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?
As some may know, friend of the Glom Todd Henderson has been on the receiving end of some spectacularly personal attacks following a post last week at Truth on the Market on how taxing families who make over $250k is not the same as taxing the "super rich." (The posts are gone, so no links are necessary). The controversy was picked up by established bloggers and even professional journalist-bloggers, who capitalized on the passions incited instead of calming them with objective reason. The end result is that Todd has decided not to blog any more, which is surely a loss for the blogosphere.
As an observer to this blog controversy, I am reminded of many similar incidents over the past six years of my blogging. I can certainly remember posts that I authored that (1) were taken the wrong way; (2) really upset folks in an unpredictable way or to an unpredictable degree; and/or (3) prompted personal and quite vindictive attacks. I remember the awful way I would feel for a day or two, afraid to even look at my email for fear of comments that felt like knives being thrown my way. The feeling (let's call it "bloghorror") is hard to describe. First, bloghorror is in part just a reaction to being attacked, but it's also a shame at having hurt someone else, even unintentionally, and it's also an anger at the completely unfair nature of the response. But most of all it's this feeling of being misunderstood. And unfortunately, there's no way to cure this. In 2005, my first reaction would be to explain myself, so that the blog audience would say, "Ah, I understand now." It took me a year or two to learn that once your audience has concluded that you are the devil saying devil things, any effort to explain will just add to the arsenal of the ammunition that will be hurled back at you.
In the wild west of the early blawgosphere, Gordon and I occasionally went off-brief and blogged about controversial topics that got us into trouble. Of course, knowing what will be a barn-burner is not easy to predict. The one regrettable post I remember was about how I got scammed into buying a subscription of Entertainment Weekly at the Best Buy. (Here's the post, go have fun.) My point was that if a fairly educated and savvy consumer could get scammed, the the scheme is probably trapping a lot of people. Man, did commenters want to tell me how stupid I was! (I even got a call from a network television show wanting me to be on the air telling America how stupid I was. I declined.) I laugh now, but at the time I was pretty upset with bloghorror. Maybe Gordon can remind me of other times when I was horsewhipped by the blawgosphere -- I think I've blocked out some of the pain. In addition, I think most long-time bloggers I know can think of a time when they wished they had just stepped away from the keyboard.
I think the one thing that strikes me as strange about Todd's ordeal is how other bloggers, established bloggers, went for the low-hanging fruit there. What has changed? Has the blogosphere become so saturated that bloggers are pandering for heavy traffic? I think that is what disappoints me. Bloggers are supposed to link to and disagree with one another, but hopefully in a non-tabloid manner where we give people the benefit of the doubt.
I'm leaving comments open because our readers are reasonable and well-meaning.
Yesterday, I attended our David C. Baum Memorial Lecture on Civil Liberties and Civil Rights, given by Lee C. Bollinger, President of Columbia University and Professor of Law at Columbia Law School. President Bollinger is also the author of Uninhibited, Robust, and Wide-Open: A Free Press for a New Century. (As a blogger, I can confess that I have not read the book, or even started it and finished mid-stream.) Readers of this blog may already know that President Bollinger is the Deputy Chairman of the Federal Reserve Bank of New York.
President Bollinger's talk had many excellent insights that I had not focused on before. As newspaper publishing becomes less profitable and newspaper budgets shrinks, foreign correspondence, presumably the most costly type of reporting, shrinks. In our era of global interconnectedness, the diminishment of first-hand reporting of events in foreign countries would seem to come at exactly the wrong time. President Bollinger made a cogent argument for state-supported newspapers, given the success of public universities in developing knowledge and objective commentary; the U.S.'s robus traditional of first amendment rights; the success of public-sponsored radio and television (NPR and PBS); and the success worldwide of public-sponsored news (BBC). (He has also made this argument in the WSJ.) But, what interested me was his consideration (and dismissal from consideration) of a substitute to traditional newspaper reporting in foreign countries: bloggers.
Actually, President Bollinger never used the word "blogger." He used the term "citizen-journalists." He brought up the argument that citizen journalists could replace traditional institutions of a free press in the sphere of foreign correspondence, and he said "no." I was not sure, however, that I caught his reasoning. He had already mentioned the lack of a free press culture (censorship) in many of these countries (particularly China), so he may hae suspected that bloggers in those countries would never be able to replace professional U.S. reporters with more resources and legal protections. Or, he may have just assumed that citizen-journalists did not have the expertise or wherewithal to be a good substitute for a professional press.
On the heels of this talk, the NYT today runs an op-ed from Thomas Friedman, Power to the (Blogging) People, which is very optimistic that the 70 million bloggers in China may begin to act as a "third party" in U.S.-China relations.
"Top blog" contests always make me a bit queasy, but things are a little slow on Labor Day, so I will alert you to the LexisNexis quest for the Top 25 business law blogs. The Glom is one of the initial top 25 based on their review of the blogs and comments from Community members. If you feel inspired to nominate the Glom, we offer our undying appreciation.
