July 21, 2005
Ethics, Attribution & Blogging
Posted by Christine Hurt

[Note:  I noticed that while drafting, Will posted on the same subject.  I am continuing to publish my post because I like the irony of being preempted on my preemption post.]

Prof. Ribstein has a thought-provoking post on the ethics of attribution in writing blog posts.  He also links to the posting of an undergraduate paper on blogging ethics, and gives proper attribution to Prof. Solum for that link.  I've been thinking about the attribution angle for awhile, mostly out of interest in citation norms and discourse communities, but I'll leave that for another day.

Larry posits that before blogging on either an original thought, a minor news story, or a major news story, an ethical blogger should do something of a preemption check via Google.  This check would be more forgivable for the original thought, less so for the major news story.  I may be somewhat testy because I am "in medius opus" and am having to find attribution for thoughts such as "investing is risky."  However, I am a few thoughts on this subject; (1) if I have to do a preemption check every time I blog, I won't blog very often, so the law blogosphere may revert to law review-speed; (2) if I have to link to every other blogger that posted on a news article before me, then the law blogosphere may revert to hypertrophic law review footnoting-style; and (3) do I just have to check around in my "discourse community" or the entire blogosphere?

First, the anecdotes.  I think we've all posted on something and then someone post a little later (a few hours) or a lot later on the same thing without any attribution.  Does that blogger not read my blog as often as I thought?  Did that blogger read my post but think it was irrelevant and not mention-worthy?  These questions run through one's head.  Last week, Orin Kerr linked to an audio file of an amazingly incompetent oralist at the Seventh Circuit.  I had posted to that same file in March.  Did I get all snippy?  No.  Did additional people get some entertainment/education out of being directed to the file?  Certainly.  I didn't add much commentary in my post besides the link, so linking to me first would have been fairly superfluous.  If I see something on someone's blog, then I link to that blog, either substantively or in the shorthand "Tip to ______" style.

Likewise, this morning I posted on the Enron broadband trial.  I'm sure many bloggers blogged on that.  I just read two news accounts, and blogged.  If I had done a preemption check and found that 12 other bloggers had posted on it, would I have been bound to cite them all?  Larry posted on the same story a few hours later, citing to one blogger, but not all.  That seems reasonable.

So, my points (1) and (2) are self-explanatory here.  The speed and conciseness of the blogosphere will not permit bloggers to google every news story and cite to every blogger before him/her on that story.  What about point (3)?  In writing a law review article, we mainly look to our own literature.  In writing a law review article with an economics angle, I review the economic literature.  I also include news accounts when talking about specific companies, transactions, or financial trends.  I suppose that any "law & [blank]" paper surveys the [blank] literature to some extent, but probably not thoroughly.  To add texture, many legal articles add in cites from other disciplines.  In my blogging, would I just look to corporate law blogs?  Law blogs?  All blogs?

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