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More On Serendipitous Research

I've been giving more thought to my earlier post describing my alter ego as a stack rat. I noted that one downside to the digitization of libraries is that researchers will have fewer serendipitous moments. When one searches out a book with a given call number, he or she almost inevitably confronts related (or simply interesting) volumes that live nearby. I can think of many times when this process led me to useful books that I'd never heard of before. As more and more research is done online in our offices (or perhaps in our den/guest room - you know, the rooms where Barbies and My Little Ponies inexplicably like to congregate despite instructions to the contrary), we no longer happen upon these accidental wonders.

But things are bound to improve. With digitization comes the potential for new serendipities. It's all in the hypertext. Think about Lexis and Westlaw. When I research a case, a large portion of an opinion's references can be found with a click. Most commonly, these links take us to cases and articles. But what if their materials also included weblinks?

Of course, a large portion of scholarship outside of law (particularly articles) is also available digitally through JSTOR, Academic Search Premier, and the like. The problem is that, for now, these materals don't contain hyperlinks. These PDF documents look nice, but they are digital dead ends. But what if these documents also included hypertext links? And what if all the new digital books did as well?

Imagine the fun! Every time I came upon an interesting citation, I could charge off into a fresh diversion. One curious quote, one odd source, and with a single mouse click - BAM - I am back in the deepest corner of the stacks exploring unexpected treasures. We're not there yet. We're actually in an unfortunate middle period. Increasingly we abandon the physical library, doing our research at our computer. Yet this wonderful technology has not advanced quite far enough to provide us with new serendipitous moments. But for those people who dream of the day that they can do all their research without ever moving their sedentary buttocks, buck up! Serendipity awaits.

Posted by Dan_Filler at 12:52 PM | Comments (2) | TrackBack

Making Law Professors Happy

Michael Livingston (Camden-Rutgers) has a relatively new blog that I just came across. Last month, he offered an interesting set of observations on why law professors, who have objectively wonderful jobs, are often so darn nervous and angsty. Here is a taste:

The answer is provided by the theory: they behave in this manner because they are doomed to compete, without anyone else to share the responsibility, in an activity in which they can never know whether they have succeeded or even what succeeding might mean.

This makes the world I live in look quite grim, and I don't know that I buy the descriptive claim. Are professors any more unhappy than doctors, accountants, GM workers, or real lawyers? I doubt it - although Livingston's recent post on affirmative action sheds some light on issues he finds alienating. The payoff from his claim is provocative: he offers a novel defense of the tenure system, based on relieving of the crisis caused by competing against yourself in a world without measures:

Tenure, for example, which would no longer be seen as a form of protectionism for incompetent academics, but a necessary countermeasure to prevent the suffering from becoming still more pronounced.

Ok. But if that is the goal tenure is serving, couldn't we accomplish it more efficiently by, say, giving professors grades? Does it really matter that such grades will have no connection to objective measures? (We all went to law school, and are used to such things.) As so often happens, I'm reminded of a terrific Simpson's episode, involving a teacher's strike. I strongly empathize with Lisa's response, expressed in a conversation with Marge:

Lisa: Grade me...look at me...evaluate and rank me! Oh, I'm good, good, good, and oh so smart! Grade me!

[Marge scribbles an A on a piece of paper]

[Lisa walks off, muttering crazily and sighing]

Posted by hoffman at 12:01 AM | Comments (7) | TrackBack

Should Professors Ban Laptops in Class?

Orin Kerr writes about June Entman, a University of Memphis Law School professor who has decided to ban laptop computers in her class. While certainly of interest to law students and profesors, I'm a bit surprised that the AP thought that this was a national news story. [I should ban something from my classes and make national news, too.]

Anyway, the issue is interesting, and Orin posts an email he received from Professor Entman explaining her rationale for the policy. She observes that when students use laptops, they "focus primarily on transcribing everything said," and don't develop good note-taking habits. She also explains that the "wall of vertical screens" prevents her from seeing her students' faces and that keystroke noise is a distraction.

