The To-Be-Blogged Pile

As the semester draws to a close, I'll be adding a couple features to my blogging here. First, there's always a big pile of stuff each week I'd like to blog on, but don't get around to. So I'll just post links to the articles, ala Tyler Cowen. Second, I'll be trying to do a series on art & politics this season. Having lamented the press repeatedly, I think I owe it to readers to comment on people who are thinking more creatively about the political scene. . . including Kenneth Tin-Kin Hung, Timothy Donnelly, MIA, and Paul Chan. Without further adieu:

1. Have a tough time memorizing things? Check out this software program by Piotr Wozniak (which I'm definitely consulting if I try to re-learn Spanish).

2. Patrick S. O'Donnell both comments incisively on the food crisis and rounds up posts from around the blawgosphere. O'Donnell and Paul Horwitz have an interesting discussion on sustainability here. My own take would begin by comparing an article on the new living standards of very poor persons, and one on a "Club Med for Dogs."

3. China's new weapon: Low executive pay. Over to you, Todd Henderson.

4. Yale U. Press leads the way in opening access to books on internet topics. [Full disclosure: they do advertise here.]

Have a great weekend.

Posted by Frank Pasquale at 04:32 PM | Comments (0) | TrackBack

Brazil: Bye, Bye Wordpress

Apparently a Brazilian court has ordered all ISPs to block WordPress because one site on the blogging platform may have defamed a noted attorney there. I can't read Portuguese, so I can't give the full background of the story, but my contact Marcel Leonardi thinks the case will cause serious problems for bloggers in Brazil. This strikes me as the mother of all overinclusive (and ineffective) remedies, but as Jonathan Zittrain reminds us, a totally untrammeled internet is likely to provoke many blunt responses.

UPDATE: Here is Leonardi's take:

The story does not mention the address of the specific blog . . . but my contacts have already found out the problem - the blog was created by some unknown party and it was offensive to . . . one of the most famous . . . .attorneys in Brazil. . . . What saddens me the most is that some people . . . think this is an acceptable solution for defamation on the Internet - muting millions of voices because of one bad apple.

Posted by Frank Pasquale at 07:28 PM | Comments (1) | TrackBack

Law Professor Blog Rankings

Since the US News rankings are so last week, Paul Caron has satiated our ranking hunger by updating his law professor blog rankings based on visitor traffic. Top 10 include: (1) Instapundit; (2) Hugh Hewitt; (3) Volokh Conspiracy; (4) Althouse; (5) Leiter Reports: Philosophy; (6) Patently-O; (7) TaxProf Blog; (8) Balkinization; (9) Concurring Opinions; (10) Sentencing Law and Policy.

We are very proud to say that we have retained our ranking of 9th from the previous rankings. We have done this by increasing the volumes to our library, ensuring that our readers have an average LSAT of 168, and ensuring that 100% of our guest bloggers remain employed after completing their guest visits. But the competition is fierce, so we depend upon your generous support. Visit us frequently. Tell your friends about us. And, of course, big financial donations will be warmly accepted. For a donation of $100K or more, Frank Pasquale will be the [Your Name] Distinguished Permablogger of Law. And for a donation of $200K or more, he'll blog about how the US health care system is working just fine.

Posted by Daniel J. Solove at 10:53 PM | Comments (1) | TrackBack

Columbia Law Review, Volume 108 Issue 2 (March 2008)

Columbia Law Review, Volume 108 Issue 2 (March 2008)

Articles
The Irony of Judicial Elections
David E. Pozen

Taking Care of Treaties
Edward T. Swaine

Notes
Conditional Preemption, Commandeering, and the Values of Cooperative Federalism: An Analysis of Section 216 of EPAct

A Not Intractable Problem: Reasonable Certainty, Tractebel, and the Problem of Damages for Anticipatory Breach of a Long Term Contract in a Thin Market

Essay
Standing and the Precautionary Principle
Jonathan Remy Nash

Posted by Columbia Law Review at 11:13 AM | Comments (0) | TrackBack

A New Blog

Welcome to the blogosphere Commercial Law Blog! The opening posts include the history of commercial law, Starbucks, and the morality of trade. Good stuff.

Posted by Nate Oman at 10:05 AM | Comments (0) | TrackBack

Tips on Writing for Tips

There's so much free content online that it's often hard for me to justify buying magazines. Critics like William Skidelsky suggest that the free blogosphere is leading to the slow strangulation of serious book reviewing. But I think the two can coexist--and I'm more likely to support the print publications that support the free blogosphere.

For example, I recently subscribed to two print publications (The Atlantic and Bookforum). I did so less to purchase information than to thank each. Here's a few reasons why I think extending the Radiohead model to print might work.

Cheers

As for Bookforum, I'd never seen a print copy of their publication, and I was wary about buying it even when I heard about it online. But when I found they had the enormous good sense to sponsor Alfredo Perez's blog (formerly known as politilcaltheory.info), I wanted to support them in some way. Perez has an uncanny ability to tie together disparate sources of information from all over the web into loosely themed posts. Sometimes there's no theme at all, but every day he comes up with links to hidden gems.

The Atlantic is also supporting a group of bloggers, some very good. Furthermore, the magazine has thrown open some archive vaults dating all the way back to 1857. This is a real national treasure, and I'm glad the proprietors of the magazine decided to go for more of an advertising-based model to support it (rather than try to squeeze out revenues dollar-by-dollar for individual article downloads, ala The Economist).

Jeers

So now that I've praised two publications for their digi-friendliness, let me single out another two that have driven me away from the "pay printosphere" and toward free online publications.

First, though the New Yorker has lots of good content online, woe to anyone who tries to purchase its comprehensive collection of digitized back issues. I got this as a gift last year, and I've yet to extract a single article from this DRM-encumbered nightmare. I've tried it on three different computers, and was defeated every time. I'm sure everything's on the 8 DVD's somewhere, but the whole process has led me to really resent the magazine.

Second, though I find a magazine like Harper's more edgy and interesting than the Atlantic, I'll be linking to the latter a lot more because of its openness. Even for subscribers, Harper's forces you to download pdf's of articles in order to access them. . . and sometimes the text is grainy and hard to read. There's no way for me to provide blog readers with the full text of what I'm quoting.

