Friend of the Conglomerate Larry Cunningham points to Popular Science's September roundup of 100 inventions that changed the world, only one of which is a legal innovation: the corporation (link not available - ask your librarian!). It's a strong contender; indeed, I can't really think of another legal fiction with such significance, though patents probably come close, and I guess I wonder if an agency is a legal fiction. But you can have your constructive trusts, trade secrets, and asset-backed securities! Readers are invited to provide their own suggestions for similarly consequential legal inventions in the comments.
Over at Prawfsblawg, contributors are posting about their memories of blogging from the past ten years. I thought I would add mine here.
Gordon and I began Conglomerate in November 2004 after combining/abandoning our two "weblogs," BizFems Speak! (wince) and Venturpreneur. I'm sure I won't get this all right, but the other blawgers on the block were Volokh Conspiracy, Bainbridge, Ideoblog (Larry Ribstein), The Right Coast, Leiter Reports, Crescat Sententia (then law student Will Baude and others), Sentencing Law & Policy, Crooked Timber (ok, economists), and a handful of others. Then came Prawfsblawg. Then Concurring Opinions. Then my Marquette colleage Eric Goldman's Technology & Marketing Blog. Not to mention the Law Professors Blog Network (Paul Caron). Then everybody. I wrote with nostalgia about 2005:
Blawgosphere 2005 was like a freshman dorm. I felt like I was great friends with all sorts of law professors, and we all sort of new about each other, just from the blog. We knew what Steve had for dinner and Orin linked to a picture of my dog. Sure, we all had different specialties, but we were thrown together for intramural sports and mixers. On our blogs, we spent a lot of time talking to each other just about law school in general. Now, we're like in graduate school. We each focus on our own stuff, and link to primary sources in our field. We link to each other occasionally, out of nostalgia, but not often. Back then, we had a lot of conversations that were rarely discussed in big groups: getting into law school, going through the meat market, whether students should be on law review, whether students should clerk, what the standard course package was, etc. One of our posts that got the most traffic was on blind grading! But now, these discussions seem stale. Do we really need to have another round of "where are the women bloggers?" or "what should professors wear to class" or "what do you call your students?" It's almost like your freshmen buddies asking you five years later "Is Goofy a dog?" and you think, "Didn't we already cover this?"
I remember going to Law & Society in 2005 in Las Vegas, and it was like a family reunion with cousins I hadn't seen since childhood, even though I had never met them in person. Suddenly, even though I was teaching in Milwaukee, Wisconsin, I had colleagues across the country it would have taken me years to meet through going to conferences. It was a little weirder meeting readers, where the informational asymmetry was real -- they knew what movie I went to last week, but I didn't know their names. Still, I loved it. I loved the camaraderie and the fellowship.
Of course, Danny Markel was a big part of that camaraderie, and many of the anniversary posts at Prawfs are dedicated to his memory. And, of course, Larry Ribstein. I unwittingly picked a fight in the blawgosphere with Larry Ribstein, and he recommended me for a job. The rest is history.
Deferred Prosecution Agreements have been in vogue since the unwarranted death of Arthur Andersen, and over at Jotwell, Larry Mitchell glosses Larry Cunningham's take on what to do about them. A taste:
DPAs can be useful, he tells us, but only if prosecutors approach the negotiation and structuring of an agreement as a governance problem. Ever since the 1996 Delaware Caremark decision, Delaware law at least formally has required that its corporations structure governance in a manner that discourages unlawful conduct and that makes it detectable when it occurs. Sarbanes-Oxley supplemented this approach with its own regulations. And who better to understand the governance of any particular corporation than its own board and executives?
Over at Opinio Juris, the international law blog, they are marking their tenth anniversary with some ruminations about blogging and the blogosphere. See here, here, here, and here, and others thereabouts. Do go celebrate with them, contemplate law blogs more generally, and observe that they don't look one bit older than they did when they began their epic blogojourney. Congratulations, Opinio Juris!
UConn's James Kwak has joined Medium's Bull Market, a collection of interesting business writers doing long and semi-long form work. His first post is here, on the Silicon Valley no-poaching litigation. Welcome to the blogosphere! If that's the right term for this. Anyway, Medium has that cool design thing going on, so it will be nice to class the law professor writing on the internet median up a bit.
My colleague Eric Orts is blogging on business law, business entities, and similar subjects here. Welcome to the blogosphere, Eric!
We have learned to our shock and great sadness that Dan Markel was shot and killed today. Prawfsblawg, which he co-founded, has a tribute, and his Facebook wall is overflowing with messages honoring him as a classmate, friend, mentor, colleague, and, perhaps most importantly to Dan, father. We will miss his energy and kindness, and I join Christine in hoping that Dan and Larry Ribstein are starting a blog together. Rest in peace.