An interesting discussion has ensued on Orin's post. I have a comment there, disagreeing with Professor Entman's policy. I will give students advice on good study and note-taking habits, but in the end, it is for the students to decide for themselves. Students need to learn to make their own choices and to live with the consequences of those choices. I don't think that turning back the clock and taking students' laptops away will help them. These are the tools we use today, and I think that it is better to teach students how to more effectively use today's technology than to take it away. As I concluded in my comment:

There are many things I’d like to force my students to do. I’d like to force them to be prepared, to study diligently throughout the semester, and so on. I tell them all this, but in the end, I leave the choice to them. Otherwise, I begin to feel too much like parent, and I don’t always know what’s best for each student.

Will students be better off without laptops? I doubt it. Most won’t suddenly learn good habits; they’ll just resent the no laptop policy.

To keep the conversation in one place, please comment in Orin's post (if he'll allow you to).

Posted by Daniel Solove at 06:50 PM | Comments (11) | TrackBack

Obit

James O. Freedman was a law professor and dean at Penn, and a president of Iowa and Dartmouth. Those of us with roots in the hinterland remember him as an Iowan of statewide popularity, who - with the assistance of a southern-fried football coach - turned a Big Ten also-ran into a big-time college athletic powerhouse. I always suspected that Freedman was delighted to leave Iowa for someplace with a smaller football stadium. He retired from Dartmouth to Cambridge, Mass.

Posted by David_Zaring at 03:50 PM | Comments (1) | TrackBack

Blog Block

I've been gone awhile so I thought I'd at least pop in to say hello. It seems I've discovered a new (but unsurprising) aspect to my personality: I get blog block. When I'm writing every day, I find I have more and more to say. But when I take several days off, I lose the inspiration. Then I forget how to get it back. I'm sure other bloggers have this problem (which explains why it helps to have a gang of co-bloggers.) In the hopes that others might share their recovery techniques, I thought I'd describe how I've attempted to get back in the saddle. I spent several hours this evening reading other blogs. (I found Law and Letters to be most helpful. Belle offers a particularly nice mix of academics and introspection.) I read the Supreme Court's opinion-o-the-day (thankfully, a criminal procedure matter.) I waited for a fabulous new idea, but none was forthcoming. I ate M&M's, left over from Halloween, and fortune cookies. (There really are mysteries in the pantry!) And I did what any person in my shoes would do. I attempted to go to sleep.

Thanks to the desperate cries of my sleeping baby daughter, rest was not an option. So I trudged back to the computer with one small objective: to acknowledge that the Supreme Court done good yesterday. In the Georgia v. Randolph decision, a five vote majority limited the ability of police to search a house when two people are at the door. In this case, a matter involving an estranged married couple, the wife granted consent to search while the husband refused entry. The officers acted on the consent of the wife and ignored the husband. They found drugs inside.

As usual, Orin Kerr offers a very thoughtful analysis and taxonomy of the opinions. This is a very pleasing opinion to me. First off, it is in accord with my criminal law libertarian values. I operate on the assumption that police ought not be breaching the privacy of a person's home except in the narrowest circumstances. But it also makes me happy because Breyer did not take Roberts' bait and conclude that the need for entry in cases of domestic violence requires a degradation of personal privacy under the Fourth Amendment. In the past, Breyer has shown a notable lack of interest in a robust Fourth Amendment. (I'm thinking of his approval of suspicionless drug testing of students in non-athletic extracurricular activities in Board of Education v. Earls.) In addition, the voting alignment suggests that Kennedy will continue to operate independently, nothwithstanding the arrival of a new true-believer.

This case may be fairly consequential, but in a different way than Roberts suggests. As a public defender, I discovered that a surprising number of people call the police to manipulate friends, neighbors, and loved ones. To be sure, most 911 calls are legit. But sometimes a call to the police is simply punishment for someone else's perceived misconduct. "You cheated on me? Fine. I'll call the cops." This decision may limit the effectiveness of these calls. Or perhaps KipEsquire is right: the police may manipulate circumstance to move the objecting resident away from the door.

I hope the blog block has been broken. Perhaps tomorrow, when I wake up, I'll have a genuine epiphany. Or maybe I'll just update the lateral moves list!

Posted by Dan_Filler at 01:20 AM | Comments (3) | TrackBack

Three Interesting Things About The New Source Review Decision

The DC Circuit’s invalidation of EPA’s Clean Air Act regulations exempting certain equipment replacements from the new source review process led the Times last weekend, and one look at the number of lawyers who participated in the appeal tells you that a lot of parties thought the case was important. What happened and why should you care?

