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Article: Blogging Law Profs Assault Ivory Tower

This article from The National Law Journal, Blogging Law Profs Assault Ivory Tower, discusses blogging by law professors and the controversy over whether it constitutes scholarship.

Prof. Caron of TaxProf Blog (who is quoted in the article) has collected numerous responses from law professor bloggers here.

As a reminder, my previous collection of blog posts and articles on the topic of Academic Blogging is here.

February 28, 2006 in Academic Blogging, Blog Articles | Permalink | Comments (0) | TrackBack

Glenn Reynolds Interview on C-Span

I caught a portion of a C-Span interview with Glenn Reynolds of Instapundit. He himself provides a transcript here.

It was a good interview, although I wish Brian Lamb had pursued some deeper lines of questioning. I like Mr. Lamb’s low-key personal style, but sometimes his relaxed approach causes him to change subjects rather than draw out more substantial answers. (I don’t like the style of Charlie Rose as much, for example, but his interviews tend to be more penetrating.)

Many of the questions Mr. Lamb asked about Instapundit and blogging in general were on a somewhat introductory level. Still, Mr. Reynolds’s answers contained a lot of interesting information. And the most intriguing part of the interview had nothing to do with blogging.

Here’s what I found interesting (including from the transcript which I’ve since read):

There’s much more here, but that’s enough to give readers a taste. As the man himself would say, read the whole thing.

Also, I found the case involving Charles Reynolds, Glenn’s father, on Lexis. This was the case involving a Billy Graham revival which included a guest appearance by Richard Nixon. Charles Reynolds was fined $20 for protesting there. The case is Reynolds v. Tennessee, 414 U.S. 1163 (1974). The opinion was a simple denial of cert, over a brief but impassioned dissent by Justice Douglas. The case makes for interesting reading just on the facts alone.

Here is the conclusion of J. Douglas’s dissent:

“By grounding petitioner's conviction on his participation in the planning of the protest the state appellate courts place criminal liability on freedom of expression in its most pristine form. Petitioner's role was not contested. He attended the meetings and voiced his approval of some form of protest against the President's appearance, but it appears that at virtually every opportunity he urged the group to keep its protest peaceful and silent. He cannot be held liable because some members of the group chose to express their views in an illegal manner, particularly when, as here, there is no evidence that the group ever agreed to conduct its protest unlawfully or that petitioner ever acquiesced in such a decision. Nor was petitioner charged with conspiracy. I would grant the petition for certiorari.”  Reynolds, 414 U.S. at 1171 (1974).

February 27, 2006 in Interviews | Permalink | Comments (0) | TrackBack

Law reviews: “So…what’s it all for?”

UVA Law Professor Rosa Brooks said this on her blog:

In 1936, Fred Rodell famously declared that he would no longer publish in law reviews. In Goodbye to Law Reviews, (23 Va. L. Rev. 38 (1936)), Rodell issued his manifesto: "There are two things wrong with almost all legal writing. One is its style. The other is its content.... In the main, the strait-jacket of law review style has killed what might have been a lively literature. It has maimed even those few pieces of legal writing that actually have something to say."

As a junior professor, I dutifully churned out law review articles to fill my tenure file. Some of those articles, I think, may even have contained a few good ideas and a few good lines, but all of them suffered, to one degree or another, from the constraints of the genre. Worse yet, I'm fairly sure that practically no one outside my tenure committee and my mother has actually read the damn things (and I have my doubts about my mom). Not that this makes me unusual: the vast majority of law review articles are read by few people, and cited by even fewer. So... what's it all for?

That blog post of Prof. Brooks provoked an online debate, and was then picked up by the Wall Street Journal here. (I excerpted the article here.)

She said, “[T]he vast majority of law review articles are read by few people, and cited by even fewer.” A case in point is this practitioner I mentioned earlier here, whom I’ll quote again:

Blogs are better for me than L.Rev.s will ever be, in these ways:

·         I need speed. Often, we have a pending appeal that raises the same issues as a USSC case, so we need to do a supplemental brief, or adjust a brief-in-progress, and blogs that give us ideas are great…

·         I need easy-to-digest bites. Sorry, but we don't all have time to read your academic masterpieces.

·         I need a focus on what the law is or conceivably might be in my near future. I like insights into where the Supreme Court's jurisprudence is actually headed, not a Grand Unified Theory of what-might-be if 6 Justices retire and are replaced by Critical Legal Theorists or something.

·         I like being able to jump in discussions, and having other practitioners jump in as well….

So a professor doesn’t like writing law review articles, and a practitioner doesn’t like reading them. Furthermore, the professor writes about it on her blog, and gets cited by the Wall Street Journal.

The day after I first posted the practitioner’s comments above, I heard from him. Mr. Stephen Carney, who works in the Attorney General’s Office here in Columbus, somehow found out that I had quoted him on my blog, and wrote me a friendly and encouraging email (not during work-time!).

Now, I am not comparing my quoting of Mr. Carney to the Wall Street Journal’s quoting of Prof. Brooks. Despite my delusions of grandeur, I am very clear that 3L Epiphany is a minimalist enterprise. But my interaction with Mr. Carney is another example of the immediacy of blogs as compared to law reviews.

