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Truth on the Market: Why Build When You Can Buy?

As Dan noted, today a new blog, Truth on the Market, went online. As I expected when I first welcomed this possible development, it seems likely that TOTM will be a regular stop in my daily internet rounds.

Keith Sharfman’s new post is worth further comment:

A blog’s market share is largely search-driven rather than reputation-based. And for search-generated hits, blog entries compete with each other on a level playing field. A blogger’s reputation cannot in itself trigger search hits in the absence of search-relevant content. This makes me confident that there’s still plenty of room for Truth on the Market in business law blogging, notwithstanding the large number of high quality business law blogs that already exist.

This is interesting. I think Keith is saying that off-line reputation doesn’t transfer easily to online blogs, and, therefore the barriers to entry for a new blog’s success are quite low. I agree (look at this blog’s success over the last three months). But I do think that it is easy to overstate this point, because to some degree search traffic is “distorted” by prior reputation through google pagerank. Around 20% of our daily traffic currently is driven here by google (and other search engines). I suspect we’d get significantly more hits if our page rank value (currently 3) were higher; we expect that if we continue to do a good job over time, we’ll build a virtuous cycle with google and obtain some type of early mover advantage with traffic. But still, as Randy Barnett said at the AALS blogging session, it is far from too late to start a new blog.

Incidentally, I wonder what explanation we could come up with for the TOTM folks’ unwillingness to simply buy an existing blog? (Like the market for virtual swordmasters, but more professionally useful!) Starting a blog takes time, and an existing blog’s traffic, google score, blogrolls, etc., surely have some value. If folks are looking for a platform, why build your own? A related question: why have so few bloggers followed in the Conglomerate’s footsteps and merged with another blog to grow an audience? (Maybe Ribstein’s HSR concerns chilled activity?) Such mergers would seem to be a dominant solution to some of the time and traffic worries that plague most bloggers. Group blogging also may help to ameliorate the political concerns with blogging recently in the news. (Note: if this blog is too [_____], blame Solove! I’m kidding. Blame Wenger.)

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Death With Dignity–Part II

Justice Kennedy’s opinion affirmed Oregon’s statute, and overturned Attorney General Ashcroft’s interpretive rule claiming that the use of controlled substances to assist suicide is not a medical practice and therefore unlawful under the CSA (Controlled Substances Act). Technically, the case involved whether the Attorney General’s interpretation should be accorded any deference; here, the Court concluded “no.”

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But I have to think that Oregon is very, very lucky regarding the timing of the case.

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Criticizing Referees and Judges

The conclusion of the collegiate and professional football seasons has brought about more than the usual number of questionable — and outright blown — calls. In response to Sunday’s replay-assisted overturning of a Pittsburgh interception, the NFL issued a statement informing fans that the call was wrong. The play should have been called — as it originally was — an interception, and the Steelers (likely) would have won the game without the drama that occurred after that point.

The controversies bring up a subject on which I plan to write this summer — the ways in which sports and the legal profession can learn from the ways each deals with criticisms of those who apply the rules. The differences are extensive and interesting.

In terms of actual independence, judges are much more insulated than are sports officials. Even in the states, where 80% of judges are elected, often terms are long and few judges have re-election challenges to worry about. (There are exceptions, of course.) And the federal system’s tenure and salary protection provide significant independence beyond the level enjoyed by state judges.

Sports officials, by contrast, may be fired more or less at will (though I am not familiar with the specifics of the NFL’s policy and invite comment from those who are). Sure, fans do not play much of a role in deciding whether to keep a referee employed, but when a significant error like this one occurs, some repurcussions are likely. At the least, Morelli will not work any more games this season, and he could even be fined, according to ESPN’s Chris Mortensen. On top of this, officials in the NFL and all amateur athletics are part-timers who have to hold down real jobs to earn a living. It is conceivable that officials’ dependence on other forms of income could lessen their ability to be independent in the face of criticism from employers, clients, etc.