Very roughly, if you build a new source of air pollution, you have to get a permit to pollute – this is the so-called new source review process. However, if you’re replacing equipment on an old pollution source, you may be able to avoid new source review – or so thought EPA, which passed a rule providing that “the replacement of components with identical or functionally equivalent components that do not exceed 20% of the replacement value of the process unit and does not change its basic design parameters is not a change” triggering new source review. The court held that EPA’s reg was inconsistent with the plain language of the CAA, which, it held, requires new source review upon any modification of the old source that increases pollution. As the court held, “Congress defined ‘modification’ in terms of emission increases, but” EPA’s proposed reg “would allow equipment replacements resulting in non-de minimis emission increases to avoid” the permitting process.

1. This panel included Judge Janice Rogers Brown, the controversial and only recently confirmed libertarian. Perhaps Brown’s hostility to regulators in general explained her hostility to this business friendly interpretation of a congressional directive … but perhaps also this was an easy textual case, or she was persuaded by the brilliant judge who wrote the opinion, Judith Rogers (a judge who has, in the past, hired some law clerks I greatly admire).
2. As is often the case these days, the lineup was states + environmental groups v. federal regulators + industry. I’ve been impressed for a while by the number of legal foot soldiers that environmental groups have gotten out of state attorney general offices.
3. The Times notes that the arena of Clean Air Act combat has shifted from Congress, which wrote an incredibly detailed and quite constraining statute (a very different statute than those with New Deal era broad grants of regulatory authority) to EPA and the courts, who are interpreting that statute in a context where legislative review is unlikely - “there has been no real movement in that direction in recent years.”

Posted by David_Zaring at 02:19 PM | Comments (2) | TrackBack

If anything, they should be rewarded

I'm not a particularly ardent fan of the U.K. version of The Office, but I've seen a few bits of it here and there, and they can be pretty funny. One of the classic exchanges is between David and Gareth, on the subject of, well, boobs:

[David is mocking a porn site, and reads off of the computer screen]
David: " 'Dutch girls must be punished for having big boobs.' Now you do not punish someone, Dutch or otherwise, for having big boobs."
Gareth: "If anything they should be rewarded."
David: "They should be equal."
Gareth: "Women are equal."
David: "I've always said that."

With that background, one can fully appreciate this recent news story: "A dancer has launched a $100 million lawsuit against the American musical Movin' Out, claiming she was emotionally abused and lost her job because her breasts grew too large for her costume." Yes, it turns out that, according to the lawsuit, some people are punished for having big boobs. Best of all, however, is her lawyer's statement to the press, in the same newsclip: "In the ballet world, obviously, people are small-breasted. On Broadway, what happened should be an attribute."

Or in other words, "if anything, they should be rewarded."

Posted by Kaimipono at 01:54 PM | Comments (3) | TrackBack

Single-Payer Music Care?

Les bon temps roulez! It appears the French legislature has picked up on the conversation started by one of Christine Hurt’s posts here a few weeks ago on the iPod, and wants to do something about Apple’s iTunes lockout of rival music sellers and players. The IP blogosphere is abuzz over the move, which directly challenges Apple’s aggressive efforts to leverage dominance in the portable-player market into a monopoly over digital music retailing.

Libertarians are likely to applaud moves like this, as this Cato Institute Report demonstrates. But I want to push the dialogue in an even more market-oriented direction. Since we’re thinking big here, why don't consumers take some self-help measures? The recording industry is extraordinarily concentrated, provoking antitrust investigations left and right. So why don’t consumers form buyers’ cooperatives? If the “big four” own 90% of the music, why don’t consumers form four or so buyers’ groups that will negotiate access to music? Each would manage a library with about one-fourth of recordings. That seems to be the model behind Europe’s efforts to hold down health care costs—have one or a few big players form a monopsony (or oligopsony?), and bargain down the price.