A professor writes on her blog, and very quickly a discussion ensues, which is picked up by the mainstream press. And I quote a practitioner’s comments on my little 3L blog, and hear from him (without seeking his response) the very next day.

These two examples together indicate the benefits of blogging. Blogs can provoke an online discussion and quickly get picked up by reputable sources like the WSJ. And blogs can stimulate instant communication in a way that traditional media simply cannot replicate.

To make one further point, seemingly unrelated but actually very relevant, it’s been awhile since I’ve listed locations of visitors to 3L Epiphany. I’m doing this for a reason, so bear with me. Here are some recent places where readers come from (some I may have mentioned before): Norway, Finland, Morocco, Belgium, Italy, Germany, France, India, Pakistan, Singapore, China, and Korea. Plus the Bahamas. I have also been visited by every state of the Union except Hawaii and South Dakota.

Why do I point this out? Because blogs can penetrate where law review articles and traditional scholarly forms cannot. Prof. Brooks said that “the vast majority of law review articles are read by few people.” But that is not true of blogs, including her own. And it is not even true of 3L Epiphany, regardless of its limitations.

My blog does not have a very high traffic rate, especially recently. But in the last two weeks I have been read by more people and in more places than will ever read my student note (except for the footnote located here).

All of this obviously does not mean that blogs are superior to law reviews in every respect. But there is no question that blogs provide impact, relevance and immediacy which law reviews lack by nature. And what’s true for some law professors and legal practitioners will become increasingly true for some law students as well.

February 27, 2006 in Blogs and Law Reviews | Permalink | Comments (0) | TrackBack

Apologies for Light Posting

I realize that posting has been light lately. The illness I described here is not over yet, and I've had a reaction to some of the medication. (I didn't want this to be a personal blog, but there you go.) In the midst of regular law school responsibilities, I am about to begin my MPRE 4-hour prep course. Right at this very minute, in fact; they just walked in with the books. Meanwhile I also have several editing assignments for journal to complete over the next 2 days.

Of course, this is nothing unusual (except the illness). Any law student can relate to the constant influx of work and responsibilities. But I did want to explain that my posting was not intended to be so light or sporadic, and I expect that this coming week, probably March 1st, I'll be able to have a fresh start with more consistent and substantial material.

Thanks for reading, and please stay tuned.

February 26, 2006 | Permalink | Comments (0) | TrackBack

Dialogue: Blogs and Debate Boards in the Classroom

I am posting a dialogue from the comments to this post. 

Porten: … Although it's not really "blogging about blogging," student operated internet debate boards would serve a similar function. I wonder if there are any?

3L Epiphany: … Internet debate boards and forums can be useful, and I've wondered whether they can serve as a model for a new form of discourse.

   On one hand, this is already going on in a spontaneous way. Students don't need to be encouraged to get involved in these debates, because they already do.

   But I'm suggesting (as in the text of my response to you) that blogs may provide a new model for legal education, by forcing students to respond to criticism. An Internet forum or debate board may be a better place for it. But I am speaking of something "official," for better or worse.

   Students can engage in informal debates themselves, on their own, for their own purposes. But perhaps being put on the spot constantly on your own blog, or in an Internet forum, is a better way of sharpening your argumentative and persuasive skills than getting called on in a class twice a semester. (TWEN is already an example similar to what we are talking about here.)

   Suppose a law professor said that you needed to begin a blog for his class, on his particular topic. Let's say it's Contracts. And every night before his class, or every so often, you are required to post a case brief, and your own analysis of the case, on your blog. Then you are also required to visit other students' blogs, evaluate their work, and post your comments. Other students will do that to yours. Then you are expected to respond to the comments on your blog. If other students have criticized your analysis, you must either acknowledge the points are valid, or vindicate your earlier analysis.

   Of course this could be quite time-consuming. But it provides a different model than the Socratic method within a classroom. Or perhaps this is a version of the Socratic method as applied to student blogs (depending on how the professor oversees it).

   These are just ideas, but I honestly think that students would not mind creating their own blog, and leaving comments on other students' blogs, and then returning to their own blog and responding to criticism. I also think that some professors would enjoy this approach.

Porten: It would seem to solve at least the volume problem your response includes... if there were a class discussion board rather than class blogs for every student, students could argue about cases, which provides the extra Socratic dialogue you seek, with the added bonus that professors can quickly survey the class's discussion, ascertain where major areas of confusion lie and offer assistance all without using lecture time (although, obviously the prof could confront major concerns in lecture).

3L Epiphany: I think that would be a wonderful way of doing it, blending a lecture format with out-of-class blogging, and using the two to compliment each other.

February 26, 2006 in Dialogues | Permalink | Comments (1) | TrackBack

Blog Definitions from Case Law

A “blog” is “an online personal journal with reflections, comments, and often hyperlinks provided by the writer.” Merriam-Webster’s Collegiate Dictionary (11th ed. 2005).

Bynog v. SL Green Realty Corp., 2005 U.S. Dist. LEXIS 34617 at *4 n.1 (S.D.N.Y. 2005).


