Category: Blogging


Rape, Consent, Deception, and the Blogosphere

[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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The Influence of Law Blogs (2006-Present)

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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Welcome to the Blogosphere, Pareto Commons

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.


Just Books

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.


The Best Privacy Blog

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.

Welcome to the Blogosphere: Religious Left Law

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.


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

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.


Privacy and Tattletales

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 More


FTC and Blogger Disclosure Rules

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.


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

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 More