Now I’m not saying that’s always the best solution for health care—as Cutler, DiMasi, and others have noted, a lot of innovation is funded by the fragmented buying pool in the U.S. system. But while I care a lot about innovation in health care, I’m a bit agnostic about innovation in music. Can we reliably say that the whole lot of music composed and performed after 1980 is worth more than J.S. Bach’s oeuvre? I don’t know. So I don’t care if “single-payer music care” ends up reducing revenues to the culture industries. Admittedly, in the end, I think it would actually help those industries, as William Fisher so skillfully documents in his Promises to Keep. But that’s another post…

Posted by Frank_Pasquale at 09:45 AM | Comments (3) | TrackBack

SLUSA, SCOTUS, and Unintended Consequences

Yesterday's unanimous securities opinion in Merrill Lynch v. Dabit was unsurprising, but somewhat interesting. [More here on the same topic from Ribstein.] Some background. In 1975, the Court (in Blue Chip Stamps v. Manor Drugs [BCS],) held that private parties lack standing under the '33 and '34 Securities Acts to bring causes of action for fraud that fails to result in either the purchase or sale of securities. The Court reasoned that the statutory hook, "in connection with purchase or sale," should not be read to mean merely holding on to securities. Chief Justice Rehnquist’s opinion evinced considerable fear of encouraging "vexatious litigation": his decision explicitly rested on prudential concerns.

In Merrill Lynch, the Court considered this same "in connection with language" in a different statute, the Securities Litigation Uniform Standards Act of 1998 (SLUSA). SLUSA was passed (according to the Court) to deal with the "unintended consequence" of the allegedly onerous Private Securities Litigation Reform Act of 1995: forum shopping by the class action securities bar.* SLUSA, in relevant part, thus preempted state class actions "by any private party alleging [fraud...] in connection with the purchase or sale of a covered security..."].

The Second Circuit below had reasoned that Congress must have intended this "in connection with" requirement as a gloss on BCS. Thus, it held that state securities class actions that remained in the space left open by BCS survived SLUSA as well.

Not so fast, said Justice Stevens. Because BCS was just a standing decision, not flowing from the "text of Rule 10b-5," and because more recent decisions found liability in the absence of purchase or sale, and because the SEC has long advanced this broad interpretation of the "in connection with" requirement, Justice Stevens held that SLUSA preempts even state court class actions that couldn’t be brought in federal court.

Why is this interesting? For at least three reasons.

1. Justice Stevens holds open (in n. 13), but broadly hints at, the possibility that BCS may itself not survive reconsideration in a appropriate case. One of the equities supporting Chief Justice Rehnquist’s standing analysis in BCS was the availability of state law causes of action; moreover, as Justice Stevens argued in Merrill, the general “in connection with” analysis in BCS has been undermined by later cases' readings of the in connection with requirement. Thus, at least on a first read through, I think BCS is ripe for reversal. This would be a big deal, opening the door for a major expansion of federal securities liability. Now that is an unintended consequence.**

2. The Court suggests (on p. 16 of the slip opinion) that the federalism concerns normally at play in preemption analyses should have less force where "the actual assertion" of the state cause of action was moribund, instead of "a historically entrenched state-law remedy." This part of the analysis is in considerable tension with Justice Stevens’ assertion that permitting claims like this would create "wasteful, duplicative litigation." If, in the thirty years after BCS most plaintiffs did not bring state law causes of action for holder claims, and almost none brought them between 1995 (the PSLRA) and 1998 (SLUSA), why would they start now? But either way, it is (to me) interesting that the strength of a state's federal(ist) interest should depend not on its inherent authority to regulate corporate governance issues, but on how much plaintiffs have taken advantage of its laws. If a state wants to push back against federal regulation, does that mean it ought to be encouraging plaintiffs to file in state court? [Today, one day only, a discount on filing fees in Philadelphia County! File one, get one free!]

3. The Court suggests that the presumption against preemption doesn't have as much force (p. 15) where preemption is not total, and individual plaintiff causes of action remain even in the absence of a class mechanism. This immediately suggests (to me) that defense attorneys in other contexts (mass tort!) ought to consider pushing congress for such class-preemption bills using relatively vague preemption language. The Court has now told us that it won't look behind statutory language to find the rule's real, practically-remedy-denying, effect.

Still interested? Check out Jennifer O'Hare's article on this very topic. Empirical work by Richard Painter on the need for SLUSA in the first place is here.

