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!
Last week, David linked to Jay Brown's interesting post and article on the frequency with which blogs by legal academics are cited by other legal scholars. Professor Brown also tallies up how many times these law faculty blogs are cited by courts, state or federal. Thirteen blogs have been cited once, by any court in the U.S., presumably since the birth of blogs (the article that contains the data does not list any data parameters). Here are the blogs that have been cited more than once:
Rank # of Citations Blog (1) 45 Sentencing Law and Policy (43 fed; 2 state) (2) 8 Volokh Conspiracy (7 fed; 1 state) (3) 6 Patently 0 (6 fed) (4) 4 The Confrontation Blog (1 fed, 3 state) (5) 3 ProfessorBainbridge (3 state) (5) 3 Election Law Blog (2 fed; 1 State) (7) 2 Becker-Posner Blog (1 fed; 1 state) (7) 2 Credit Slips (1 fed; 1 state) (7) 2 Ideoblog (2 state)
As you can see, there's basically Sentencing Law and Policy, and the rest. In doing a few quick searches, I would posit that courts cite not only to Huffington Post considerably more than all law faculty blogs but one, but also to Sports Illustrated (and People, etc.).
Now, does this mean that I don't think that law faculty blogs have no sway on courts? Not at all. But, citations may not be a perfect proxy for influence. We know anecdotally that judges know what is being written on the blogs. But that doesn't mean that courts will need to cite to them.
Consider a case in front of an appellate court or trial court that writes opinions (federal, Delaware). The court's clerks read blogs, cite them in their memos. Or, the clerks read blogs, then go to the articles that are cited in a blog post and cite them. Or, the parties to the case cite to blog posts or the articles the posts cite in their briefs. The judges read the memos and briefs. When the judges write their opinions, they may never cite the blog posts. Courts cite to sources to show how their opinion follows a line of precedent. If a court goes out on a limb, the opinion may cite to a secondary source. When there are no articles because something is very new, the court may cite to a blog discussion, such as the great commentary on Sentencing Law and Policy during the Booker Revolution. But, if a blog post merely persuaded the judge to adopt one line of cases over another, or think about a certain precedent in a certain way, then the judge probably wouldn't cite anything. Judges don't have law review editors convincing them that no thought is original and every sentence requires a cite to something.
But legal scholars have these law review editors, which is why we need to cite to something, even a blog post. And that's why the numbers on the chart David reproduced last week, showing citations to blogs in legal scholarship, are so much higher. In fact, as I think I've told everyone I've ever met, a law review editor once told me I needed a citation for an assertion that was my own original assertion -- so I cited to my own blog post. This satisfied the law review editor. Judges don't have to do that.
We're top ten for law review citations, though our rivals at Harvard's Corp Governance blog are just ahead of us. Here's the list, and there's lots more over at Jay Brown's site, inlcuding lists of citations to the blogs by judges.
The top 10 most cited law faculty blogs in law reviews are:
Rank # of Citations Blog
1 742 Volokh Conspiracy
2 426 Balkinization
3 393 Patently O
4 279 Concurring Opinions
5 272 Sentencing Law and Policy
6 219 Prawfs Blawg
7 200 Opinio Juris
8 179 Lessig Blog
9 178 Harvard Forum on Corp. Gov.
10 171 Conglomerate
I am attending the Economics Bloggers Forum 2012 today at the Kauffman Foundation. You can get a progam and live stream here. Cool event, as is the norm with Kauffman and Bob Litan.
UPDATE: The Kauffman sketchbook series is fun. We just watched "I'm a blogger" featuring Tyler Cowen. Nice.
Former Glom guest, Allison Christians, has started her own blog, Tax, Society & Culture. She is off to a good start!
I am happy to recommend a new blog Brazen And Tenured - Law Politics Nature and Culture from two of my colleagues: Pierre Schlag, Byron White Professor of Constitutional Law, and Sarah Krakoff, Wolf-Nichol Fellow. Pierre's research interests include constitutional law, jurisprudence, legal philosophy, and tort law. Pierre wrote an essay, The Faculty Workshop, which examines how the institution of law school faculty workshops expresses, regulates, and reproduces legal academic behavior, governance, hierarchy, norms, and thought. Sarah's research interests include civil procedure; Indian law, and natural resources law. Sarah is working on a book about the different stages of humans' relationship to nature, which extends her book chapter, Parenting the Planet.