Conclusions

This may be descending into "what I had for breakfast" blogging, but I think there are some generalizable conclusions. For thoughtful outlets of opinion and criticism, the name of the game should be wide dissemination, not demands for transactional payment destined to become ever more futile and self-defeating in an age of information overload. The model is moving from payment for information to payment for convenience (no need to print out each Atlantic article one-by-one!) and gratitude. Writers, like waiters, will effectively be angling for "tip-like" compensation to supplement whatever ad revenue their sites can generate.

Though some may lament the loss of revenue here for writers, perhaps this model better reflects the contributions of the audience to the success of a work. The "market of ideas" involves investments on both sides--the "supplier" (writer) expends effort by producing a work, and the "demander" (reader) dedicates scarce attention to the work. A declining price for works effectively amounts to an inducement to readers to get them to pay attention. In the case of the Atlantic and Bookforum, I will be paying more attention in gratitude for that inducement (and their convenience). Despite their top-rate brands and insightful content, I predict Harper's and the New Yorker will be getting a lot less attention from bloggers if they don't get with the "openness" program soon.

Posted by Frank Pasquale at 10:35 AM | Comments (3) | TrackBack

Law Professor Blog Rankings -- By Citation

For those who love rankings (which is all of us except those who hate rankings but love looking at them), there's a new ranking of law professor blogs. Recently, Paul Caron posted a ranking of law professor blogs based on visitor traffic. Over at The Race to the Bottom blog, Robert Brown has posted a ranking of law professor blogs by citation. Here are the top 10:

1. Sentencing Law and Policy, 156
2. Jurist- Forum, 156
3. Volokh Conspiracy, 135
4. Balkinization, 106
5. LessigBlog, 79
6. Patently O, 73
7. Jurist- Paper Chase, 50
8. Concurring Opinions, 45
9. White Collar Crime Prof Blog, 44
10. Prawfs Blawg, 37

The total law review citations for about 130 law professor blogs that Brown counted is 1361.

If we compare the top 10 lists for visitor traffic and citations, the following blogs appear on both lists:
* Volokh Conspiracy
* Balkinization
* Concurring Opinions
* Sentencing Law & Policy

Related Posts:
* Solove, Law Professor Blog Rankings (February 2008)
* Solove, Citations to Blogs (February 2008)

Posted by Daniel J. Solove at 12:33 PM | Comments (0) | TrackBack

Bullish on the Blogosphere

In looking over Paul Caron's rankings of blogs based on visitor traffic, Brian Leiter notes that many of the top five blogs contain much more punditry than substantive legal analysis.

Over at Balkinization, Jack Balkin argues that these results are to be expected and are not reason to deride the blogosphere:

I think, in fact, that this is pretty much what we should expect. Blogs directed at popular audiences generally get the largest traffic. Specialty blogs, including blogs that specialize in delivering legal expertise, are usually niches, generating relatively low traffic that is nevertheless useful to the communities that read them. . . .

These sites are engaged in something very important: the diffusion of professional expertise. It is a diffusion that would not have been possible on this scale before the age of the Internet and remember, we are still in the earliest stages of this development. These legal blogs simultaneously (1) allow academic communities of interest to form; (2) forge connections with lawyers and judges in practice who pay hardly any attention to law review scholarship anymore; (3) put informed legal analysis into the hands of journalists and political writers who can now find it more easily than they ever could before; and (4) offer lay persons a window in to what legal experts think.

Here is the point: Even the least trafficked of these expert blogs probably gain more readers in six months than most law professors could hope for in a career. . . .

I think that the future of the academic legal blogosphere-- by which I mean that subset that devotes itself primarily to serious academic commentary-- is very bright. It will never get the same readership as blogs that specialize in punditry, but it is doing something that most law professors have always dreamed of-- bringing ideas that they believe are interesting and important to a far larger audience, reaching people outside the legal academy who want to know what law professors actually think about the law. Surely this is a worthy endeavor, whose success we legal academics should all be proud of.

I wholeheartedly agree. The great value I see in the blogosphere is to communicate with professors and others in a way that I cannot as readily do in law review articles or books. If I want to engage in a lengthy and detailed analysis, I'll do it in a law review or book. But if I want to analyze a case, react to a news story, write a short book review, or respond to a critique of an article or a book I wrote, the blogosphere is the perfect medium for that. I view the blogosphere as an idea-spreading mechanism. I work hard on my ideas (I may not always get results, but I try) and I want to sprinkle them around with the hope that one or two might actually take root somewhere. Life doesn't always work like the movie Field of Dreams -- "If you build it, they will come." Plenty of great ideas languish in obscurity, not because they're not interesting, but because hardly anybody knows about them. The blogosphere can rectify that problem, and it can bring ideas to journalists, politicians, academics in other fields, practicing lawyers, and others.

Leiter only focuses on the top five blogs on Caron's list, but if you look at the top thirty, there are many blogs with a heavy amount of posts about legal issues and containing substantive legal analysis or discussion about legal scholarship or the academy.

Balkin is right to be bullish on the blogosphere.

Posted by Daniel J. Solove at 12:01 AM | Comments (2) | TrackBack

Law Professor Blog Rankings

Over at TaxProf, Paul Caron has a new ranking of law professor blogs by traffic statistics in visitors and page views. Here's the top 10 by total number of visitors (February 2007 - January 2008):

1. InstaPundit, 70,748,231
2. Hugh Hewitt, 13,392,343
3. Volokh Conspiracy, 8,647,368
4. Althouse, 4,429,672
5. Leiter Reports: Philosophy Blog, 1,629,699
6. TaxProf Blog, 1,358,016
7. Balkinization, 1,294,363
8. Concurring Opinions, 1,125,512
9. Sentencing Law & Policy, 907,141
10. Professor Bainbridge.com, 856,240

Posted by Daniel J. Solove at 10:36 AM | Comments (2) | TrackBack

Welcome to the Blogosphere: Faculty Lounge

Professor Dan Filler, who used to blog here at Concurring Opinions and left us a while ago, has started a new blog called Faculty Lounge with Professors Laura Appleman, Al Brophy, Kathleen Bergin, Kevin Noble Maillard, and Calvin Massey. They've got some great blogging talent, so this new blog is definitely worth bookmarking.