*[Note: Justice Steven's seeming surprise at this tactic is itself strange. What would he have expected plaintiffs to do? Go home? Some bad consequences are so proximate that legal authorities should be presumed to have not minded their occurring, or even intended them. Like John Yoo’s torture memo and Abu Ghraib.]

**[See Note 1.]

Posted by hoffman at 01:00 AM | Comments (11) | TrackBack

Reading List

There’s a lot of information out there, but lots to learn. As Judge Posner reminds us, “intelligence data are collected” among other ways, “by scrutiny of publicly available ... materials such as newspapers, magazines, the Web, and scientific and technical journals.” We already know about Liptak, Glater, Lithwick, and Leiter. Who else can provide us with crucial open source intel? I’m reading this and this, to keep up with the kids. I’m enjoying the new law beat lady's work in the Observer. And jd2b is my one stop source for a random collection of press releases from law schools. When they get an editor, that site is gonna be huge.

Posted by David_Zaring at 01:08 PM | Comments (0) | TrackBack

The Life and Times of Howard Bashman

3L Epiphany has a very interesting post about the background of Howard Bashman, the appellate lawyer who produces the excellent How Appealing blog.

Posted by Daniel Solove at 02:53 AM | Comments (0) | TrackBack

Judging Securities Law

Steve Bainbridge has a new post up on the Supreme Court's securities law "jurisprudence." He seeks to rebut the arguments contained in Mark Loewenstein's draft article (on SSRN here) to the effect that the Supreme Court's "much-heralded 'new federalism' philosophy of the Supreme Court is not a factor in securities law cases or in business cases generally." I've just downloaded the paper (but haven't yet read it), so my reactions here are just to Bainbridge's argument.

Basically, Bainbridge says that the Supreme Court should not be expected to demonstrate a coherent federalist philosophy in its securities cases. Indeed, expecting any coherent philosophy would be a surprise: (a) such cases come before the court rarely because the court believes them to be boring and therefore not cert-worthy; and therefore (b) the court doesn't get the repeat-player experience or know how that would polish their work . (This summary flows from Steve's article, co-authored with Mitu Gulati, on the bounded rationality of securities decision making. I have recently criticized this view, arguing that securities law, at least in the lower federal courts, does "push" a coherent model of "good" shareholder behavior.)

However, I do agree that the Supreme Court is institutionally pretty weakly positioned to govern federal securities law. This institutional weakness arises, however, not just out of a lack of interest by the justices. Supreme Court clerks and Supreme Court practitioners both are traditionally conlaw folks, not experts in behavioral finance, comparative financial regulation and accounting, state blue sky laws, or any of the other hot issues likely to be litigated before the court in the next decade. Even "easy" issues, like materiality, can thus be made into a mess. See Basic v. Levinson (sheesh).

But criticisms of the Court's work in securities cases may give its work in constitutional, criminal, tax and federal statutory cases too much credit. It is my experience, listening to colleagues who live with (i.e., teach) these cases on a daily basis, that the problems of incoherence, inattention to future consequences, lack of expertise in the foundational material, and triumph of rhetoric over craft that corporate scholars see in the Court's work are quite common. Indeed, the federalism rhetoric that Bainbridge discusses is itself an example of a missing coherence, at least according to folks like Randy Barnett. So, what makes securities law exceptional? Is it just that the cases have more at stake in dollar terms, and are not, on first glance, as politically charged?

Posted by hoffman at 12:30 AM | Comments (4) | TrackBack

A Taxonomy of Privacy

My article, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477 (2006), has recently been published. I have replaced an earlier draft of the article from over a year ago on SSRN with a copy of the final published version. This article is my attempt to provide a framework for understanding the concept of privacy. A diagram of my framework is above. From the abstract:

Privacy is a concept in disarray. Nobody can articulate what it means. As one commentator has observed, privacy suffers from “an embarrassment of meanings.” Privacy is far too vague a concept to guide adjudication and lawmaking, as abstract incantations of the importance of “privacy” do not fare well when pitted against more concretely stated countervailing interests.

In 1960, the famous torts scholar William Prosser attempted to make sense of the landscape of privacy law by identifying four different interests. But Prosser focused only on tort law, and the law of information privacy is significantly more vast and complex, extending to Fourth Amendment law, the constitutional right to information privacy, evidentiary privileges, dozens of federal privacy statutes, and hundreds of state statutes. Moreover, Prosser wrote over 40 years ago, and new technologies have given rise to a panoply of new privacy harms.

