October 12, 2006
Blogging and Preemption
Posted by Usha Rodrigues

I have a question. This evolving medium, the blogosphere, allows us to float ideas for drafts or get preliminary reactions to partially completed work. How risky is that? Sure, blogs may or may not be scholarship. But does the blogger have any claim over emerging ideas she blogs about? For example, I think there might be something I’d like to write about the publishing propensity of the Delaware judiciary. Maybe there’s nothing to the idea—that’s why I wrote the post, to see what people thought. Blogging, to me, is about circulating ideas and getting a conversation started. But is there any blogging norm that prevents a lurker from stealing “my” topic? I think it’s pretty safe to say that posting a draft on SSRN is staking out a claim to an idea. But what about blogging? Is that enough?* I think the answer’s no, right?

*If it is enough, then consider the Delaware judiciary’s publishing propensity mine. Mine, mine, mine. I spit on it. It’s mine.

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"There's an interesting dialogue going on over at Conglomerate on the question posed by Usha Rodrigue ..." [more] (Tracked on October 12, 2006 @ 12:21)
Comments (7)

1. Posted by tom joo on October 12, 2006 @ 11:32 | Permalink

at least as i see it, spitting on something makes it yours by a self-executing mechanism, independent of norms. in other words, eww.


2. Posted by Gordon Smith on October 12, 2006 @ 11:43 | Permalink

Usha, I am not sure what "preemption" means. I know that we did "preemption checks" for student comments on the law review, but I was never sure when a topic was preempted. Take your Delaware judges idea. If I write a piece on the publishing propensity of Delaware judges and I explain that propensity on their status as corporate law experts, does that preempt you from offering a different explanation? Or would you think that I should be preempted from even addressing the subject?

Rather than thinking about this as preemption, I think it makes more sense to think about citations. If you get an idea from a blog post and you write that idea up in a paper, you should cite to the blog post in your paper.


3. Posted by Usha Rodrigues on October 12, 2006 @ 13:22 | Permalink

Interesting point, Gordon, and I certainly agree with you that one can publish a different-take-on-topic-x article without triggering preemption concerns regarding a prior article on topic x. Perhaps the trouble is that I was using "publishing propensity of the DE judiciary" as shorthand for the argument, such as it was, in my post. I.e., my question is really, what if someone makes the case that DE judges publish more, and then goes on to argue that this is a manifestation of the Macey & Miller theory? Or of Rock's observations? And that article gets into the Harvard Law Review. Could I assert some prior claim of ownership? Could I say, "No fair, that was MY idea, and I should get more than a footnote--I should be able to prevent you from publishing that article.”? Probably some of this stems from the paranoia of the young prawf—the omnipresent specter that someone is going to get there first.

Jeff Lipshaw has an interesting “prior art” take over at Legal Profession Blog (trackback below). Jeff, I just have to ask…dibbies?


4. Posted by Jeff Lipshaw on October 12, 2006 @ 15:20 | Permalink

Dibbies are like dibs, but they are cuter.


5. Posted by Miriam Cherry on October 12, 2006 @ 15:29 | Permalink

Very interesting post here!

I don't think there's anything preventing someone taking an idea, once it has been posted on a blog. The blog is on the internet. The idea is officially out in the world.

The consequences of this, I think, are perhaps a bit unfortunate, to a certain degree. There's stuff that I'd like to blog about, but because I'm concerned that someone will take it, I only put out ideas where I am not too concerned about theft. So maybe it lowers the quality of my blog posts.

If you're the opportunistic reader, let's say, there's nothing to stop you - except perhaps the knowledge that the original author of the post thought about the idea before you did, and you may be in a competition with them to publish first...


6. Posted by Gordon Smith on October 12, 2006 @ 16:30 | Permalink

I agree with Miriam. If someone did what you describe, Usha, I would expect them to cite your post, thus showing that their piece is a derivative of your idea. Of course, we often get ideas from other people. One function of the first footnote is to give credit to people who have pitched in ideas.


7. Posted by Anthony D'Amato on January 21, 2007 @ 9:26 | Permalink

"Spitting on something makes it mine." Ah, how those words bring back the educational highlight of my freshman year of college. One of the students in our corridor used to get a box of cookies from his parents every other day. When we went into his room, we simply took one of the cookies for ourselves. This got him angry. The next time we went into his room, there was a sign posted on the cookie box. "I SPAT ON EVERY ONE OF THESE COOKIES."

Then, a few days later, when I went into his room, I saw a small sign beneath the one he had posted. It said: "SO DID I."

Now I realize, folks, that there is a law review article in this anecdote. Or at least the title of a law review article. Well, for your information, I hereby give it away, scot free. You can beg, borrow, or steal it from me. You can cite me or not cite me, as the case may be. The best things in life are free. As Charles Dickens famously said, "Great Expectorations."

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