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!
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