Archive for the ‘Blogging’ Category

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

posted by Derek Bambauer

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read the rest of this post »

  January 24, 2012 at 12:05 pm   Posted in: Blogging, Civil Rights, Constitutional Law, Courts, Criminal Law, Criminal Procedure, Current Events, Jurisprudence, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Supreme Court, Technology   Print This Post   9 Comments

Anthropological Introductions

posted by Biella Coleman

I would like to thank Danielle Citron for the invitation to pen some thoughts here on Concurring Opinions, and letting an anthropologist enter this legal arena. For my first post, I thought I would ease in slowly and give a taste of my work on hackers, geeks, and digital activism along with some of the themes and issues I will likely explore over the month.

Being there are not a whole lot of anthropologists of my ilk ( as I like to joke, I am an “arm chair anthropologist” who sits in front of her computer to study the high tech digerati of the west), I often get asked how or why I came to the study hackers, many people assuming that I had some hacker relative in my life or was myself a budding young hacker, both of which were not the case. Fitting to this blog, I got to hackers via the law. In 1997, when my friend—an avid free software developer—found out I had a keen but personal interest in patents and access to medicine, he sat me down to tell be about this legal concept called the “copyleft.” It was one of those moments that I still remember so vividly as I was nothing but floored, astonished, excited, and puzzled, especially when I learned of the full depth and extent of  this legal alternative that had been dreamed up, not by lawyers, but by geeks and hackers.

Over the ensuing year, which was my first year at graduate school, I delved so often and deeply into the world of free software, it was clear that I had to change topics or else I ran the risk of never finishing my degree. Alhough I routinely encountered skepticism—and still do—I felt like I struck anthropological gold: there was too much to explore, prod, and examine so at the time, I took a one hundred and eighty degree u-turn and have never returned.

My work on free software spans various topics, from the prevalence of humor among hackers to the multi-year legal battles over the right to write and release source code in the face of new regulations such as the Digital Millenium Copyright Act. Most broadly, I use free software to examine the cultural life of liberalism. By liberalism, I do not mean what may first come to mind: a political party that in Europe is usually associated with politicians who champion free market solutions, or in the United States, a near synonym for the Democratic party; nor is it just an identity that follows from being a proud, card-carrying member of the ACLU (American Civil Liberties Union) or the Electronic Frontier Foundation, although these certainly can be markers.  I take liberalism to embrace historical and present day moral and political commitments and sensibilities that should be familiar to most readers of this blog: protecting property and civil liberties, promoting individual autonomy and tolerance, securing a free press, ruling through limited government and universal law, and preserving a commitment to equal opportunity and meritocracy. These principles, which vary over time and place, are realized institutionally and culturally in various locations at different times, perhaps the most famous of these being the institutions of higher education, market policies set by transnational institutions, and the press, but are also at play on the Internet and with computer hackers, such as with those who develop free software, who have an accentuated commitment to free speech and make free speech claims to question what many see as not only the use but abuse of copyrights and patents. In one post I hope to examine and explore what it might mean to study liberalism from the vantage point of culture and hackers.

As I moved forward with my work on hackers it become increasingly clear that there was not only so much about this world that lay untouched and untapped (I think we know more about Papua New Guinea than hackers) but there are also many misperceptions and miconceptions shrouding our understanding of hackers due to existing literature and fantastical media representations. Part of the problem is that differences are often whitewashed away in favor of coming up with some simple and sanitized story about some unitary group of hackers. It is true that hackers can be grasped by their similarities: they tend to value a set of liberal principles: freedom, privacy, and access; they tend to adore computers—the glue that binds them together; they are trained in specialized and esoteric technical arts, primarily programming, system administration, security research, and hardware hacking; some gain unauthorized access to technologies, though the degree of illegality greatly varies; foremost, hacking, in its different forms and dimensions, embody an aesthetic where craft and craftiness tightly converge and thus tend to value playfulness, pranking,  and cleverness and will often perform their wit through source code or humor or even both: funny code.

Hackers, however, evince considerable diversity and are notoriously sectarian, constantly debating the meaning of the words hack, hacker, and hacking. I myself have been caught in the line of fire when hackers launch these accusations (“No, Biella, hackers are ‘breakers,’ not those who make ‘cool LED throwies in a hackerspace;” ‘No Biella, please get there is a distinction between ‘hackers and crackers’..”), so I will also be writing a post on this topic.