Christine is rightly featured in the National Law Journal for a story on "professors who have made blogging a mainstream medium." Christine is the only woman featured in the story, but she is not much interested in talking about that angle. For my money, the more interesting story is that Christine is the only blogger among the pioneers who was untenured when she started blogging. I still get questions from junior faculty about the wisdom (or not) of blogging, and I always refer them to Christine's essay, with Tung Yin, Blogging While Untenured and Other Extreme Sports.
By the way, my favorite part of the feature on Christine is the discussion of traffic. "The Conglomerate has a devoted, although not overly large, readership compared to some other law professor blogs. It averages about 1,000 unique Web site visits a day with an additional 2,000 who read the blog via an RSS feed. That's just fine with Hurt, who said that obsessing over blog traffic is 'so 2006.'"
Doug Berman, Paul Caron, Brian Leiter, and Eugene Volokh also get well-deserved kudos in the story.
On a personal note, my own foray into blogging in 2003 -- the blog was the horrendously titled "Venturpreneur" -- was inspired by Glenn Reynolds, Eugene Volokh, and Larry Lessig. At the time, I remember thinking that I was very late to the game, but when my across-the-hall neighbor Ann Althouse started blogging, it just became too fun to stop!
It's been just about 2 years since I joined the Glom. That anniversary alone, plus receiving the same survey Christine did, would probably be enough to trigger some blogger introspection. Add to the mix that we are expecting our second child any minute now, and cue outright navel-gazing.
The first few survey questions focused on that age-old question of productivity, otherwise known as time suckage. You know, the fact of your blogging comes up at a conference cocktail party and you get the quizzical look of "How do you find time for that?" which I often interpret as "you're not spending enough time on serious scholarship" or "you're frivolous" or "you don't have a life, do you?"
All of which may be true.
But I still love blogging, for reasons I articulated in this comment last year, most notably:
For me, writing begets writing. You know when you're reading and thinking and struggling with a draft and don't feel like you're getting anywhere? Sometimes the act of articulating a thought--even something completely unrelated to what you're writing your scholarship about--can get you unstuck.
Unlike Christine, I see my posts not as a form file, but more as a kind of professional-sometimes-personal diary, that I happen to share with the corner of the world that reads the Glom. Occasionally I incorporate posts into articles, but more often I post because it's fun to think out loud for 150 words or so.
All of which is to say, with regret, that I may not be posting as regularly for the next few months as we enter the insanity of life with a newborn. Or who knows? I might be late-night mommy-blogging every other day in an effort to remind myself that I can have a coherent thought. Either way, I'm glad to be a Glommer.
From time to time, someone will ask me what I think the benefits of blogging are for me. My first answer is "My blog is my form file." So, when a student comes into my office and asks for note ideas, or I'm preparing a course lecture on poison pills, or a new colleague comes by and asks about a particular doctrine, I'm pretty good at remembering that I (or Gordon, or Lisa, etc.) blogged on that once. Then, I find it on the blog, and there are my thoughts, with links, etc. (In transactional practice, one's form file is where you keep all your great agreements so you can cannibalize them later.)
But what if are old posts disappeared? This is something I never thought about until this morning when I participated in an academic research survey about bloggers' perceptions about digital preservation. I was asked a lot of questions that just stumped me. Do I archive my blog? Um, I don't know. Gordon, do I? Who do I think has the responsibility for this? Me? Typepad? Google? (I'm pretty sure it's not Google.) Did I ever have a different blog? Yes. Did I delete it? I don't remember. So, now I have one more thing to be neurotic about. Thanks.
Last week, the NYT Magazine ran a cover story by law professor Jeffrey Rosen on the perils of not being able to erase information on the Internet: will you ever be able to outrun the pictures from the 8th grade banquet? But there's also a reverse problem: some of us rely on the internet to retain copies of information for us. What I went to search my form file one day, and I found that Typepad had deleted everything over five years old? This was recently a topic of interest to those who upload photos to a service like Shutterfly, Snapfish or Kodak Gallery when Kodak announced it would require minimum purchases in order not to delete older photos. Many users realized they had no backup for the photos they uploaded to these services and could only download in low res or purchase pricey archive CDs to preserve their photos. (Kodak later changed its plans.)
Before Gordon and I joined forces to create the Glom, I had started a blog in 2004 called Biz Fems Speak, featuring a lot of other female corporate law professors that just didn't get off the ground. I never really thought about it until today, but I can't find it anywhere. I stopped paying the hosting fee, so I guess it just disappeared. I didn't expect Typepad or Google or anyone to archive it, so I'm not upset, just sort of surprised.
Anyway, I guess I better ask Gordon about this before I wake up someday to find my form file has been tossed!
I guess the first wave of the legal blogosphere is really over. My friend and colleague Larry Ribstein is shutting down his solo blog Ideoblog, which he started February 1, 2004, and moving to the group blog Truth on the Market. Larry's first archived post compared Howard Dean to the dot com bust. Ah, history!
Where the choices range across the academic spectrum, from feminist legal theory to constitutional law theory. I only wish that a tax option had been included.
I'm biased, but I'm also delighted to see that the Penn Program on Regulation has created RegBlog, a blog designed to get the word out on PPR work and regulatory developments more generally. I will contribute on occasion over there, and it is definitely one for your RSS feed. The Administrative Law Prof blog has more here.
Welcome to the blogosphere!