In terms of criticism, though, it is judges who must endure more from the participants. Both sports officials and judges hear plenty of criticism from the public, of course, and sports officials must hear the criticism even when working. (“Kill the umpire,” etc.) But sports leagues have been draconian in prohibiting comment by players and coaches about officiating blunders. After Sunday’s Steelers-Colts game, for example, Steeler Joey Porter said, “I know they wanted Indy to win this game; the whole world loves Peyton Manning. But come on, man, don’t take the game away from us like that.” It is likely that he will be fined, even though the NFL agrees that the call was a mistake. (Porter, of course, accused the referee of bias and not just blowing the call, but there are plenty of examples where fines have been assessed merely for calling attention to officiating mistakes. The best quote on the subject is from Jim Finks, New Orleans Saints General Manager, who responded to a question about calls during one of his team’s games, “I’m not allowed to comment on lousy no good officiating.”

The legal profession, too, attempts to squelch free speech criticizing judges, but recognizes that First Amendment principles limit the extent to which parties, lawyers, politicians, and the public can be restricted.

My question is predominantly a practical one: Do restrictions on criticism of sports officials add to their respect? Does a sports league, or do individual officials, gain anything when the league prohibits a coach from saying that a particular official blew a call when replay after replay makes that fact clear to everyone? Is the speech ban prophylactic, in that the real goal is to eliminate comments relating to potential bias or limit violence? What, then, explains the leagues’ apparent acceptance of on-field criticisms of officials (e.g., Marv Levy: “You over-officious jerk!”)?

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Supreme Court Upholds Oregon’s Death With Dignity Act

In a 6-3 decision, the Court today upheld Oregon’s physician-assisted suicide law. With the Court’s makeup in flux, there was much speculation that if the conference vote was 5-4, the case might be held over for reargument. It appears that the key was that the federalism position won over Justice Kennedy, who was visibly torn at oral argument. Assigning him to write–a privilege of the most senior Justice in the majority–helped to keep him on board. A decisive majority meant there was no reason for Justice O’Connor not to participate. Off to class–more analysis later.

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Welcome to the Blogosphere: Truth on the Market

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The blogosphere is getting bigger, and today another law blog worth reading has been born: Truth on the Market. The blog will focus on law, business, economics and more. In the welcome post, Bill Sjostrom writes: “[W]e look forward to Dave Hoffman of Concurring Opinions disagreeing with us often.”

Bloggers include: Bill Sjostrum (law, Chase, N. Kentucky); Geoffrey Manne (law, Lewis & Clark); Joshua Wright (law, George Mason); Keith Sharfman (law, Rutgers-Newark); and Thom Lambert (law, Missouri). There’s also a final blogger, Pseudonym on the Market, who will soon become the leading mystery blawgger, as A3G has taken off his mask and Juan Non-Volokh will soon remove his.

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Playing the Illegal Alien Card

HalePicBio.jpgFor the past few weeks, I’ve been following a local Birmingham story on undocumented aliens. Mike Hale, the Jefferson County sheriff, has decided to join the battle against illegal immigration. He announced that his office will create a database of undocumented immigrants found in the county. According to the Birmingham News , “any illegal immigrant who comes in contact with deputies – whether as an offender, a county jail inmate or even a victim – is fair game for the database.” The data will be shared with the federal Bureau of Immigration and Customs Enforcement. (Local sheriffs apparently don’t have jurisdiction to arrest individuals for violation of immigration laws.)

Notwithstanding the need to maintain border control, this expansive policy strikes me as troubling.

First, I worry that it will stifle crime reporting by undocumented crime victims. This is bad all around. The victims cannot rest safe because the culprits are still loose. And since some offenders repeat their crimes, the policy will leave these folks free to target others – documented and undocumented alike. The sheriff’s office is apparently aware of this risk, but simply does not care. When asked about the danger of deterring crime reporting, a department spokesman said: “I hope that’s not a byproduct of this, and if it is, it’s unfortunate. However, we believe the greater good is having information on the people who are in our country illegally.”