As Pierre described their blog, it's quite idiosyncratic as far as blogs are concerned. That having been said, Glom readers are likely to find their blog to be amusing, informative, and thought-provoking. Here are the two most recent examples.
Pierre's post entitled Tips for Legal Commentators: How to Talk to the Press is a delightful compendium of speaking points. It explains why the legal talking heads who come out of the woodwork to appear on television during any high-profile trial or other legal event always seem to say the same things with a high noise to signal ratio. My personal expeirence when speaking to print media financial journalists about securities fraud, materiality, derivatives, and Goldman Sachs is there is a very high probability (equal to one minus epsilon, where epsilon is a very small positive number) that I'll be misquoted to have said exactly the opposite of what I actually said! Pierre's advice for speaking to journalists has the virtue that it has the property of being subject matter and position invariant. In other words, no matter what legal topic and what viewpoint you have, Pierre's suggested sound bites will apply. Because they are universal and timeless, these quotes have the added virtue of making you sound profound and wise. Finally, these sample responses to media questions are brief, intuitive, memorable, and predictable. Once you deploy one, there is likely to be repeat demand for your expertise. On the other hand, if you do not enjoy being a talking head, then do the opposite of what Pierre recommends to ensure that reporters will not seek you out.
Sarah's post entitled The Economy versus the Environment? Not! (Or Why to Be Tigger Instead of Eeyore this Halloween) is a welcome reminder for both economists and environmentalists that being offered a choice between the economy and the environment is a false dichotomy that privileges a myopic time horizon and local opposed to global perspectives. Her post also nicely dovetails the small but growing literature applying empirical happiness research to support sustainable environmental policy. For example, Daniel A. Farber recently posted a working paper entitled Law, Sustainability, and the Pursuit of Happiness, which demonstrates that sustainability for society and the pursuit of individual happiness do not have to be at odds.
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If you want to join a growing team of bleeding edge scholars, you will want to add The Conglomerate's au courant observations to your footnotes. So many others are doing exactly that; one possibly underinclusive search puts us in 117 articles in Westlaw's law review and journals database (Westlaw Next JLR search "advanced:"http://www.theconglomerate.org/""). Not too bad for a bunch of specialists.
This week, the media is abuzz with the announcement that AOL is acquiring The Huffington Post for $315 million. (In contrast, few people seem to have noticed that Ensco and Pride International are creating the second-biggest deep-water drilling company, at a pricetag of $7.3 billion.) But, for corporate law scholars, the interesting twist is not who will own Huffington Post, but who owns it now.
OK, you can understand college kids not getting everything in writing, but middle-aged millionaires? Really? This month's Vanity Fair has an interesting article about the behind-the-scenes fight that officially began with Peter Daou and James Boyce sued Arianna Huffington and The Huffington Post.com in mid-November 2010 claiming that they were the creators of The Huffington Post. (The complaint is here.) They allege breach of contract, idea misappropriation, and most importantly to us business law professors, breach of fiduciary duties because they formed a "joint venture." Bingo! However, they don't want damages, they want the credit (and a donation to the charity of their choosing).
So, is the claim a worthy one? Well, according to the facts alleged in the complaint, there's a lot more there to hang one's partnership hat on than in Holmes v. Lerner (Urban Decay), which Gordon has blogged about before. But, after the launch of site, neither Daou or Boyce's actions look like someone who believes that he is a partner in anything, unlike the other case where Patricia Holmes worked for the venture for a year with no salary. The site apparently was the product of a brainstorming session on December 3, 2004 at Huffington's home, where she invited a group of disappointed Kerry supporters and Hollywood movers and shakers to discuss the creation of a "liberal Drudge Report." However, prior to this breakfast confab, Daou and Boyce had dreamed up this idea in the hours after the presidential election and presented it to Huffington, their close friend. On November 14, 2004, they gave to her a 15-page memorandum outlining the idea behind "1460," a blog they hoped would mobilize the Democratic base prior to the next election (there are 1,460 days between presidential elections). Here is the November 14, 2004 proposal for "1460." The two met with Huffington the morning before the Dec. 3 breakfast to prepare for the larger meeting, and then discussed the idea further with her and Kenny Lerer, who would end up financing the blog. Lerer apparently did not like Daou and Boyce, and after he and Huffington asked the two to write up a strategic plan ("blueprint") for the blog, the blog was financed and launched on May 9, 2005, without them being investors or employees.
