Archive for the ‘Blogging’ Category

Happy 10,000th Post!

posted by William McGeveran

I was just working on my next guest post when I noticed a little statistic in the dashboard: there have been 10,007 posts to Concurring Opinions. Which means this lil’ ol’ “blawg” passed a significant milestone about a week ago that deserves some celebration — and heartfelt  thanks to Dan Solove and the cadre of other permanent bloggers who keep it going.

By my count, post number 10,000 was a pointer to a new essay about the Kirtsaeng decision in the Stanford Law Review Online. That’s appropriate, because spreading the word about interesting and timely legal scholarship — especially stuff that appears in less traditional places like the journals’ online supplemnets — has been one of ConOp’s many services to the rest of us for years now.

  May 11, 2013 at 12:37 pm   Posted in: Administrative Announcements, Blogging, Law Rev (Stanford), Law School   Print This Post   2 Comments

Blog Cross Posting and Multiple Postings

posted by Lawrence Cunningham

What are the norms about whether you can manually post the same blog post more than once on the same blog or multiple times on other blogs or other media, such as newspapers?

There has been much fair criticism about cross-posing automatically, especially given the varying platforms of different social media.  But while there seems to be acceptance of manual cross-posting, it too comes in for criticism when done excessively just to get out there.

When is it too much or too little?  It seems that, as a general rule, it ought always be okay to re-post when bloggers at another site (or in another forum) invite the re-posting.  They predict another group of readers will find it valuable.

It also seems reasonable to ask, when being invited to post as a guest elsewhere, to be allowed to re-post on your own blog.  It may be fair in either case for a site to negotiate for a limited period of exclusivity, such as two weeks.

A more contextual approach would compare the probable audiences on different blogs.  If readership overlaps substantially, it imposes too great a tax on readers to cross-post.  But cross-posting across different blogs (or other media) with varied readership makes sense all around, to enhance each outlet, to distribute the ideas widely, and to offer readers more.

That leaves re-posting on the same blog.   This is usually done by “moving something to the front” and seems most acceptable when the content concerns something seeking reader reaction, such as a survey.  Otherwise, I’m not so sure about this practice.

We always feel as if some of our best blog posts are posted, contribute fleetingly, and then disappear.   But re-posting does not seem to be the answer.   The better way? Continue to write and expand on a topic, linking to the older posts, and trying to move the conversation along.

  March 30, 2013 at 9:17 am   Posted in: Blogging   Print This Post   4 Comments

Zelinsky on the Federal Law Clerk Hiring Crisis

posted by Danielle Citron

My colleague Aaron Zelinsky, who is visiting with University of Maryland School of Law before heading off to the Supreme Court to clerk, has written an incisive post at the Huffington Post on the federal judiciary’s failure to stick to the hiring plan, the troubles defection causes, and his recommendation for what we ought to do about it.  The entire post is here.  For a bit of his wisdom:

So what’s to be done?

If judges are serious about creating a new plan to fix this race to the bottom, there’s an easy solution: use the old plan. The old plan worked just fine. It only had one problem; it was voluntary, so it unraveled. The solution is simple: make the plan mandatory.

Remember the story of Odysseus, who wanted to hear the song of the Sirens but was worried that doing so would cause him to sail too close to the rocks and wreck his ship? To get around the problem he had his crew tie him to the mast.

The judicial branch tried this solution with the old hiring plan, but they made a critical mistake: Odysseus didn’t tie himself to the mast. He had his crew do it. That way he couldn’t get the knots undone. Otherwise, tying yourself up is about as useful as putting that piece of chocolate cake in the back of the refrigerator. Sure, it helps for about ten minutes, but then you open the door, move the mayonnaise to the side, and there it is.

Instead of voluntary compliance, the judicial branch should ask someone else to tie them to the mast. In the context of our constitutional system, the term of art for this is one you may remember from middle school civics: the separation of powers.

