Blogging Ethics

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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15 Responses

  1. D. Sell the shares and put the money in an index fund. Not only have you solved the disclosure problem, but you also have a better investing strategy.

  2. Gerard says:

    How have those index funds been treating you over the past 10 years?

  3. B works for me. (I think if you own enough shares to influence the company you should disclose that too.)

    Sunlight, tra-la-la-la, and so on.

  4. Better than I’d have done if I picked stocks.

  5. PrometheeFeu says:

    I don’t think disclosure is necessary. If your arguments stand on their own, it doesn’t matter even if you are being paid to make them. Either they are good or they are not. The exception of course is if you attempt to leverage your own credibility to assert particular facts. In such a case, you should disclose, but only if you believe you might be subject to influence. That’s for the ethical question.

    But the more important question is really about maintaining your credibility as a scholar. In that sense, disclose, disclose, disclose. If you want people to trust you, you need to play with cards on the table. You really don’t want to have anyone think you were a shill for someone else.

  6. Shag from Brookline says:

    “Suppose I want to post about a legal issue that is relevant to a company in which I own shares.”

    How important is the legal issue separate and apart from your ownership of shares in the company? Would your analysis be negative or positive to the financial/economic situation of the company? Would your analysis be affected by such ownership? Would you as a personal economic matter sell the shares in anticipation of the impact of your analysis? Would you consider disclosure of ownership of the shares (which you would retain) if your analysis would be negative? Or would disclosure be made only if your analysis is positive?

  7. Brett Bellmore says:

    B or C. You’re a stock owner, not a fiduciary.

  8. Brian says:

    I think you really have a point with your statements here..

  9. A.J. Sutter says:

    Many scientific journals require that authors disclose relevant financial interests and other conflicts. Skeptics could argue that this is unnecessary, because if the results are reproducible (cf. “the arguments stand on their own”), why should it matter? Moreover, compliance hasn’t always been sterling, see, e.g. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2563288/. Nonetheless, the most reputable journals (Science, Nature, PNAS, etc.) don’t allow authors to be silent on the conflicts issue. Considering this practice, B seems to be the minimum you should do.

  10. Ken Arromdee says:

    I don’t think disclosure is necessary. If your arguments stand on their own, it doesn’t matter even if you are being paid to make them. Either they are good or they are not.

    This is true if the argument is strict logic. However, arguments often involve the weighing of evidence, either as part of the argument or implicitly in your choice of what evidence to use in the first place or even whether to make the argument at all. Weighing evidence is a matter of human judgment that can be affected by a conflict of interest, and the audience needs to know that conflict of interest in order to be able to judge your argument.

  11. Dave Hoffman says:

    I’m with James.

  12. PrometheeFeu says:

    @Ken Arromdee:

    I don’t see why the necessity of human judgement would prevent the reader from evaluating your weighing of evidence. As long as the reader has access to the same evidence as you did, they can look at it and independently conclude whether in their opinion you weighed it appropriately or not.

    The conflict of interest is really only problematic if you are saying something that cannot be independently evaluated by your reader. In that case, you are resting your case on your own credibility and your financial conflict of interest definitely is of import to your credibility.

  13. Ken Arromdee says:

    “I picked this piece of evidence and I didn’t even mention this piece of evidence” is something that can’t be independently evaluated by my reader.

  14. A.J. Sutter says:

    Further to Ken’s point about judgment and Promethee’s response: The persuasiveness of an argument doesn’t depend only on the substance of the argument, but on many other factors. Among them is who’s speaking. The opinion of a law professor will usually carry more weight than that of a 2L, or even of many practitioners. This is one reason why, e.g., more law professors than 2Ls or practitioners testify before Congress on various matters (rightly or wrongly).

    Law differs from science and some other areas in that very often all of the raw materials for a law-based (as opposed to fact-based) argument, such as about how to construe a statute, are available to everyone. However, not everyone will have invested as much time to study the relevant law, even assuming they know where to find it. The main reason for the respect of law professors’ opinions is a belief that the professor is both an expert and relatively disinterested. If the lack of disinterest — i.e., a conflict of interest — isn’t disclosed, then this weighting factor can’t be independently evaluated by the reader.

    Suppose someone like Gerard writes a post advocating some policy that touches on some aspect of admiralty law. That’s a field about which I haven’t yet even read the Nutshell. In principle, I could spend months or years studying admiralty law in order to evaluate whether the post is a crock. But that’s not going to happen; and even if I did embark on such study, Congress might act before I could raise my voice authoritatively. (Nor can I rely on there being authoritative criticism from blog commenters, since not only do many commenters write anonymously or have black-box credentials, but plenty of posts don’t have any comments at all.) As a practical matter, I will need to take the writer’s word for it about some things, perhaps including his selection of which statutes to highlight, which issues are relevant, etc. Now suppose the post’s author is getting paid by some Liberian, Chinese, etc. shipping line — that could certainly be an important fact to consider before I write my Congressperson telling her to take the post’s advice, or before she acts on it if she reads it on her own.

  15. PrometheeFeu says:

    @Ken Arromdee:

    That’s a very good point and one which would come up often. (In fact, it probably is the vast majority of cases) In that case, I think the speaker should consider whether the conflict of interest is likely to have a material impact on those decisions. If that is the case, disclosure is the ethical thing to do.

    @A.J. Sutter:

    I would say that the belief that a law professor is relatively disinterested in their field of study is a poor assumption to make. At the very least, they have their pet theories which they will favor for varieties of reasons. (money being just one possibility) I don’t think it is the ethical burden of the law professor to compensate for people making poor assumptions. It is surely virtuous, but supererogatory.