Most of my work on free software is completed, tucked and hidden away in academic journal articles read by perhaps a dozen or less people every few years, if even that many, and forthcoming in full-bodied form in a Creative Commons licensed book with Princeton University Press in the fall of 2012. But I am have become much more known for that which I once thought of as my niche, boutique side project: Anonymous. And it was so because for a a long period of time it existed as an esoteric, marginal sort of phenomenon: quite interesting, especially the activist manifestations (as Anonymous can be used for pure trolling) but over the last year exploded proliferated, and mushroomed in ways that make it very hard to pin down. In contrast to researching free software, which was relatively easy, working on Anonymous has tested my resolve so many times; they are truly difficult to study, for all sorts of reasons, some of which I will explore in a couple of posts I plan on dedicating to them as well.

 

 

 

  January 10, 2012 at 1:56 pm   Posted in: Blogging, Intellectual Property, Technology   Print This Post   5 Comments

Harassment, male privilege, and jokes that women just don’t get

posted by Kaimipono D. Wenger

A familiar theme comes up frequently in internet discussions: Women who complain about online harassment are just missing the joke.

As an initial descriptive matter, it’s pretty clear that women and men are often treated differently in online discussion. (Quick, name a case in which someone was harassed online. Was the person you thought about a woman? I thought so.)

A few months ago, John Scalzi noted that:

In my experience, talking to women bloggers and writers, they are quite likely to get abusive comments and e-mail, and receive more of it not only than what I get personally (which isn’t difficult) but more than what men bloggers and writers typically get. I think bloggers who focus on certain subjects (politics, sexuality, etc) will get more abusive responses than ones who write primarily on other topics, but even in those fields, women seem more of a target for abusive people than the men are. And even women writing on non-controversial topics get smacked with this crap. I know knitting bloggers who have some amazingly hateful comments directed at them. They’re blogging about knitting, for Christ’s sake. . .

I can contrast this with how people approach me on similar topics. When I post photos of processed cheese, I don’t get abused about how bad it is and how bad I am for posting about it. People don’t abuse me over my weight, even when I talk explicitly about it. I go away from my family for weeks at a time and never get crap about what a bad father that makes me, even though I have always been the stay-at-home parent. Now, it’s true in every case that if I did get crap, I would deal with it harshly, either by going after the commenter or by simply malleting their jackassery into oblivion. But the point is I don’t have to. I’m a man and I largely get a pass on weight, on parenting and (apparently) on exhibition and ingestion of processed cheese products. Or at the very least if someone thinks I’m a bad person for any of these, they keep it to themselves. They do the same for any number of other topics they might feel free to lecture or abuse women over.

It’s this sort of thing that reminds me that the Internet is not the same experience for me as it is for some of my women friends. (Emphasis added.)

That bears repeating: The Internet is not the same experience for men as it is for women. (No wonder women are numerically underrepresented in prominent internet discussion spaces.)

Why is the internet a different place for men than for women? There are doubtless a number of contributing causes, but one of the major factors is that the internet is largely a male-constructed discursive space, and internet discussion norms often build on assumptions of male privilege. Read the rest of this post »

  November 8, 2011 at 5:14 pm  Tags: Blogging, Civil Rights, feminism, gender, harassment, male privilege, online discussion  Posted in: Blogging, Feminism and Gender   Print This Post   42 Comments

Another Exciting New Blog: Just Enrichment

posted by Danielle Citron

It is exciting to welcome Just Enrichment to the blogosphere.  A group of graduating Harvard Law students started the blog to “continue the discussions [they]‘ve had over bagels and coffee” once they are no longer “sitting at the same kitchen table.”  Recent posts include “Anti-Drug Drug Users, Anti-Gay Gay People, and Anti-Gun Gun Owners: Hypocrisy and the Party System,” “The Birth Certificate, Why Now?,” and “Rethink Music Conference, Day 2: It All Comes Back to Statutory Damage.”

  April 28, 2011 at 3:38 pm   Posted in: Blogging   Print This Post   No Comments

Welcome to the Blogosphere: Corporate Justice Blog

posted by Frank Pasquale

There are a number of interesting posts up at the Corporate Justice Blog, which has discussed both the FCIC Report and the Levin-Coburn Report. It’s great to see this terrific group of scholars comment on economic justice issues in the blogosphere.