Congress has the power of the purse. It allocates funds for building courthouses, keeping the lights on, and employing staff. For instance, law clerks are employed under 28 U.S.C. 752 (for district courts) and 28 U.S.C. 712 (for circuit courts). If the judiciary really wants to fix the hiring plan, then judges should request that Congress condition salaries for law clerks upon them being hired in compliance with the judicial hiring plan. In other words, if you don’t play by the rules, you don’t have law clerks.

But wait, isn’t that unconstitutional? Nope. The Constitution prevents Congress from lowering the salaries of federal judges, but says nothing about their staff (anyways, such a law could be written to apply only to those hired in the future, not those already employed). And Congress isn’t infringing on the judicial power in any way – this law does not effect how judges make use of their clerks, just the timing of how they hire them. And it would leave the actual formation of the plan up to the judiciary.

Federal judges could ask Congress to make the hiring plan mandatory via a proposal from a special judicial working group, or even in Chief Justice Roberts’s year end report to Congress. And they should. A new, mandatory plan would be fairer for less-advantaged law students and late-bloomers, more efficient for federal judges, and maybe even better for you.

  February 1, 2013 at 9:57 am   Posted in: Blogging, Constitutional Law, Courts, Interviews   Print This Post   11 Comments

Blogging Ethics

posted by Gerard Magliocca

Here’s a question that I’ve pondered every once in a while.   Suppose I want to post about a legal issue that is relevant to a company in which I own shares.  What should I do?

A.  ”Recuse” myself and not post about the issue.

B.  Post but make it clear that I own shares in said stock.

C.  Post and say nothing.  Nobody cares about my posts–they won’t influence stock prices or legal arguments made about the company.

Thus far, I have done A.  I’d be curious to get input from other bloggers about what they think.

  August 1, 2012 at 10:34 pm   Posted in: Blogging   Print This Post   15 Comments

Stanford Law Review Online: The Dead Past

posted by Stanford Law Review

The Stanford Law Review Online has just published Chief Judge Alex Kozinski’s Keynote from our 2012 Symposium, The Dead Past. Chief Judge Kozinski discusses the privacy implications of our increasingly digitized world and our role as a society in shaping the law:

I must start out with a confession: When it comes to technology, I’m what you might call a troglodyte. I don’t own a Kindle or an iPad or an iPhone or a Blackberry. I don’t have an avatar or even voicemail. I don’t text.

I don’t reject technology altogether: I do have a typewriter—an electric one, with a ball. But I do think that technology can be a dangerous thing because it changes the way we do things and the way we think about things; and sometimes it changes our own perception of who we are and what we’re about. And by the time we realize it, we find we’re living in a different world with different assumptions about such fundamental things as property and privacy and dignity. And by then, it’s too late to turn back the clock.

He concludes:

Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.

Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”

Read the full article, The Dead Past by Alex Kozinski, at the Stanford Law Review Online.

  April 12, 2012 at 1:32 pm   Posted in: Anonymity, Blogging, Constitutional Law, Courts, Culture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Law Rev (Stanford), Politics, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Science Fiction, Supreme Court, Technology   Print This Post   3 Comments

Cyberbullying and the Cheese-Eating Surrender Monkeys

posted by Derek Bambauer

(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)

Introduction

New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read the rest of this post »

  February 21, 2012 at 10:20 pm   Posted in: Anonymity, Blogging, Bright Ideas, Civil Rights, Conferences, Constitutional Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, Education, First Amendment, Media Law, Politics, Privacy (Gossip & Shaming), Psychology and Behavior, Race, Religion, Social Network Websites, Technology, Web 2.0   Print This Post   3 Comments

Simple Justice and Blogging Exhaustion

posted by Dave Hoffman

Has Scott Greenfield retired from Simple Justice?  Scott, who routinely tweaks law academics from his beloved trenches, writes:

“Recently, it’s struck me that some of the new blawgers have written posts that mirrored things I had written years earlier.  They wrote good posts, and they did so without any clue that anyone had discussed the same issues before them. It dawned on me that I’ve gone through another circle, as happens when we get older. Every year, maybe day, new people come into the blawgosphere and it’s a rebirth, where everything old is new again.  As this thought occurred to me, I realized that my work is now part of the old, forgotten blawgosphere.  This is probably how it should be.