Over the past 2 weeks I've mulled over several blogposts, but whenever I actually felt like pulling the trigger Typepad was beset with a denial of service attack--or something. I'm sure our readers are finding these just as frustrating as we are! Much of my blogging are riffs on something in the news, and if I can't blog for a day or two, it starts to feel stale. Unfortunately none of those imagined posts seem particularly topical now. Around-the-clock availability seems like a sine qua non for the bloghosting business, so it will be interesting to see how Typepad fares if these attacks continue.
Just presume for my sake that those unwritten blogposts were incisive and witty, 'kay?
Kish will be around for the next couple of weeks. She's got a global perspective on corporate social responsibility, cross-border transactions, and the like, and she's teaching subjects along those lines at Washington & Lee. Papers here and here. Welcome, Kish!
Up and running in the Caron blog empire is the new Law and Economics Prof blog, featuring a pretty long array of contributors, including Brian Galle, Murat Mungan, David Gamage, Eric Rasmusen, Ben Depoorter, Gerrit de Geest, Shi-Ling Hsu, Manuel Utset, and Yuval Feldman, with others on the way to join, I have it on good authority. An interesting read so far, so do check it out.
For your mid-winter blawg reading:
Margaret Hagan, a fellow at Stanford's d-school blogs about design-centered approaches to law at the ABA. She also contributes to the Whiteboard,a blog of D-school fellows.
Loyola-Chicago tax professor Sam Brunson has been providing a tax analysis of Downton Abbey (note: I do not endorse watching that show.)
Yesterday, Paul Horwitz at Prawfsblawg posted about some of the reasons he has been blogging less these days. One of his points hit home with me and echoed one of the reasons I have posted less the past year(s).
Anyone who has blogged for a long time knows it can be difficult to keep it up. Some of it has to do with the usual peaks and valleys of a person's life, including his writing life. A good deal of it has to do with the heated nature of many discussions and comment threads (including from professors), especially around legal education. I think there are good reasons for that, although it does not excuse absolutely any kind of rhetoric in my view. But heated discussions on any topic are more time-consuming to monitor, which I think one must, and can reach a point of exhaustion (both as to the discussion and as to the individual blogger involved) fairly quickly.
I'm assuming that Paul is referencing the "law school scam" meme that has overpowered almost every online discussion of law school and anything having to do with law school. In April 2010, this blog had a "Minding Our Own Business" forum in which the Glommers and friends-of-the-glom discussed the state of legal education. I hypothesized here that we were in a law school tuition bubble and analogized to the subprime mortgage bubble. (If you search NEWS in Westlaw, it is hard to find a reference to law school tuition bubbles before that post. If found one.) It was reprinted several places, and probably cost me "Star of the Week" status with my dean. I guess I could have made that "my thing," but I'm glad I didn't. Though I have always been sympathetic to the law school debt-holder, I'm not sure that my usually reasoned tone could have found a voice in the heated rhetoric of an otherwise very worthy discussion. Instead, I spent my energies at my job, teaching students, creating courses that would help them get jobs, and taking them to see emerging markets firsthand.
Gordon and I started this blog in 2004, after having our own individual blogs for a short time before. Back in the blogging heyday, what seemed like prolific blogging was really posting of status updates. A lot, however, was about teaching law. I have to say that now, I hardly ever post about teaching law. Though the benefit might be helping a junior law prof who is reading or getting advice from other law profs, the the downside is a torrent of comments that can be summed up in one sentence: "Law school is a scam and you are an overpaid, underworked fraud who will soon be out of a job and unfit for the legal profession." A person can only see that so many times without taking it personally.
Now, you might be thinking that I should get a little tougher. Real scholars don't shrink from valid criticism, whether it's pointed or sugar-coated. True, and I have never shrank from criticism on the merits of my work, whether long-form scholarship or short-form blog posts. Of course, blogging, strays from the traditional norms of academic presentations. The audience is larger and doesn't seem to have the same discourse community norms. But still, columnists and journalists write on-line pieces that receive comments. Am I more of a sissy than those guys? I don't know if Gail Collins reads her comments or not, but law school blogging is in a strange "sour spot" between presenting in front of colleagues at a conference and writing op-eds commented on by 300 strangers. Getting bitter comments from 10-20 readers, all of whom seemed to be named "anon" seems more personal.
Finally, Paul notes that much of our talk now about life as a law professor goes on facebook. Our grading highs and lows, our blegs for advice and materials. And the comments never begin with "Law school is a scam. . . ." Even though the folks that could comments are former students who have plenty of reason to spew vitriol. But, they can't do it anonymously.
Columbia has just gone live with a blog that looks modeled somewhat off of Harvard's Corporate Governance Forum, and it's got some good contributions already. Here's a post by Don Langevoort, and of course John Coffee is participating. Here's what they're going for:
Well worth a look. Welcome to the blogosphere!