were finding law reviews irrelevant.

“I haven’t opened up a law review in years,” said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. “No one speaks of them. No one relies on them.””

The decline in the relevance of law reviews before and after the advent of the Internet is shocking. Per Liptak,

“In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937. 

Patterns at other leading law reviews are similar. And the drop in the number of citations understates the phenomenon, as the courts’ caseload has exploded in the meantime.”

Six years later, Liptak wrote of lawyers, judges and the public turning to law blogs, as opposed to law reviews.

“The judge, lawyer or ordinary reader looking for accessible and timely accounts or critiques of legal developments is much better off turning to the many excellent law blogs.”

Because of the ease in which legal blogs are found on Google and the legal niches covered in law blogs, and not covered in law reviews, law reviews are becoming increasingly irrelevant as far as the practice and administration of the law is concerned.

Imagine using the open publishing platform of record – the one used by newspapers, professionals and businesses – for legal scholarship. A blog.

Arm professors looking to discuss legal scholarship with their own printing press. A blog.

Empower law students looking to offer legal scholarship, equally, with a blog.

Blend legal scholarship from academics and practicing lawyers, via blogs.

Like open source technology, which has advanced technology in ways much faster than proprietary software, open law, via blogs, will advance legal scholarship, the administration of justice and public access to the law.

Seems only logical that law blogs replace law reviews. Innovation and technology is unavoidable, even in the law.

The name of the contributor of a law blog post stays with the blog post, as its author, forever. Just as if the blogger wrote a book or a law review article.

If a blogging lawyer leaves the law firm, the appropriate thing for a law firm to do is to let the blogging lawyer take their law blog.

If the blog is a multi-author blog, things may get stickier. But it’s very easy to “port” the blog posts into a file for the lawyer – if the firm is not leaving the posts up in the lawyer’s name.

I asked on Twitter what folks thought a law firm’s obligation was as to leaving a blogging author’s name on blog posts.

When a blogging lawyer leaves a law firm and the firm retains their blog, wouldn’t the law firm need to keep the lawyer’s name on any blog posts that it displayed online or syndicated? Thoughts?

— Kevin O'Keefe (@kevinokeefe) April 27, 2021

And received all sorts of answers.

• Convert the posts to guest authors in the original lawyer’s name.
• Convert the byline to the firm’s name with the original author listed as the author in the body copy.
• Some firms had deleted posts or converted the byline to “staff.”
• Depends on the trademark or the intellectual property rights. If the firm owns, they can do as they please.

I understand that everything created during your time at the law firm is the firm’s (except maybe your children), but what about the ethical rules in play

ABA Model 7.1 regarding advertising communications (each state would have a comparable rule) provides:

“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

Do anything to imply that the lawyer who wrote the post did not, such as deleting the lawyer’s name or inserting the firm’s name, is a misleading communication. Doesn’t matter who owned the blog post.

Tossing out the original lawyer’s posts or making them unavailable in any way under the original lawyer’s name also raises an ethical issue.

Law blog posts are the law in the sense that that they are providing legal insight and commentary on niches never covered before. Blog posts, with the author’s name, drive legal discourse and are routinely cited by title and author by lawyers and the courts.

The Preamble of the Model Rules, of which each state will have a similar provision, makes clear a lawyer’s obligation to cultivate knowledge of the law for the public and foster access to the law.

“As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.”

Eliminating or altering the author of law blog posts flies in the face of the ABA’s preamble. Changing the author of the commentary in the law, in effect, changes the legal commentary altogether.

We’re charting new ground in legal blogging. Marketing guidelines, partnership agreements or corporate bylaws may not be decisive here.

The law, legal publishing standards, and doing the right thing, may be controlling here.

“Silos are computer networks that are walled off from everything else. Your ideas can go in there, they make that easy, even enticing, but they can’t interact with ideas anywhere else. Ideas that can’t interact are fairly useless.”

This from the inventor of blogging, Dave Winer aptly describing where most legal publishing historically has gone.

Into silos, at the enticement of large legal publishers, law journals, law reviews and trade/association periodicals

Much has been ego driven. Here’s my article in the National Law Journal. Here’s my law review article in a law school’s law review.

Some rankings driven for law schools. Here’s the professors who have written for law reviews.

All of these places are silos controlled by publishers. Only their chosen legal thinkers get in, only thoughts that are purchased can get out, only paid subscribers of the publications participate in the legal discussion – assuming subscribers do so.

Like software, the advancement of the law takes place much faster when the law is open.

Look at the law today, as compared to twenty-five years. Most of the legal insight and commentary, today, is published on blogs.

Blogs are open to the world, regularly cited by other blogs and shared across social media.

Information, thoughts and ideas are moving openly and quickly. Gone are the silos, for most legal contributors.

Continuing to publish your legal ideas to silos may render your ideas fairly useless.