  April 26, 2011 at 10:53 pm   Posted in: Blogging, Corporate Law, Economic Analysis of Law, Financial Institutions   Print This Post   No Comments

Accreditation Sunlight

posted by Dave Hoffman

The Conglomerate Masters Forum on Legal Education is underway, and worth checking out.

In my post, I recommend that the ABA accreditation process should model itself after the SEC and move toward an exclusively sunlight model. David Zaring, perhaps surprisingly, favors regulation, though he admits that it makes legal academia “cozy.” Christine Hurt comes out against accreditation-driven tenure.  Other folks are posting shortly, so head over to the ‘Glom and join the discussion.

  March 22, 2011 at 2:53 pm   Posted in: Blogging, Law School, Law School (Scholarship), Law School (Teaching)   Print This Post   No Comments

Information commons and global democratic capabilities

posted by Philippe Aigrain

Most chapters in the Access to Knowledge in the age of intellectual property book have been initially drafted several years ago.  As we are holding from today a 3-days on-line symposium to celebrate the publication of the book, the ideas covered in the book prove to be not just resilient, but at the heart of a difficult but exciting democratic renaissance.

As many, I joined the Access to Knowledge (A2K) movement from a specific perspective. For me, it was advocacy for commons-based innovation and culture, and struggles against legal and policy mechanisms that threaten their potential. Underlying this involvement was a wider perspective: the idea that information and communication technology (ICT) are at the root of new human capabilities, and that the a proper legal, policy and cultural environment will decide how well we seize this opportunity. As I write these lines, the link between ICT, freedom of expression, democratic empowerment and human development is hot news. And with these news come new questions and challenges.

When my book Cause commune: l’information entre bien commun et propriété was published, I did not invest much energy to get it translated in English, as the aim of the book was to reformulate American knowledge commons-thinking for European, emerging and developing country readers. But one day, I received an email from a Tunisian translator, Abdelouadoud El Omrani, who offered to produce a voluntary translation of the book in Arabic. It ended being published as a paper book by the Qatari National Centre for Culture, Heritage and the Arts, disseminated on the Internet under a Creative Commons license. Let’s be frank, I am not sure that many people read this book in Tunisia (where many likely readers read also French) or in Egypt. That’s partly because the distribution of books (and even ideas) is still very segmented in the Arabic world, and partly because potential readers had more urgent things to do. However, the publication brought me to visit a few Arabic-speaking countries, and to meet Internet users, knowledge sharing advocates, lawyers and writers from the Arab world. I witnessed their courage, their inventive use of poetry and fiction (when they explained it to me, as I don’t understand any Arabic), whether in face of authoritarian regimes for instance in Tunisia or Egypt or in face of the totalitarian imposition of religious prescriptions on individuals, for instance in Saudi Arabia¹.

Read the rest of this post »

  February 1, 2011 at 2:06 am  Tags: a2k, agency, commons, democracy  Posted in: Blogging, Cyberlaw, Politics, Symposium (Access to Knowledge)   Print This Post   5 Comments

Online Symposium: The Fragmentation of the U.S. Health Care System: Causes and Solutions, Next Week

posted by Glenn Cohen

I am pleased to announce that in a collaboration between the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, and Concurring Opinions, Frank Pasquale and I are organizing an online symposium on this blog (beginning on Monday) on the new book The Fragmentation of U.S. Health Care System: Causes and Solutions.  This book, which grew out of a conference the Petrie-Flom center hosted in 2008 was edited by Einer Elhauge and featurs a stellar list of contributors from law, economics, medicine, management, and other disciplines.

Here is a description of the symposium on the book and the list of participants:

Why is our health care system so fragmented in the care it gives patients? Why is there little coordination amongst the many doctors who treat individual patients, who often even lack access to a common set of medical records? Why is fragmentation a problem even within a single hospital, where errors or miscommunications often seem to result from poor coordination amongst the myriad of professionals treating any one individual patient? Why is health care fragmented both over time, so that too little is spent on preventive care, and across patients, so that resources are often misallocated to the patients who need it least? This book approaches these broad questions with a highly interdisciplinary approach, including chapters by the nation’s leading professors in law, medicine, economics, health, business, and political science.