Dan has a post listing lateral moves here. Please email him per his instructions in the post to help him complete the list of this year's lateral moves.

Posted by Daniel J. Solove at 01:25 AM | Comments (0) | TrackBack

Citations to Blogs

Over at the Volokh Conspiracy, Orin Kerr searched Westlaw's JLR database and discovered that citations to Volokh Conspiracy posts were increasing:

By year: 2004, 14 citations. 2005, 22 citations. 2006, 69 citations. 2007, 43 citations. Note that the high number of citations in 2006 resulted in part from the publication of papers from conferences about law blogs, and that the number of citations for 2007 will likely increase in the future because not all journals have posted their final 2007 issues to the database.

At Balkinization, Jack Balkin found similar results:

In 2003 we received 1 cite; in 2004 3 cites; in 2005 14 cites; in 2006 36 cites; and in 2007 49 cites. . . .

These results suggest that blogging has become a more widespread and accepted practice in the legal academy. It's important to remember that people cite for many different reasons: to give credit for ideas, to criticize ideas, and as (persuasive) authority. My guess is that most of these citations fall into the first two categories, but that is true to many citations for law review articles as well.

I'm hoping that some enterprising scholar will do a study of citation practices to a selection of 20 or so well known legal blogs to see if the citation patterns for these two blogs reflect a general trend.

I did a search for Concurring Opinions posts in Westlaw's JLR database. The result: 264 cites in 2007! But, alas, that was searching for "concurring opinions." I then did the search the proper way, searching for www.concurringopinions.com OR concurringopinions.com and got the following results:

2007 - 28 citations
2006 - 17 citations
2005 - 0 citations

Our blog was started in October 2005, so that's why there were no 2005 citations.

Posted by Daniel J. Solove at 01:30 PM | Comments (0) | TrackBack

Translating Online Life for the Tech-Avoidant

In a recent edition of On the Media, NYT law reporter Adam Liptak contended that many 4th Amendment cases involving computers challenge the technical understanding of appellate judges who favor faxes over email and pens over laptops. A couple of good articles have recently tried to bridge such gaps by explaining online worlds like MySpace and blogs to a print-bound public. Lauren Collins' reportage on the Megan Meier scandal offers a pitch-perfect portrait of a brave new world of posing and self-promotion online. Sarah Boxer's NYRB take on ten books on blogs covers more territory online, but less compellingly: the blogosphere is a much less "capture-able" phenomenon than one small corner of social networking.

Here, for instance, is Boxer's attempt to capture the "essence of blog writing:"

[E]ven blogs that have few or no links still show the imprint of the Web, its associative ethos, and its obsession with connection—the stink of the link. Blogs are porous to the world of texts and facts and opinions on line. (And this is probably as close as I can come to defining an essence of blog writing.) Bloggers assume that if you're reading them, you're one of their friends, or at least in on the gossip, the joke, or the names they drop. They often begin their posts mid-thought or mid-rant—in medias craze.

So while the MSM brings a general public up to speed, blogs apparently are better designed to capitalize (and consolidate) small communities of the like-minded. I suppose I can accept that generally, but why blame the links? Aren't they often a much better way of filling in readers on the whole story than the parentheticals and asides that can weigh down a print story? And aren't poets the more perplexing perpetrators of puzzling obscurity?

But Boxer does offer a good critique of links reminiscent of Grimmelmann's recent Lawyers, Blogs, and Money post:

When the blog boom came, the tone of the blogosphere began to shift. A lot of the new blogs—though certainly not all of them—weren't so much filters for the Web as vents for opinion and self-revelation. Instead of figuring out ways to serve up good fresh finds, many of the new bloggers were fixated on getting found. So the very significance of linking began to change. The links that had once mattered were the ones you offered on your blog, the so-called outbound links pointing to other sites. Now the links that mattered most—and still do—are those on other blogs pointing toward your blog, the so-called inbound links. Those are the ones that blog-trackers like Technorati count. They are the measure of fame.

Now that fame and links are one and the same, there are bloggers out there who will do practically anything— start rumors, tell lies, pick fights, create fake personas, and post embarrassing videos—to get noticed and linked to. They are, in the parlance of the blogosphere . . . . "blogebrities."

That's a nice critique of the pressures something like Technorati can generate. But why close the article with the condescending litany "Blog writing is id writing—grandiose, dreamy, private, free-associative, infantile, sexy, petty, dirty"? I can think offhand of about 20 blogs that wouldn't reflect any of those adjectives. And while the staid precincts of law blogs may make my perspective a rare one, I'm pretty sure you can find many other fields where the same could be said. In short, Boxer appears to fall prey to the same tendency she accuses the blogs of: looking for sensational and provocative content and giving undue emphasis to it.

Lauren Collins' tech translation story has more realistic aspirations than Boxer's portmanteau review, and succeeds in fulfilling them. In describing the tragic story of Megan Meier, she offers a partial but informative view of the social world MySpace can create:

MySpace, with its cluttered layout, can suggest an online incarnation of the broken-windows theory—surface disorder begetting actual chaos. It works like this: a person signs up (all he needs is an e-mail address) and then constructs a profile by choosing text, songs, graphics, wallpaper, and video clips. Often, when you open a page, the music’s already thumping, as if you’d stumbled into a party in someone’s basement.

The reigning aesthetic on the site is bulletin board meets lava lamp: tack up a bunch of stuff and set it blazing in bubbly neon. Black backgrounds with cramped, colored fonts are popular, as are blinking banners, cartoon characters, hearts, exclamation points, pictures of cars, and graffiti-style writing. MySpace has a pliant grammar, and its users manipulate lowercase and capital letters for visual effect. “Z”s trump “s”s, so that “Miss Honey Love” becomes “Mz.Hon3y Luv.” A boy named Shane writes his name “$h@NE,” in the pasteup style of a ransom note.