A new taxonomy to understand privacy violations is thus sorely needed. This Article develops a taxonomy to identify privacy problems in a comprehensive and concrete manner. It endeavors to guide the law toward a more coherent understanding of privacy and to serve as a framework for the future development of the field of privacy law.

This article is my latest stab at attempting to provide a coherent and comprehensive new understanding of the concept of privacy. In an earlier article, Conceptualizing Privacy, 90 Cal. L. Rev. 1087 (2002), I critiqued the numerous attempts by many others to articulate the concept of privacy. The gist of my criticism was that most attempts to conceptualize privacy go astray because they attempt to find a common denominator in all things we deem as implicating "privacy." I suggested that privacy must be understood contextually, and that it consists of a multitude of different yet related things. But I left open a very important question -- just what are those different yet related things? My new article, A Taxonomy of Privacy, builds on this argument and provides a taxonomy of what these different yet related things are.

Posted by Daniel Solove at 12:17 AM | Comments (1) | TrackBack

The East Meets Easterly

The Times yesterday, per the extremely generous Virginia Postrel, reviewed the latest critique of international development assistance, White Man’s Burden, by William Easterly. The genre isn’t a new one – writers have long savaged the World Bank for being bureaucratic, the West for being stingy, and political leaders of the developing world for being corrupt. If you define the whither-development genre broadly enough, you could throw in the much-noticed recent work of economists like Glaeser & Shleifer, and perhaps even law professors like Hansmann & Kraakman, on the keys for the development of prosperity-creating markets in the west, as opposed to elsewhere (to oversimplify, it’s independent courts and asset shielding aspects of the corporate form, respectively).

In international trade, a subject that I teach, the so-called Doha round of talks is explicitly focused on creating a trade deal that will help to spur development. Easterly appears to be sympathetic to a “trade not aid” approach to international development; he thinks that development assistance must be paired with incentives – that anti-malarial drugs should be sold, rather than given away. But he also seems to be enamored of business jargon: aid givers should be “searchers,” and not “planners,” and should avoid one-size-fits-all recommendations.

I don’t precisely know what “searching” means, but I do know recognizing the complexity of difficult problems can, if done too vigorously, deprive the people who want to solve those problems of the intellectual means – simplification, extrapolation, and theory – that they may need to solve them. As Postrel says, “extracting lessons from experience is quite compatible with decentralized searching. Businesses in radically different industries learn from one another. Searching includes discovering the day's best practices. Not every situation is unique.”

Posted by David_Zaring at 09:26 AM | Comments (2) | TrackBack

The Future of Law Professor Blogging: A Reply to Dan Markel

Over at PrawfsBlawg, Dan Markel writes:

Solove counts about 235 law professors who blog now, noting a 16% increase over the last five months in the number of profs who blog now. He also notes that women are roughly 25% of the prawf blawging population.

To my mind, these stats seem inflated on a couple dimensions. Don't get me wrong: I'm certain they are accurate in that Dan S. has dutifully reported all the information reasonably available to him. But I fear they are misleading in that various people (men and women) who are listed as bloggers are barely blogging, and certain blogs have relatively very few posts, and usually those blogs, and many others on the list, have very few readers.

Markel then observes:

[W]e should be cautious and not try to overstate the amount of enthusiasm out there for prawf blawging. It's a wonderful thing that more people are writing for audiences beyond law reviews and opeds. And for the most part, I am bullish on prawf blawging's future. But the growth of blogging by law profs is not, I submit, as robust as an uncritical view of the Solove Census suggests.

I agree with a lot of what Markel writes. In my census, I do not look at the frequency at which a law professor blogs, so ones who post only once in a blue moon are still counted. I adopt this policy because I don't want to create some rule for how frequently one has to post to be deemed an "active" blogger. Nor do I have time to check to see how often folks are blogging. So Markel is right -- my census is limited in that it is basically a head count.

I detect an underlying assumption in Markel's argument -- that the enthusiasm for law professor blogging is tied to the number of bloggers. I don't agree with this assumption. Quantity does not equal quality. At least for me, there are only about 10 to 20 law professor blogs I read with any regularity.