Professor Elhauge and the contributors provide a multifaceted approach to these multi-dimensional problems. The divergent perspectives and approaches of the contributors provide the reader with an understanding of the intricacies of the system and proposed solutions. The articles address possible causes of fragmentation, including laws that mandate separate payments for each provider, restrict hospitals or others from controlling or rewarding the set of providers treating a patient to assure coordinated care, and provide affirmative disincentives for coordinating care by paying more for uncoordinated care that requires more services. The authors examine and propose reforms that could make our health care system less fragmented, more efficient, and more effective.

This symposium examines the themes and claims of the book, and in particular examines their relevance in the post health care reform world.

The participants will be

John Jacobi

Anup Malani

Abigail Moncrieff

Gwendolyn Roberts Majette

Ani Satz

Richard Saver

Elizabeth Weeks

Vickie J. Williams

Check in Monday for the launch of the symposium.

  October 5, 2010 at 2:55 pm   Posted in: Blogging, Health Law, International & Comparative Law, Uncategorized   Print This Post   No Comments

Rape, Consent, Deception, and the Blogosphere

posted by Glenn Cohen

[Preface: As anyone who has ever taught material relating to rape in class well knows, this is among the most sensitive of subjects to discuss. Add to this the way in which typed words lose the inflections and other subtleties of spoken language, and any post on rape threatens to come off as insensitive by accident. With that in mind I have tried to write this post in as sensitive a way as I can, but I also ask the reader to bear with me if their first instinct is to take something I have said the wrong way.  Instead please give it the most charitable of readings]

I have been fascinated on two levels by the recent blogospheric discussion of an Israeli Supreme Court case holding that an individual could be prosecuted for rape when he engaged in sex with a woman that was not the product of sex or coercion because he deceived her as to his religion/ethnicity (he was an Arab not a Jew) and his relationship intentions (to ‘hookup’ instead of looking for a serious relationship leading to marriage).

On the first level, I was intrigued as to why the case got so much interest (and the holding largely hostility) in the blogosphere. I think there are many reasons, but I want to put out two (related but distinct) provocative hypotheses for reaction from readers: (1) The case taps in to some long-suppressed doubts held by some reader on whether non-forced or non-coerced sex counts as rape. (2) The case disturbs because it implies that men can be raped during sex that is not forced or otherwise coerced, and while there are contexts in which many are prepared to believe in male rape (e.g., the prison context) they harbor gender-asymmetrical views of rape  outside those contexts.

One level down, into the actual holding of the case, one thing I find fascinating about this area of law (rape by deception) is that it requires constructing a concept of “essential facts” for which deception vitiates consent. To try and think about this, consider the following cases:

1. Ahmed deceives Beatrice about his religion and ethnicity claiming that he was an orthodox Jew when in fact he was a Muslim Arab. (The most recent Israeli case)

2. Jon convinces Daphne he is his identical twin, Jack, whom Daphne is dating, and Daphne sleeps with him inebriated after a long night of partying.  A real case along these lines in Canada had facts like these.

3. Dil deceives Fergus into believing Dil is a woman when they engage in anal sex.  In fact, Dil is actually a man (inspired by this film).

4. Bree is an M to F transgender person who now passes as a woman. She leads David to believe she was biologically born as a woman when they have sex.

Read the rest of this post »

  August 30, 2010 at 9:44 am   Posted in: Blogging, Criminal Law, Feminism and Gender   Print This Post   9 Comments

The Influence of Law Blogs (2006-Present)

posted by Dave Hoffman

I asked my wonderful research assistant, Robert Blumberg (TLS ’12), to update the Yospe/Best study on court citation of blogs and the Best 2006 study on law review citation of blogs.  He used as a dataset the 2009 legal educator blog census (which we are currently updating – see future posts for details), excluded some general sites which happen to have a law professor as rare contributor (the Huffington Post), and ran searches in WL’s JLR database.  Since 2006, under those conditions, law blogs have been cited in the journals 5460 5883 times.  Here are the top twenty sites since 2006.  Total citations are in (parenthesis), 2006 rank in [brackets]:

1. FindLaw’s Writ (618)
2. The Volokh Conspiracy (402) [2]
3. SCOTUSBlog (305) [4]
4. Balkinization (259) [3]
5. Patently-O: Patent Law Blog (211) [8]
6. Concurring Opinions (162)
7. Sentencing Law and Policy (160) [1]
8. JURIST – Paper Chase (130)
9. PrawfsBlawg (122)
10. The Becker-Posner Blog (104) [10]
11. Conglomerate (102)
12. White Collar Crime Prof Blog (89) [12]
13. Election Law @ Mortiz (85)
14. Legal Theory Blog (85) [5]
15. The University of Chicago Law School Faculty Blog (76)
16. Technology & Marketing Law Blog (74)
17. Lessig Blog (73) [6]
18. The Harvard Law School Forum on Corporate Goverance and Financial Regulation (72)
19. Ideoblog (72)
20. Election Law Blog (69)

Overall, the top 20 represented around 63% of all citations over the four year study period.  In 2006, the top 20 represented 76% of  852 citations.  In 2007, the top 20 represented 68% of 1095 citations.  In 2008, the top 20 represented 61% of 1388 citations.  In 2009, the top 20 represented 63% of 1441 citations.  Finally, in 2010 (so far) the top 20 has represented 65% of 562 citations.  It is difficult to make out any clear trend lines in the data.  Even taking into account the lag time of publication for 2009 and 2010 volumes, the rate of citations to law blogs is not increasing. There is a very mild trend toward diffusion in influence, although the top blogs still appear to drive the conversation, even as the number of professors blogging increased.  In the aggregate, the top few  blogs would each (if considered to be individual scholars) be worthies on Leiter’s citation lists.

Read the rest of this post »

  July 23, 2010 at 11:36 am   Posted in: Blogging, Empirical Analysis of Law, Law Professor Blogger Census, Law School (Rankings), Law School (Scholarship)   Print This Post   12 Comments

Welcome to the Blogosphere, Pareto Commons

posted by Frank Pasquale

I just wanted to highlight the new blog in town, Pareto Commons, which will be focusing on regulation. I’m not a huge fan of Pareto, but I’ll forgive the name when it comes to great content like this:

Lawrence Baxter on hedge fund tax breaks.
Kim Krawiec on “rogue traders.”
Lawrence Baxter on BP.

It looks like Jennifer S. Taub has also joined the blog. Taub is an invaluable guide to the financial crisis, and I really look forward to more posts like this. Krawiec’s coverage of the saga of Kerviel (both at Pareto Commons and the Faculty Lounge) will also be an informative read for anyone intrigued by books like Adam Haslett’s Union Atlantic.

  June 22, 2010 at 10:20 pm   Posted in: Administrative Law, Blogging, Corporate Law, Economic Analysis of Law, Politics   Print This Post   No Comments

Just Books

posted by Daniel Solove

NYU Law School’s Brennan Center for Justice recently launched Just Books, a site that contains book reviews, author interviews, book excerpts, and roundtable conversations with writers and readers.

I think this is a great idea, as there is dwindling attention for books (especially academic books) in mainstream media publications. This is why at Concurring Opinions we launched the book review project.

Check out Just Books — the content so far looks great.

  April 8, 2010 at 11:09 pm   Posted in: Articles and Books, Blogging, Book Reviews, Law School (Scholarship)   Print This Post   No Comments

The Best Privacy Blog

posted by Daniel Solove

For quite some time, I’ve been relying on the blog Pogo Was Right to keep up to date on privacy news.

A lot of people aren’t aware of this blog, so I thought I’d give a shout out to it.  Pogo Was Right is really excellent — the best privacy blog in my opinion.  If you’re interested in privacy issues, be sure to read it daily.

Also, when students ask where they can get ideas for papers about privacy law issues, I recommend it because it presents a great overview of the latest privacy issues as well as an extensive archive.

  April 7, 2010 at 10:33 pm   Posted in: Blogging, Privacy   Print This Post   No Comments

Welcome to the Blogosphere: Religious Left Law

posted by Frank Pasquale

I’m late to the party here, but I wanted to put in a plug this Good Friday for the bloggers at Religious Left Law, an all-star group which includes Bob Hockett, Patrick S. O’Donnell, Eduardo Penalver, Steve Shiffrin, and Elizabeth Sanders. Recent “keepers” on the blog include a Catholic endorsement of health reform by Steve Schneck, Patrick S. O’Donnell on justice, inequality, and health, and Steve Shiffrin on hell. The last post reminds me of a First Things essay on “Purgatory for Everyone,” which I find bracing reading this time of year. And Schneck’s essay should be of interest to anyone who liked my colleague Kathleen Boozang’s eloquent take on HCR here at Co-Op last year.