***

[T]rying on identities is, in the fluid environment of the Internet, a riskier experiment than raiding Mom’s makeup bag. Squabbles that would take days to percolate in person can within seconds explode into full-blown wars. Disputes can also become painfully public. Sites allow users to rank their “Top Friends,” so that the ever-shifting alliances of a clique are posted, for all to see, in a sort of popularity ledger. . . ..

As for the popularity ledger: I believe one South Korean site (Cyworld) offers "popularity displays on the front page with fixe indicators for sexiness, fame, friendliness, karma, kindness, which increase as the number of visitors, gifts received and gifts made increase." So the same Technorati quantifications driving blogs to seek more inbound links are now drilling down to the personal level. I expect new frontiers in the commodification of community--and I'm glad people like Collins and Boxer are explaining them to the public generally, even if no one review or story can hope to give a complete picture of what's going on online.

Posted by Frank Pasquale at 09:55 AM | Comments (0) | TrackBack

Columbia Law Review, Volume 108 Issue 1 (January 2008)

Columbia Law Review, Volume 108 Issue 1 (January 2008)

Articles
Judging the Voting Rights Act
Adam B. Cox & Thomas J. Miles

Judging Innocence
Brandon L. Garrett

Notes
Giving Precise Content to the Eighth Amendment: An Assessment of the Remedial Provisions of the Prison Litigation Reform Act

Why the National Popular Vote Plan Is the Wrong Way to Abolish the Electoral College

Essay
Deconstructing Equity: Public Ownership, Agency Costs, and Complete Capital Markets
Ronald J. Gilson & Charles K. Whitehead

Posted by Columbia Law Review at 03:43 PM | Comments (0) | TrackBack

Columbia Law Review, Volume 107 Issue 8 (December 2007)

Columbia Law Review, Volume 107 Issue 8 (December 2007)

Posted by Columbia Law Review at 02:43 PM | Comments (0) | TrackBack

Columbia Law Review, Volume 107 Issue 8 (December 2007)

Columbia Law Review, Volume 107 Issue 8 (December 2007)

Articles
Procedures As Politics in Administrative Law
Lisa Schultz Bressman

Mandating Access to Telecom and the Internet: The Hidden Side of Trinko
Daniel F. Spulber & Christopher S. Yoo

Notes
Opportunistic Informal Bankruptcy: How BAPCPA May Fail to Make Wealthy Debtors Pay Up

The Line Between Liberty and Union: Exercising Personal Jurisdiction over Officials from Other States

Essay
The Paradoxes of Cultural Property
Naomi Mezey

Posted by Columbia Law Review at 02:43 PM | Comments (0) | TrackBack

Should We Promote Commenting?

At our annual state-of-the-blog lunch at this year's AALS meeting, members of CoOp discussed whether, and how, to develop the blog's interactive side. I generally have supported interactive content generation, as a part of a bigger project to solve the flat legal blogosophere problem. But we haven't done much in this direction, cautioned, I think, by our lacking a unified vision of what legal blogs should do, and should look like, in the future.

Reading the comments to a recent post by Orin Kerr at Volokh, I think I can appreciate the arguments against encouraging audience participation at a more visceral level. Orin posted a video of MLJ's "I Have a Dream" speech without further comment. The thread (very quickly) moved into a discussion of affirmative action. Here are a few examples of the anti- side:

The prejudice and stereotype in this case [a hypothetical "resume with a stereotypically black name on it is vastly less likely to get a call for an interview than an identical resume with a name few black people"] is that the probably-black candidate is likely to be a total incompetent who's been scocially promoted" his whole life by organizations who need to keep their AA numbers up.

Many posters here will be fighting to keep my children out of the best schools bacause of their race over the next two decades. I believe many will continue to call my children racist for wanting fair treatment. The race hucksters of today differ little from those who enacted Jim Crow.

What frustrates me as an academic is that there is a marked tendency for college faculty to decide their department needs a black person. So they add an AA line. Which is fine.

Implicit in today's affirmative action is the notion that the Black man isn't equal to the White man so we have to have different standards for him. The proponents of AA also see it as necessary to demonize an entire race as born oppressors. It would be interesting to run psychological tests on this group similar to the ones done on Black children back in the 50s who were subject to Jim Crow.

All that shows that the process of creating the holiday was deceitful, and we shouldn't have a holiday for him at all. The supposed reason for creating the holiday was to honor his opposition to racism, not his adherence to left-wing causes. We're better off *without* a holiday used to promote raising taxes and opposing the military. If those things are such an inseparable part of his legacy that it's impossible to honor him without promoting those causes, then his legacy is a horrible one and neither he nor it deserve to be honored.

Such disparate reactions to King's speech are as predictable as they are sad. But they don't suggest to me that encouraging more comments on our threads, or more generally moving toward a diary-based system, would necessarily lead to better content.

Posted by Dave Hoffman at 03:35 PM | Comments (6) | TrackBack

Six Favorite Podcasts of 2007

I'll lead with the law, then go into some other interesting ones below the fold:

6. David Levine, Hearsay Culture: Levine's done at least 50 podcasts, focusing on (but not limited to) legal scholars writing on tech and IP. Here's the schedule for the first part of 2008. Levine has a knack for bringing out the best in his guests.

5. Justice Talking: Here's a list of the shows on this NPR program. Margot Adler is a great interviewer, and the website is excellent; for example, here are the resources available in conjunction with the program on race and the justice system.

4. Law Talk: Okay, call me biased, but I think Nate has done a great job with our podcast series, and Dave's recent contribution is well worth a listen.

3. Open Source Radio: Though its time on NPR was sadly cut short, Chris Lydon's program is still running, and the "back catalogue" is well worth listening to.

2. Slate Magazine Daily Podcast: This is nearly always interesting--quite a feat for a daily show. A nice mix of law, politics, economics, culture, etc.

1. Krista Tippett's Speaking of Faith: Though most podcasts simply aim to inform or entertain, Tippett sets herself a higher bar. This is a program about self- (and community-) improvement in the deepest sense. She's also been an innovator in the form of podcasting, releasing unedited versions of interviews and inviting feedback from the audience. Her interview with Jean Vanier was one of the most inspiring things I heard all year. Highly recommended!