So how is enthusiasm for blogging to be measured? I don't know the answer to this yet. I believe that law professor blogging has a very good future -- but I'm not sure that its future should be measured in numbers. The future depends upon the quality of blogging, and that is something my census cannot measure.

Markel also notes:

If the "true" numbers of vigorous prawf blawgers increase, then it obviously becomes more difficult to prevent fragmentation. Isn't there a loss to our profession and academic community if so much blogging occurs that not everyone in our guild can follow the same daily conversations? Or am I talking like an old oligopolist

This is an interesting point, although I disagree that a lot of fragmentation will occur. Actually, I believe that the growth in the number of law professor bloggers will slow down in the future, and that the law professor blogosphere might eventually even contract a bit. In any event, only a limited number of law professor blogs have developed a significant readership and influence. I doubt that this number will dramatically increase. People have limited attention spans and not enough time to read every blog with regularity. Thus, my bet is that there will be some very widely read blogs in the legal academy and some that are popular among particular fields. And the vast remainder will remain very tiny and limited in their audience.

I wonder how many law professors will want to continue to blog if their audience remains very small. At least for me, I would find it very hard blogging to just a small handful of readers. I like blogging because it is a way to share my ideas with a wider audience. Some blog as a way to express themselves, but I can do this in other media such as law review articles. I blog because it is a way to reach out to a broader audience. How many law professors will continue to blog to a largely empty room when blogging consumes so much time? I don't purport to know the answer, but my guess is that low readership will dampen a law professor's enthusiasm for devoting the significant time and effort to blog with any degree of regularity.

Right now, a lot of law professors are trying out blogging and seeing if they like it. Some do it well. Some don't. Some enjoy it and can integrate it into their lives. Others find it too time-consuming and taper off or quit. In the future, we'll see who stays in the blogosphere and who goes. Like nearly everything else, the law professor blogosphere will sort itself out, and some bloggers will gain prominence and be widely read and others won't. If I'm correct in this, then perhaps the law professor blogosphere will gel around a few blogs, and there may be even less fragmentation than there is now.

Posted by Daniel Solove at 01:37 AM | Comments (1) | TrackBack

The right to life, liberty, and a favorable ranking

Google uses its algorithms to set the Page Rank of websites. Anyone with a google toolbar can immediately see that Concurring Opinions has a pagerank of 5. Pageranks are determined based on Google's algorithms, which are supposed to related to a site's popularity (and to some degree, to longevity, as links build up). The system seems to work pretty well. Volokh.com has a pagerank of 7; the brand-new Orinkerr.com has a pagerank of 0 at present, but will doubtless climb the pagerank . . er, ranks . . . as it develops a track record of links.

Pageranks are more than just bragging rights, however. They affect how one's site is listed in search results; this means dollars. And so we see this lawsuit:

A parental advice Internet site has sued Google Inc., charging it unfairly deprived the company of customers by downgrading its search-result ranking without reason or warning. . . . KinderStart charges that Google without warning in March 2005 penalized the site in its search rankings, sparking a "cataclysmic" 70 percent fall in its audience -- and a resulting 80 percent decline in revenue.

It seems problematic to suggest any right to a particular rank from a third-party ranking service. After all, there's no contractual relationship here. And torts, like interference with business relationships, seem like a real stretch. Google isn't a common carrier or anything else; Google is a third party, which happens to rank websites.

This isn't such an unusual activity; entities create rankings all the time. If we chose to do so, we could rank something here at Co-Op -- law blogs, perhaps -- and I don't think that we would have a responsibility to any of the entities we ranked. If our (hypothetical and non-existent) rankings listed Volokh.com at #1 and Conglomerate at #10, I don't think that Gordon Smith could sue us -- even if those rankings drove more traffic from Co-Op to Volokh than they did from Co-Op to Conglomerate. After all, we have no contract with any of them. (Similarly, if U.S. News lowers the rank of my law school, I don't think that I've got an action against them.)

But I'd love to hear otherwise. And I'm ready to adapt with the times, if needed. I fact, I've got a complaint against Eugene Volokh all ready to go -- you see, I don't think he's been listing Co-Op high enough up on his blogroll . . .

Posted by Kaimipono at 11:21 PM | Comments (2) | TrackBack