  April 2, 2010 at 6:11 pm   Posted in: Blogging, Health Law, Religion   Print This Post   No Comments

Welcome to the Blogosphere: 20th & H Blog by Dean Fred Lawrence

posted by Daniel Solove

My dean, Fred Lawrence of George Washington University Law School, has started a new blog called 20th & H.  He writes:

20th and H was conceived as a place for me, as dean, to share with the GW Law community occasional thoughts about the Law School, legal education, and the legal profession, and to talk with you about some of the perspectives and insights I’ve gained through my work on campus and on the road.

Great idea!  Welcome to the blogosphere.

Fred has a recent post about laptops in the classroom:

For many of our students, the laptop has become almost an extension of their selves.  It’s how they take notes, research, write, and communicate; like it or not, those of us who were students in a pre-computer age simply can’t roll back the clock to a time when faculty members enjoyed the sight of rows of rapt faces and suffered at worse some inattentive doodling, note passing and an occasional nodding head.

Read more over at 20th & H.

  March 15, 2010 at 5:59 am   Posted in: Blogging, Law School, Law School (Hiring & Laterals), Law School (Rankings), Law School (Scholarship), Law School (Teaching)   Print This Post   No Comments

Privacy and Tattletales

posted by Kaimipono D. Wenger

What happens when a commenter’s privacy expectations collide with a would-be tattletale? This recent news story raises that question, with some interesting facts.

The story began when a pseudonymous commenter stopped by the St. Louis Post-Dispatch site and left a vulgar comment in the reader commentary section. The site admin deleted the comment, and the commenter re-posted it. At this point, the site admin decided to do some basic sleuthing. He traced the commenter’s IP address to a local school, and then he alerted the school (which turned out to be the commenter’s employer) that the vulgar comment had originated from its IP address. The school’s sysadmin was able to trace it from there, and the commenter ultimately lost his job.

I don’t know that any legal privacy rights have been violated here. (Dan?) But this does seem like overreaching by the site admin. Penalties like comment deletion or even banning are within the norms of site administration. Ratting someone out to their boss? I’m not so sure. Read the rest of this post »

  November 20, 2009 at 7:51 pm   Posted in: Blogging, Privacy   Print This Post   3 Comments

FTC and Blogger Disclosure Rules

posted by Deven Desai

As I argue in my essay Individual Branding the web presents important and amazing new possibilities for individuals to earn money and much of that potential will flow from one’s online reputation. In short, as one blogs or shares information in another form, one becomes a trusted source and can start extract money from those activities. I argue that those acts have the seeds of the possible destruction of Benkler’s world of sharing. Today the FTC has targeted a practice that arguably could increase the reliability of social network endorsements but will also upset many people.

As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to the agency’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” published Monday.” The FTC has not updated the Guidelines since 1980. The press release is here. The full text of the Guides are here (pdf). It is 81 pages, and I have not read it as yet but one thing people should know is that the effective date is December 1, 2009.

From the release it appears that the guides take am expansive view of what presents a moment to disclose “The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” CNET suggests that celebrities and “mommy bloggers” could be in trouble under the new rules. (Here is my prediction on the riposte to come but that I don’t think is accurate: “The FTC hates moms. In a down economy and with more and more people needing new ways to earn, the FTC actions are a direct attack on the importance of moms.” Now back to our regularly scheduled blogging.)

There are a ton of oddly connected things here. First, I just blogged about CITP and its FedThread project. That project would allow one to track this sort of moment rather quickly. Second, I was just at the Works In Progress Intellectual Property Conference at Seton Hall (which was yet again an excellent conference and for which everyone at Seton Hall deserves many thanks) where Zahr Stauffer presented a fascinating paper called Novels for Hire: Branded Entertainment, Copyright and the Law that I think will have something to say about these changes. As one blog notes, the practice of giving journalists freebies is common. Zahr’s paper shows how advertising and novels have had a rather curious interaction over the years. I think the paper will help understand the way writing and advertising have co-existed in either good or bad ways at different times with the shift to blogging fitting in as part of that history. The paper should be available soon so keep an eye out for it.