Posted by Frank Pasquale at 12:13 PM | Comments (0) | TrackBack

Blogs and Privacy

Over at Civilities, Jon Garfunkel points out that many blogs that use Site Meter and other third-party visitor tracking services are publicly displaying a lot of information about their readers: IP addresses, domains, location information, referring URLs, and if they came to the site via a search engine, the search terms that took them to the blog. In his post, Jon notes that he tried an experiment at a blog that uses Site Meter and linked up IP addresses to specific anonymous or pseudonymous comments. That blog was ours.

Our Site Meter stats are public. I really like allowing our readers to see our traffic stats, referring URLs, the search term queries that bring readers to our blog, and the location and domain information.

But Site Meter also lists the IP address of each visitor, something that the public really doesn't need to see. An IP address is a unique numerical identifier that is assigned to every computer connected to the Web. It doesn't reveal your name, but it can be used to trace back to the specific computer you used or be linked to your account with an ISP. In other words, your IP address can be used to find out who you are.

A sample stat entry looks like this (I've blocked out part of the IP address):

Some other stats that SIte Meter offers are:
* A chart of our visits and page views over the past year
* A list of the past 4000 domains that have visited us
* A list of the past 4000 URLs that referred visitors to our blog
* A ranking of the last 4000 entry pages to our blog (shows which posts are particularly popular today)
* A list of locations where our last 4000 visitors came from
* A list of search terms that brought visitors to our blog

Our Site Meter tracks the last 4000 visits to our blog, which are publicly displayed at the Site Meter page for our blog. Entries beyond the last 4000 are no longer publicly displayed. For our blog, which is getting about 3000 to 3500 visits per day, information about your visit to our blog is displayed for a little over a day.

Jon's post has made me think much harder about blogs and privacy. Beyond Site Meter, our blogging software logs the IP addresses of commenters. We could conceivably be subpoenaed in a civil or criminal litigation to turn over IP address information about an anonymous or pseudonymous commenter. When posting a comment, our blogging software also asks for your email address, which is not published with your comment but which is recorded in our system and made available to us. You can provide a fake email address, but if you provide your true email address, this could also be of use in identifying you if subpoenaed.

So all this made me realize that we do have some data about you and we need to construct a privacy policy. Regarding Site Meter, bloggers who use the premium Site Meter service (which we use) display full IP addresses in their public stats. Those who use the free version of Site Meter have the IP addresses partially blocked out in their public stats. Site Meter has an option to conceal all the stats, but it doesn't allow for only concealing or partially blocking IP addresses. The choices are to publicly display everything or conceal nearly everything.

I contacted Site Meter to see if IP addresses could be partially blocked in public stats on a premium account. A person at Site Meter informed me that they currently cannot do this, but that they hope to add this capability in the near future. Right now, then, the best solution to this dilemma is to downgrade from the premium to the free Site Meter, as this will allow us to have public stats with partially-blocked IP addresses. We are currently considering do this at Concurring Opinions, as well as removing Extreme Stats, another service similar to Site Meter that we use which also displays IP addresses.

Many of the blogs I visit have public stats, so if you're a regular blog reader, your IP address and other information is being logged and publicly displayed across the blogosphere.

Some questions:

I. YOUR ATTITUDES TOWARD PUBLIC STATS

1. Do you find our public visitor stats via Site Meter to be useful? If so, why?
2. Do you find it problematic for your IP addresses to be publicly displayed in Site Meter and other visitor tracking services?

II. YOUR KNOWLEDGE ABOUT WHAT INFORMATION WE HAVE ABOUT YOU

3. Did you realize that when you visit our blog and others, that your IP address and other information are publicly available in our Site Meter logs?
4. Did you realize that when you make an anonymous comment on our blog, it is possible to link up your IP address with your comment via Site Meter stats?
5. Did you realize that when you make an anonymous comment on our blog, our blogging software records your IP address, which could be subpoenaed?

III. YOUR THOUGHTS ABOUT POLICY

6. Should we continue on as usual (public Site Meter stats with full IP addresses)? Or should we block full IP addresses from public view?
7. If there's a tradeoff between having public stats with full IP addresses and no public stats at all, which of these options would you prefer?
8. What should our policy be if we are requested by others or subpoenaed to provide identifying information (an IP address or email address) for an anonymous or pseudonymous commenter?

Posted by Daniel J. Solove at 01:08 PM | Comments (22) | TrackBack

Has the Legal Blogosphere Stabilized?

Over at the VC, Orin Kerr wonders whether the legal blogosphere has stabilized:

The major new blog was David Lat's Above the Law, which has quickly become highly trafficked. But there were surprisingly few new blogs that took off, and many more blogs that looked bright in 2006 but became mostly or entirely dormant in 2007. Most of the major blogs have kept going, and readership on the whole has been roughly stable. But my sense is that there hasn't been a lot of growth in overall law blog postings and readership.

Orin concludes: "Perhaps law blogging has hit a saturation point. Only so many people are interested in reading these sorts of things, and maybe that crowd is pretty stable and hard to grow."

I think Orin is right -- partially. Here's where I think he's right. Many blogs have very small audiences. Only a few law blogs have more than 1000 readers per day. My guess is that the number of law blogs with more than 1000 readers has not increased dramatically over the past few years. There are so many blogs that a person can read, and many folks have found their favorites now and are content. Of course, there's always the possibility of an exciting new blog on the block that will quickly attract an audience. But in our experience at Concurring Opinions, it takes time and lots of work to build an audience.

But, I do think that in the future, we'll see steady growth in blog readership -- not the exponential growth of the past, but a decent growth. At Concurring Opinions, our readership has grown a lot over the past two years. In 2006, we were averaging about 50,000 to 60,000 visits per month; in 2007, we're averaging 80,000 to 100,000 visits per month. That's about an 80% increase in visits. I don't think we'll continue with such a steep growth, but I do hope and expect our readership to continue to grow.