Another problem: how will sheriffs know when they come into contact with an undocumented alien? The obvious approach would be to demand that anyone who is not fluent in English, or looks “foreign,” to prove her citizenship or produce a visa. This is pretty unappealing, but as far as I can tell, Hale hasn’t suggested a better idea. Sadly, policies that target minority populations fit too neatly into an Alabama political tradition. Birmingham Blues captures the views of some progressive Alabamians in this regard. I wonder if this sort of policy is common, or is simply a trial balloon.

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Making Sense of Public Attitudes Toward NSA Surveillance

poll1a.jpgMSNBC journalist Bob Sullivan, in his blog Red Tape Chronicles, writes:

Ask Americans something like, “Should the government be allowed to read e-mails and listen to phone calls to fight terrorism?” and you’ll get a much different result than if you ask, “Should the government be allowed to read your e-mails and listen to your phone calls to fight terrorism.” . . . .

In 2002, The Pew Research Center for People and The Press asked just those questions — and by simply dropping the word “your,” the number of people willing to support such government snooping jumped by 50 percent. Only 22 percent were willing to let the government peek when it was personal, but 33 percent were willing when it sounded like only someone’s else privacy was at risk, said Scott Keeter, director of survey research for Pew.

Another issue, when it comes to framing questions in polls, is whether warrants are mentioned. Consider the question above: “Should the government be allowed to read e-mails and listen to phone calls to fight terrorism?” I’d even answer yes. The government should be allowed to conduct a wide range of searches . . . . with a search warrant, however. Indeed, under the Fourth Amendment, the government can read email and listen to phone calls with a search warrant. [The Electronic Communications Privacy Act requires a slightly more protective order than a warrant to engage in domestic wiretapping.]

So the question should be posed as: “Should the government be allowed to read e-mails and listen to phone calls without a search warrant or the appropriate court order required by law to fight terrorism?”

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NSA Surveillance Whistleblower Russell Tice Speaks

NSA2a.jpgIn an interesting interview at Reason Online, NSA surveillance whistleblower Russell Tice explains what prompted him to speak out about the program:

As a signals intelligence officer, kids who go right out of college and work for the NSA, this is drilled into you, especially when you’re young: You will not do this. This is number one of the NSA’s Ten Commandments: You will not spy on Americans. Even after you’ve had all those introductory briefings when you’re a new employee, for the rest of your career, at least twice a year they call you in for a briefing, and this is always covered. “You will not do this,” they shake their fingers at you. “If you do this you can be thrown in jail.” And all of a sudden you find out the people who’ve been shaking their fingers are doing what they’re telling you is against the law and coming out with some cockeyed nonsense excuses for why everything’s OK. It’s sort of like having your parents drill it into you not to smoke cigarettes or do drugs or whatever, and then after you’re a good little boy coming home from school at 15 and finding your parents out on the balcony doing all that.

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Just Do It: Sports v.s. Academics

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So, another sportswriter has gotten under the skin of University of Oregon President Dave Frohnmayer. Awhile back, Sports Illustrated shined a national spotlight on the football program’s lavish digs.

Here is ESPN’s account of Phil Knight’s (read: NIKE’s) alleged influence on the track program and the university generally, prompting Frohnmayer to fire back.

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The Future of Law Libraries

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Via Brian Leiter, I read this post on a controversy at Tulane’s Law Library. The Law Librarian Blog, after detailing recent staff and policy shifts, wonders whether the University administration is using Katrina as an excuse to do away with an independent academic law library:

So my question is do the actions at Tulane reasonably represent a sub rasa determination by relevant powers to subsume the law library into the operations of the University library, demoting it from an independent entity and transforming it into a subordinated department? The recent spate of firings looks to be designed to preshape the structure of the law library for insertion into the main library’s organization.

If this is true, I wonder whether Tulane would defend itself by arguing that in light of recent developments, there is less of a need for an independent law library than there used to be. Or, more provocatively, “Law Libraries. Huh. What are they good for?”

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