Electronics and other big ticket items seem to be where the concerns are. I look forward to finding out whether book, film, and music reviewers have to tell readers whether they received a review copy of the book. In general if one only says nice things about a review subject, one might receive more books etc. I think that non-professional blogs and other online information sources such as rating systems and FaceBook will allow people to find out whether they should buy a product (i.e., one might use a personal network to ask whether a product is good). That practice could undercut the quiet payment model.

Here is a possible way to understand this turn of events. 1) Secret endorsements die out and full disclosure of what has been given is the norm. 2) Small bloggers and big agencies are no longer able to seem credible as reviewers. 3) If people want independent reviews, they must pay magazines or other pay sources who can afford to buy the review items and avoid the taint of being given free stuff. 4) The public does not want to pay and instead reads the blog reviews with the disclosures and augments the research with social networks and user ratings which are more difficult to fake and possibly more reliable. 5) Yet again paid, professional independent news and reviews seems to be squeezed out.

  October 5, 2009 at 1:44 pm  Tags: Blogging, FTC, guides  Posted in: Blogging, Consumer Protection Law, Cyberlaw, First Amendment, Media Law, Web 2.0   Print This Post   8 Comments

Cyber Civil Rights vs Privacy in the “Skanks in NYC” case

posted by Kaimipono D. Wenger

As Dan rightly notes, the recent court order unmasking the anonymous author of the “Skanks in NYC” blog raises serious privacy concerns. He elaborates on those concerns in his post, arguing that the court used too low of a standard, that the lawsuit may have been frivolous, and that anonymity needs greater protection. Dan links to CyberSLAPP, an EFF project which combats abusive lawsuits that seek to unmask anonymous critics of corporations or public figures.

CyberSLAPP’s site contains a spirited defense of a right of anonymous criticism which reads, in part:

Why is anonymous speech important?

There are a wide variety of reasons why people choose to speak anonymously. Many use anonymity to make criticisms that are difficult to state openly to their boss, for example, or the principal of their children’s school. The Internet has become a place where persons who might otherwise be stigmatized or embarrassed can gather and share information and support victims of violence, cancer patients, AIDS sufferers, child abuse and spousal abuse survivors, for example. They use newsgroups, Web sites, chat rooms, message boards, and other services to share sensitive and personal information anonymously without fear of embarassment or harm. Some police departments run phone services that allow anonymous reporting of crimes; it is only a matter of time before such services are available on the Internet. Anonymity also allows “whistleblowers” reporting on government or company abuses to bring important safety issues to light without fear of stigma or retaliation. And human rights workers and citizens of repressive regimes around the world who want to share information or just tell their stories frequently depend on staying anonymous sometimes for their very lives.

Is anonymous speech a right?

Yes. Anonymous speech is presumptively protected by the First Amendment to the Constitution. Anonymous pamphleteering played an important role for the Founding Fathers, including James Madison, Alexander Hamilton, and John Jay, whose Federalist Papers were first published anonymously. And the Supreme Court has consistently backed up that tradition, ruling, for example, that an Ohio law requiring authors to put their names on campaign literature was a violation of the First Amendment. Indeed, the Supreme Court has ruled that protecting anonymous speech has the same purpose as the First Amendment itself: to “protect unpopular individuals from retaliation and their ideas from suppression.”

Of course, any sensible person would be opposed to silencing today’s James Madisons or Alexander Hamiltons. Is this really the correct analogy here, though? Is Skanks in NYC like the Federalist Papers? Read the rest of this post »

  August 25, 2009 at 11:40 am  Tags: Cyber Civil Rights, Privacy  Posted in: Blogging, Google & Search Engines, Privacy   Print This Post   3 Comments

Feminist Law Professors

posted by Elizabeth Nowicki

I have long been a fan of the blog “Feministlawprofessors.com.” The blog does a stellar job of raising and discussing various issues, the content of the blog is sound and reasoned, and Ann Bartow, the founder of the website, has graciously cross-posted some of my posts on prostitution over the past couple years.

Therefore, when Bridget Crawford, another of the main posters on feministlawprofessors.com, asked if I wanted to be named on their list of “self-identified feminist law professors,” I was thrilled to be asked. The question was raised, however: What does the label “feminist law professor” mean? If I was going to self-identify as a “feminist law professor,” I wanted to be sure I fit within the definition.