(What is interesting to remember, way back then at the early stages of blogging, is that the crowd was very skeptical of professional blogs, including The Huffington Post. Here was Gordon's first take; here was one of Ann Althouse's first thoughts. Even Larry David, the actor and investor in The Huffington Post, said "“All I remember is Arianna telling me about this on a number of occasions and feeling sorry for her because I thought it was such a terrible idea.” I guess we didn't call this one very well. However, the launch of The Huffington Post was the beginning of the maturation of the blogosphere from when David Lat and Wonkette blogged for free to the current state of institutional, professional blogging.)
However, for six years, Daou and Boyce never complained about either not being credited as founders or receiving any sort of remuneration/ownership interest. The two blogged from time to time on the site and never said an ill word to or about Huffington. However, after Andrew Breitbart, a conservative blogger who wrote Huffington blog posts under contract at its inception, claimed to have founded The Huffington Post, Daou and Boyce were dismayed to hear Huffington say in public that Breitbart had nothing to do with the creation of the website, but not mention Daou or Boyce. After bringing up this slight with Huffington via email, they were eventually rebuffed and redirected to "legal." Of course now, one wonders if the timing coincides more with the market putting a price on the website.
So, how does this play out now that AOL has put a $315 million pricetag on The Huffington Post? The lawsuit seems to fail on the de facto partnership front for no other reason than Daou and Boyce do not seem to have thought that they were partners for over six years. The website received venture funding during that time, and the two were not involved in any of those conversations. Had they believed themselves to be owners of the website, then surely they would have chimed in at that time. I don't know enough about the "misappropriation of idea" cause of action to opine. I have not been able to find a copy of the answer, which should have ben filed by now, but it might give more clues to the future of the claim.
A nice list from B School, which includes the Glom. Lots of familiar blogs on the list, but I found some new ones, too.
Here's the the Treasury Department's official blog, inaugurated only ten years after the development of the form (to be fair, they've already got a Twitter feed too, which is a bit more au courant). Tim Geithner has given us a welcome:
Treasury Notes will be a place where senior officials and staff throughout the Department and Bureaus will post news, announcements and information so you can learn more about us and the work we do here at Treasury – a key step forward in an ongoing effort to enhance the way Treasury communicates and interacts with you.
On behalf of the Treasury Department, welcome – and please visit again soon.
I'm going to take him up on the visit again soon thing - indeed, Treasury Notes is going into my RSS Reader. I'll look forward to the Note where they announce they are discontinuing the thrift charter - here's the Times on how small the thrift industry (now minus Washington Mutual) has gotten, and how if there are any defenders of the thrift charter out there, it's non-banks like Nordstrom and State Farm, who have taken advantage of a loophole in the governing legislation to get themselves a bank subsidiary, something that the Walmarts of the world have been unable to do.
So, when Gordon and I started blogging almost exactly six years ago, I created a series of rituals designed to streamline my blogging efforts. First, I created a Bloglines accout, which gave me RSS feeds of the blogs that I read daily. However, Bloglines closed on November 1, 2010. I guess there's not much money in aggregating feeds without a subscription or advertising, etc. So, I moved on to Google Reader, which is OK, although I keep losing my place while I'm scrolling for some strange reason.
And a few weeks ago, my daily email from Law.com changed. I loved this email. It gave me blogging ideas, plus kept me up-to-date for my classes. The articles often had links to actual court documents. The content was deeper than a mainstream online presence, like NYT.com or WSJ.com. Now, the formatting is different, but worse than that, most of the stories I click on are gated. To access them, I need to purchase various premium plans, which are ghastly expensive (more than twice a WSJ subscription, for example). I don't see me upgrading any time soon, Law.com.
So, readers and fellow bloggers, give me some suggestions. Is there a better, free-er legal news aggregator than Law.com? Am I going about this all wrong?