Five years in real time is a blink of the eye.  In internet time, it’s an eternity.  Thanks for reading, and keeping me honest.  With that, I offer this concluding video.”

Scott’s commentators are bewildered. Was this a farewell post, written (uncharacteristically) in an obscure style?  Was it some kind of publicity stunt?  Who knows – you’ll have to click to find out!

Regardless, I empathize with Scott’s complaint.  Though the Internet remembers everything you’ve done, what it reminds you most of all is that you are less than a speck in the eye of the multiverse.  Everything you write has been (will be) written by someone else, and no one will know your name next month.  You’ll find yourself drafting posts to reiterate points you’ve made before – not because you can express the idea any better, but because you’d like to climb a bit higher on the pile of sand in the hourglass. (In fact, I am 99% sure I’ve written this exact post before, but I can’t find it!)

I should know. This is my tenth year blogging! I started at Cravath in summer of 2002, when I created a small blog on constitutional law with a friend.  When I joined Temple in 2004, I switched to Prawfsblawg, and then to CoOp, which has been my blog home since the fall of 2005.  In that time, I’ve written several thousand posts (like Scott).  Very little I’ve written has managed to stick. On this blog, and others, things I’ve said in the past are repeated with no awareness that I once said them. How could they not be? There’s nothing new under the sun, and the very point of blogging is to get to not do preemption checks!  Of late, this blogging ennui, and despair about the possibility of productive conversation on some topics, has made me less motivated to blog, though I think it’s a temporary lull.

I’ve managed to stick with it this long mostly because I find blogging to be an ideal outlet for small ideas, which I wouldn’t write about in articles, and which I’d prefer to have some evidence of having came up with.  That’s not a utiliarian position. I doubt that blogging has made me a better scholar. I don’t think my blog posts have made a bit of difference in public debates.  (It might have, but the effect is incidental and contingent, not by design.) I certainly don’t think that Concurring Opinions has built a deep virtual community (cf. Volokh) to play with.  (Maybe we should?)  When I look around, I can think of only a few examples of law professors whose blogging has moved the needle.  Then again, the same is true of long-form scholarship!  Blogging is a cheap form of self-expression, and it’s nice to own my own printing press. It is as simple as that.

I thought I’d let this serve as an open thread for folks who’ve been at this for more than five years. What keeps you going?

  February 21, 2012 at 2:06 pm   Posted in: Blogging   Print This Post   9 Comments

Ben Stein and the ABA’s Facepalm

posted by Derek Bambauer

The American Bar Association is kicking off its 2012 tech show with an address by… Ben Stein. Yes, who better to celebrate the march of technological progress and innovation than a leading defender of intelligent design? Who better to celebrate rigorous intellectual discourse than a man who misquotes Darwin and fakes speeches to college audiences?

This is a pretty embarrassing misstep. The ABA is irrelevant in the IP / tech world, and this facepalm is a nice microcosm of why. (Wait, what is the ABA relevant to? Now that’s a hard question.) We geeks don’t like it when you dis science. Thanks anyway, ABA – maybe you should stick to having your judicial recommendations ignored.

Hat tip: health law expert Margo Kaplan.

Update: I found the perfect keynote speaker for ABA’s 2013 TechShow: Marshall Hall!

Cross-posted at Info/Law.

  February 20, 2012 at 11:27 am   Posted in: Blogging, Bright Ideas, Conferences, Culture, Current Events, Cyberlaw, Education, Humor, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Science Fiction, Technology   Print This Post   8 Comments

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.

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  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.

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  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

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