Some predictions for the future:

1. The rich will get richer (or at least stay rich). The popular blogs will continue to grow their audience. There will be 10-20 blogs that have a sizable readership, and that number will remain relatively stable. Only a few new blogs might break into this club.

2. More law professors and lawyers will blog. Many will do so temporarily as guests, as several group blogs are hosting many guest bloggers (at Concurring Opinions, we've had over 50 guest bloggers in the past two years). There will be a number of people each year who drop out of the blogosphere, but I think that number is stabilizing -- those that tried out blogging early on because it was the new cool fad but couldn't sustain their interest have by and large dropped out. As more people try out blogging as guests, a few will be bitten by the blog bug and will stick around the blogosphere on a permanent basis.

3. In the law professor blogosphere, as new professors enter the academy each year, I expect a number of them will eventually take up blogging in order to increase their exposure or because they had blogs in law school and want to continue on blogging. So I expect growth in the number of law professor bloggers, but it will be a slower and more steady growth than the more dramatic increases of years past.

4. Blog readership will grow steadily. Many new law professors and law professor wannabes are avid blog readers, looking for the latest ideas, scholarly buzz, or career advice that is abundant in the blogosphere. This also applies to all legal blogs. Many law students in law school or just graduating from law school are blog readers. My sense is that those entering into the study of law or the legal profession are more likely to be blog readers than those retiring or departing. This means more readers each year, which as I predict above, will largely gravitate toward the existing established blogs.

Posted by Daniel J. Solove at 10:41 PM | Comments (1) | TrackBack

This is Your Brain on ... the New York Times

A recent NY Times bit talks about “neurorealism,” that is, people’s increased tendency to believe psychological or other scientific assertions when those assertions are accompanied by images from brain scans. The piece quotes Deena Weisberg, who wrote an article in the Journal of Cognitive Neuroscience documenting this empirically (in both laypeople and, if I remember the article correctly, in experts, though to a lesser extent), and the neologizer, Eric Racine. The piece mentions a newspaper article “about how high-fat foods activate reward centers in the brain,” and asks, “Couldn’t we have proced that with a slice of pie and a piece of paper with a check box on it?” Brian Leiter also noted the Times piece, with a plug for his paper criticizing legal academics’ use of evolutionary biology.

But the Times bit, and these scholars, conflate two very different points. The first is the “credulousness” issue—that people believe the assertions when accompanied by brain images. That’s an important point, especially in the legal context, where judges, jurors, or policy-makers might be exposed to such scans and misled by such scientific “explanations” of behavior. (Of course, it’s not enormously surprising, given past concerns about jurors’ understanding of complex scientific evidence.)

But that’s quite a different point from the dismissive “check box” question, criticizing even the usefulness of such neurological research. fMRI and other such scans can of course provide important and useful evidence, and certainly can tell us more than simple self-reports or even other behavioral studies. Matt Lieberman, a psychologist at UCLA [disclosure: we were in grad school together] and one of those most prominently associated with the newish field of social cognitive neuroscience, has addressed this well, in answering whether SCN provides something more than conventional social psychology. Summarizing just one of his papers on the issue: he points out that fMRI can provide evidence that “two psychological processes that experientially feel similar and produce similar behavioral results, but actually rely on different underlying mechanisms,” such as memory for social and non-social information. It can document “processes that one would not think rely on the same mechanisms, when in fact they do,” such as the common neurological pathways in the experience of both physical and social pain. And more speculatively, he suggests, as “more is learned about the precise functions of different regions of the brain it may be possible to infer some of the mental processes that an individual is engaged in just from looking at the activity of their brains.” This is an important advantage to overcome potential difficulties in, for instance, self-report.

There is of course danger in over-selling fMRI and similar neurological evidence—whether evaluating psychiatric patients, capital defendants, or others—and documenting people’s susceptibility to such over-sell is important. But it’s quite a different question whether such scans can be useful, and to dismiss them out of hand is just as obviously a mistake.

Posted by Jeremy Blumenthal at 10:57 AM | Comments (2) | TrackBack

Welcome to the Blogosphere: Islamic Law in Our Times

Professor Haider Ala Hamoudi at University of Pittsburgh School of Law has started a new blog called Islamic Law in Our Times. From the first post:

For my first post, I thought I would try to give my reasons for why I am writing this blog. It is my purpose to clarify and explain Islamic law in the modern world, a subject I think is largely misunderstood in many ways.

In order to demonstrate the crisis, and it is most definitely a crisis, in the way that Islamic law is approached and understood today, I'd like to draw on two very recent news stories concerning Saudi Arabia and the Sudan, respectively. In Saudi Arabia, a woman was sentenced to 90 lashes (raised to 200 lashes on appeal) for "Unlawful Seclusion" with a man not her husband (her ex fiance) prior to being gang raped (along with her ex fiance) by seven individuals. Apparently she was in a car with the ex fiance, though beyond this the circumstances are largely disputed. In the Sudan, a by all accounts well meaning English schoolteacher named a class teddy bear Muhammad at the request of the class (a common name throughout the Muslim world). She has been convicted of a crime under Article 125 of the Sudanese criminal code and has been sentenced to fifteen days in prison and exile. The maximum punishment under the act could have been 40 lashes or six months in prison. Throughout the past few days, I have been asked whether or not all of this nonsense is "Islamic law." The answer, of course, depends very much on what "Islamic law" is supposed to mean.

For Haider's interesting analysis of these cases, read the rest of his post.

Welcome to the blogosphere, Haider!

Posted by Daniel J. Solove at 05:55 PM | Comments (0) | TrackBack

Concurring Opinions Makes the ABA Journal's Top 100 Law Blog List

I'm very pleased that Concurring Opinions has been selected for the ABA Journal's Blawg 100. According to the ABA Journal's site, it is listing "the 100 best Web sites by lawyers, for lawyers, as chosen by the editors of the ABA Journal."

The ABA Journal is also asking readers to vote for their favorites on their list, and we'd be delighted if you voted for us. Click the graphic below to go to the voting page.