The reality is that those who know me well might not immediately fit me within the category of “feminist law professor,” if we consider only the older stereotypes about what a feminist “looks like.” To wit, I have never taught “feminist legal theory” (though I could and would, happily), I am Catholic, I am fairly conservative, I have never been a member of NOW, I have been a member of the Federalist Society, I am not offended by some things that are clearly “gendered” (such as men opening doors for women), and I have never burned a bra.

That said, I support equality for all, and I engage in activities intended to support this goal. Indeed, one of the many things that troubles me about the legal profession is the fact that women make up roughly 50% of all law students but only about 19% of all law firm partners and less than 20% of all Supreme Court justices.

But does supporting equality for all make me a feminist law professor? If so, wouldn’t – in theory – most law professors be “feminist law professors?”

I realize that this blog post should be many paragraphs longer, to address the issues raised by my questions above. But even with a blog post five times the length of this one, I doubt I could do the questions justice. So I will end simply by observing that, while I am happy to be labeled a “feminist law professor,” it is interesting to me that the phrase is not easily defined.

  July 13, 2009 at 7:07 am   Posted in: Blogging, Feminism and Gender   Print This Post   3 Comments

Thank You and Blogging Rate

posted by Elizabeth Nowicki

Many thanks to Dan and all the folks here at Concurring Opinions for again inviting me to guest blog. I cut my teeth guest blogging here and at TruthontheMarket.com (where I am still a regular guest blogger) three years ago, and it is nice to be asked back. Thank you.

My hope is to blog about at least the following topics while I am here:
1. Prostitution
2. Other People Who Have My Exact Name (Elizabeth A. Nowicki)
3. Corporate Governance, Shareholder Activism, and Boards of Directors
4. Delaware Jurists
5. New Orleans
6. Women in Legal Education

Note, however, that you should not expect me to blog with the speed and volume of someone like Blog Emperor Paul Caron, because my long-harbored reservations about the potential impact of blogging make me a bit of a slow poster. Since my first blogging days, I have worried about whether I could accurately convey in a blog post things like tenor, nuance, and jest, and my concern about this and other blogging issues (such as typos, grammar mistakes, being impolitic, failing to link to others, etc.) tends to slow me down. Given that the readership of this blog is huge, I am cautious about posting something that I have not vetted, edited, and re-written.

Similarly, I remember when another academic blogger posted on his blog about not securing a particular consulting project due to a position he had articulated on his blog. I do a bit of consulting, expert witness, and media work, so I try to be mindful about not committing on a blog to positions I might want to reconsider if I were asked to be an expert witness or to comment for the media. The notion that I might articulate a view on this blog that I might want to disavow 15 years from now makes me squeamish.

Moreover, as a general matter, I try to avoid even the potential for offending large constituencies in the legal or academic communities with something I have posted on a legal blog. For example, for several days, I have stewed over what, if anything, to post about the former Villanova Law School Dean and the prostitution situation. I caught the “news” about the prostitution situation right when it broke, so I could have beaten Caron for the title of “First Mainstream Legal Academic Blogger To Post On The Topic.” But my worry about posting something that might offend my friends at Villanova or members of the AALS Section on Women in Legal Education, of which I am currently the Chair, or colleagues in my religious community kept me standing down, gnashing my teeth, while Caron blogged the news. To be sure, I have blogged before about prostitution, multiple times, so it would be natural for me to chime in, but the notion that I could, with a single post, offend a huge range of people gives me pause. The internet should be used with care.

That said, the fastest post I ever drafted and posted was my post on the Supreme Court’s opinion in Stoneridge Investment Partners v. Scientific-Atlanta. I read the Supreme Court’s opinion and drafted my post in the two-hour window I had between classes on the day the opinion was issued, and I did not have time to re-read my post and labor over editing because I had to rush off to teach my second class. Yet the post has been one of my most well-received posts, and people seem to think it is at least decent. So I suppose I need to revisit whether my reservations about blogging, which prevent me from becoming a prolific poster, are actually based in fact. (Then again, the fact that Heidi Hurd’s sarcastic e-mails have led to likely unappreciated press solidifies my belief that releasing words across the internet is dangerous business indeed.)

Regardless, I look forward to posting here.

  July 7, 2009 at 2:05 pm   Posted in: Blogging   Print This Post   One Comment

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