Posted by Daniel J. Solove at 12:40 PM | Comments (0) | TrackBack

Blog Readability Levels

This nifty site rates the level of education necessary to understand your blog. I plugged in various blog URLs as well as some URLs of mainstream media sites. Here are the results:

GENIUS
* Legal Theory
* Balkinization
* Becker-Posner
* TaxProf

COLLEGE (POSTGRAD)
* Brian Leiter's Law School Reports

COLLEGE (UNDERGRAD)
* Concurring Opinions
* Conglomerate
* PrawfsBlawg
* Dorf on Law
* How Appealing

HIGH SCHOOL
* Washington Post
* Slate
* Time
* Wall St. Journal

JUNIOR HIGH
* Volokh Conspiracy
* Above the Law
* Althouse
* Instapundit
* CNN
* New York Times

ELEMENTARY SCHOOL
* Drudge Report

Posted by Daniel J. Solove at 01:22 AM | Comments (4) | TrackBack

How to Get a Free Copy of The Future of Reputation

Are you a blogger?

Are you interested in the issues of Internet gossip, rumor, privacy, anonymity, and free speech?

Are you interested in writing a short book review?

If so, I’m offering you a free review copy of my new book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet.

My book is about blogging, and I discuss how information spreads rapidly throughout the blogosphere – with both good and problematic effects. Obviously, I want to try to harness the good side of the blogosphere’s power, and that’s why I’m trying this experiment. The purpose of my book is to spark a discussion about the issues, and I cannot imagine a more appropriate way to do so than in the blogosphere.

If you’re interested in reviewing the book, please send me an email with your address, a brief description of your blog, information about your readership and visitor traffic, and a link to your blog.

If the response is overwhelming, I may not be able to send a book to everyone. My publisher only supplied me with a limited number of free review copies, so once they’re gone, you’re out of luck. Preference will be given based on the following factors: the promptness of your request, the relevance of the issues you blog about to the issues discussed in my book, and your visitor traffic. In other words, if you primarily blog about albino panda bears, or if you are the only reader of your blog, I won't be too keen on depleting my precious stock of review copies for you.

Please note that I'm sending copies in exchange for your writing a review -- so whether you like the book, love it, or hate it -- I'd like you to air your candid thoughts on your blog.

So please email me a request soon, while supplies last!

Posted by Daniel J. Solove at 12:15 AM | Comments (0) | TrackBack

Who, Exactly, Is a Journalist?

Is Howard Bashman a journalist? Bashman is the author of How Appealing, a very popular legal blog that many readers here read -- and that anybody who wants to keep informed about new cases and legal developments should be reading. Bashman frequently posts or links to court decisions when they are released online, and a recent set of events raised the question of whether he should be considered to be a journalist.

According to the ABA Journal:

federal appeals court quickly withdrew an opinion issued yesterday in a case filed by a Sept. 11 detainee because of concerns it contained information filed under seal.

The opinion by the 2nd U.S. Circuit Court of Appeals revived a lawsuit by Egyptian student Abdullah Higazy who was detained after the attacks. Higazy claimed an FBI agent had coerced him to make a false confession.

The court was not quick enough for the blog How Appealing, which posted the opinion after a reader sent it along by e-mail. A clerk later called blog author Howard Bashman to ask him to take it down, but he has not complied.

The court planned to issue a revised opinion this morning, the New York Sun reports.

Bashman told ABAJournal.com that by the time he posted the opinion on his blog, hosted by American Lawyer Media, the ruling had already been viewed by hundreds if not thousands of individuals, and it was widely circulated by e-mail to those who were interested in the case.

"In my role as a member of the news media, I determined that it would be inappropriate to take down my posting of the decision based on a general claim that the opinion, issued earlier in the day to the public over the Internet, referred to information contained in an appendix whose contents remained under seal," Bashman wrote in an e-mail.

Bashman's account of the incident is posted on How Appealing.

Matthew Felling, writing at CBS's website, examines Bashman's claim to be a member of the media:

So not only is this a case of transparency, it’s also an anecdote begging the question “What makes someone a journalist?” Bashman called himself a “member of the news media,” yet as far as this writer could tell from a few clicks, he happens to be a Pennsylvania attorney who also operates a blog. . . .

Does readership define a journalist? Bashman added in a follow-up e-mail that he gets nearly 10,000 readers on “a typical weekday.” Does receiving money for writing make one a journalist, as Bashman does?

As far as this writer is concerned, Bashman fits the bill. But where is the line drawn? This isn’t a classroom discussion, a distinction without a difference, as we enter murky legal waters and a Federal Shield Law is considered on Capitol Hill.

Who is a journalist in an age where anybody can write to a worldwide audience? I believe that anybody can be a journalist -- a journalist is what a journalist does. In other words, being associated with a mainstream media entity doesn't determine who is a journalist and who is not. One doesn't need to be part of any organization to report information to the public.

When asked by Felling what made him a journalist, Bashman responded that he has long been paid by media entities to run his blog. But being paid money shouldn't define whether one is a journalist. Bashman is just as much a journalist even if he doesn't get any money for his efforts -- he's still engaging in the same activity: bringing information to the public.

But are there any lines that can be drawn? Are we at Concurring Opinions journalists? Is the teenager who blogs about her personal feelings and social life a journalist? Is everybody with a MySpace or Facebook page a journalist?

Here are some possible ways to draw the line and some of their pitfalls:

1. Perhaps the line should be drawn based on whether a blogger is engaging in original reporting as opposed to simply commenting on various news stories. This is a distinction that some in the mainstream media make -- "We go to Iraq, we get the news from the place it's happening. Some blogger then just links to our story and adds a few thoughts -- it's not the same." True, it's not the same, but both are still forms of journalism. The mainstream media is often filled with commentary, and opinion and news are often mixed together. The mainstream media loves to discuss other stories in the mainstream media. So if the New York Times or Washington Post or other elite media entity might not want to do original reporting on the salacious gossip about a celebrity, it can write a story: "So-and-so newspaper or blog or whatever says that Celebrity X did Y." The news angle of these stories is that it is newsworthy that others are reporting about the scandal -- even if the scandal itself alone somehow wouldn't qualify. If this works for the MSM, then it should work for bloggers too.

2. Perhaps the line should be drawn based on one's audience. If one has a small audience of just friends, then she's not a journalist. But if one has a broader audience, then she is. But this line is nearly impossible to draw. Does a newspaper need to be read by many to be journalism? Many things are written for a niche audience. But if numbers don't matter, then am I a journalist if I just tell one or two people some information?

3. Perhaps the line should be drawn based on the nature of the information one is spreading. If a person is speaking about personal information, she isn't a journalist. If she is speaking about politics or culture, then she is. But the MSM reports on a litany of topics, often involving personal stories. Some of these stories may not be very newsworthy, but those who write them are still journalists and they are still at least attempting to engage in journalism.

I'm not so sure that the journalist / non-journalist distinction works. Everybody who expresses information to the public should be treated equally -- being labeled a "journalist" shouldn't carry any special privileges, especially since there seems to be no particularly good way to distinguish who is a journalist and who isn't.

Howard Bashman has a constitutional right to post the judicial decision he posted -- the Supreme Court held in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), that "[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it." Bashman enjoys this right regardless of whether he is paid by a mainstream media entity or doesn't get a dime for his efforts. He has this right regardless of whether he blogs for 10,000 readers or just 2 people.

Is Howard Bashman a journalist? Should it matter? Perhaps that's not a question we should even be asking.

Posted by Daniel J. Solove at 10:47 AM | Comments (12) | TrackBack

Melville the Blogger?

I have yet again started reading Moby Dick and think Melville may be an early blogger. Previous attempts to finish the book stalled as the details of whales and whaling life posed walls to enjoying the book. Trying to digest all the information packed into each chapter and connecting them to the larger aspects of the book in a few sittings felt rushed and unsatisfying. This time, however, I took a different tack. I searched for some critical reviews to guide me and that helped. But the structure of the book offers the key to my current enjoyment of the book. The chapters are quite short. One can read one or perhaps two chapters a day quite easily. So just as I sometimes read short story collections (I recommend The Elephant Vanishes and Strange Pilgrims) to see a range of an author’s thoughts and complete a reading in a short time, I chose to read the book in the same way.

That is when it dawned on me that Melville’s Ishmael is similar to a blogger. Most of the chapters are first person. He seems to share whatever is on his mind. Some passages advance the story; others provide details (maybe inordinate details) about rather peculiar interests. Blogs often have a single topic. They offer one person’s view of the topic and sometimes wander into musings about the world and the universe. One can read them in short bursts. Over time one gains a sense of a voice, a view, and sometimes a vision. Reading Ishmael’s account of the world as he goes from the New England whaling community to the sea as a journal of what catches his eye as worth documenting freed me to enjoy the book. Taking each chapter as a discrete unit or post allowed me to appreciate the way the recitations of details had embedded observations about life. Those hidden and seemingly untethered ideas often linked to later ideas. Like a blogger’s writings some of the details may mean nothing. They may amuse or intrigue or educate for a moment. That moment passes. Still some musings, or even just a sentence in the musings, may stick and compel further thought or action. Sometimes the text may not connect with the reader. He may put down the book or stop reading the work for some time. The text remains. If the reader chooses, he can pick it up again and find that as a new reader with new experiences and understandings the text is new and speaks more directly to him. So much so that his promise of only a chapter or two a day becomes a way to savor the text and extend the time it takes to finish it which he still hopes to do.

Posted by Deven Desai at 02:00 PM | Comments (2) | TrackBack

Drafting a Group Blog Operating Agreement

Concurring Opinions organized as an LLC some months ago, for all the obvious reasons. But filing papers with the Secretary of State doesn't begin to answer the legal issues that arise when people come together to blog. Indeed, it creates a host of new ones. Over the last few months, to solve the problems that becoming a legal entity creates, we have been working to finalize our operating agreement, tailored to the unique needs of blogging. Now that we're done, I thought I'd share a few thoughts about the major issues we considered, and the solutions that we settled on. I'm going to be a little bit general here, and, as always, nothing about this post constitutes legal advice, on the off chance you were in the market for it. To preempt the objection that considering the pittance of money that we get from advertising, most of this is overkill, I would just respond: they probably used to think that at Google too. (Or, more humbly and accurately, if it is worth doing, it is worth doing right).

1. Governance: We decided to go with a member-operated entity (rather than the formal route of having officers). This seemed like an overdetermined choice. But it leaves some big questions on the table: what kind of majorities do you need for which kinds of decisions; how many members constitute a quorum; do all members get equal votes? We decided on super-majority rules for every decision, and permitted voting by email with a "quorum" defined as participation in the email "meeting" within a set period of time. We also decided on equal voting shares for existing members.

2. Exit: So there you are, blogging away as a member of an LLC, and one of your members decides to sell his or her stake to an outsider, who chooses to blog on (the horror!) international law instead of privacy, or simply write multiple posts about Jennifer Aniston or other trivial sundries. Can you stop this nightmare before it starts? With difficulty. Transfer restrictions must be reasonable, which means (generally) that you need to draft an LLC buy-out as an alternative to an outside sale that provides a fair estimate of the worth of a stake in the entity. That isn't an easy to problem to solve. We started with a six month revenue figure and backed into a valuation: I'm sure that there are better options available. Similarly, we made provisions for non-voluntary exit (i.e., removing a member) with an appropriate valuation and notice provisions. This is a sensitive drafting problem, but a necessary one in a world where people sometimes simply get tired of blogging.

3. Intellectual Property: Does the blog own the posts, or do the authors? If the former, then you've got multiple problems: what about guests? Who will control licensing? If the latter, you've got to worry about protecting the Blog's marks (such as they are), and also make sure that you set up a licensing system within the operating agreement. We settled on a scheme were the authors retained IP rights, except that the Blog will own its own marks, such as they are.

4. Distribution of Profits: The options here are legion, and fraught with potential hard feelings. Starting with the presumption that most blog LLCs will want to be taxed like partnerships, the legal problem is to find a way to distribute revenue in rough proportion to contributions to the operation of the company. I've heard other blogs have very complicated formula to distribute cash, like, say, dividing the total numbers of words posted by some denominator and then creating an index productivity score. This seems to me to create bad incentives</