Blog: “A Web site (or section of a Web site) where users can post a chronological, up-to-date e-journal entry of their thoughts. Each post usually contains a Web link. Basically, it is an open forum communication tool that, depending on the Web site, is either very individualistic or performs a crucial function for a company.”  (Jensen, Netlingo the Internet Dictionary (1995-2004) <WWW.Netlingo.com/ inframes.cfm> (as of June 11, 2004) see also Davis, Rants, Rulings, & Recipes (June 2004) Cal. Lawyer, pp. 22-25.)

In re Stevens, 119 Cal. App. 4th 1228, 1236 n.3 (Cal. Ct. App. 2004).


A blog, short for weblog, is an internet website where users interested in a particular topic can post messages for other users interested in the same topic to read and answer if they wish. When users post information on a blog, they often do so using a pseudonym referred to as a “user name.”

Cahill v. Doe, 879 A.2d 943, 945 n.1 (Del. Super. Ct. 2005) (reversed and remanded by John Doe no. 1 v. Cahill, 884 A.2d 451 (Del. 2005).


A blog is an internet website where users interested in a particular topic can post messages for other users interested in the same topic to read and respond if they wish.

Klehr Harrison Harvey Branzburg & Ellers, LLP v. JPA Dev., Inc., 2006 Phila. Ct. Com. Pl. LEXIS 1 at * 15 n.9 (Phila. Com. P. LEXIS 2006).

February 25, 2006 in Blogs in the Law | Permalink | Comments (0) | TrackBack

Addendum 2 to Academic Blogging

Here are four more excellent blog posts on Academic Blogging, from Chuck Tryon at The Chutry Experiment.

The fourth post is a response to the infamous (and pseudonymous) Prof. Tribble, and is thus added to the responses mentioned here.

February 24, 2006 in Academic Blogging | Permalink | Comments (0) | TrackBack

Addendum to Academic Blogging

Here are a couple of other articles on the subject of Academic Blogging that were not in the original list:

Rebecca’s article is one of several reacting to the pseudonymous Prof. Tribble, who criticized academic blogs here and here. Reactions from professor-bloggers to Tribble's articles are here, here, here, and here. In my collection of posts and articles on Academic Blogging, Prof. Tribble’s articles appear under the “Chronicle of Higher Education,” and the four posts from (non-law) professors are under “Cliopatra et al.”

I am currently seeking new articles and blog posts on the topic of “Academic Blogging,” especially concerning the matter of whether blogging is a legitimate form of scholarship. (My personal opinion is easy to guess.) Readers may feel free to suggest additions in the Comments.

February 24, 2006 in Academic Blogging | Permalink | Comments (0) | TrackBack

Who's to Blame?

My re-posting of “Academic Blogging” took much longer than I expected, mainly because of formatting problems. I broke it down into sections after posting it as a whole led to all sorts of strange events (green fonts, triple-sized letters, etc.). Even the simple act of transferring the content from an old post into a new one caused problems. I used a Word Document as a transitional stage, and perhaps that made things worse. (But doing it directly within Typepad didn’t work either.)

I tried to re-post everything when I found out that section 1 of Academic Blogging has a “3” in its URL, and vice-versa, but I encountered the same obnoxious formatting problems. So I let it be.

Perhaps the fault lies with Typepad. But based on past experience, I think these people are to blame.

February 23, 2006 in Blame | Permalink | Comments (2) | TrackBack

New Introduction to Academic Blogging Collection

A consistent theme of 3L Epiphany is that blogs are superior to traditional forms of legal scholarship in a multitude of ways. For this reason, I have:

But most importantly, I collected numerous blog posts and online articles on the topic of "Academic Blogging" and made them available as an online resource. One of the advantages of a blog is that it can assemble a tremendous amount of material from different places, localize them in one spot, and make them instantly available to the reader. But a counteracting disadvantage is that the localized collection can disappear from view as new material is added to the hosting blog.

The collection on "Academic Blogging" is one example of how a conversation in the blogosphere can be compiled, organized and structured. (And this matter of blogospheric structure is another theme of 3L Epiphany.) Yet the difficulty a reader would have in locating such a collection, even on this very blog where it was first displayed, manifests a limitation to the medium that will need to be addressed if blogging is to become a sophisticated form of academic scholarship.

Because a new Wall Street Journal article on law reviews has reinvigorated the discussion over whether blogging is an acceptable medium for legal scholarship, I am re-posting the entire compendium on "Academic Blogging" below. My hope is that new readers will discover and appreciate the insights offered by all of this diverse material. I believe that the compendium itself is a prime example of the advantages blogs enjoy over traditional scholarship, including law reviews.

In the context of the WSJ article, I would single out three articles from the collection as being particularly on-point regarding the relationship between blogs and law reviews. These articles are:

I have re-posted "Academic Blogging" below in three separate sections to avoid formatting difficulties. Unfortunately the section numbers are reversed from the numbers in the URL's (another blogging frustration). If readers would like the collection as one complete post, they can go to the original here. The sections of the re-posted version are listed here:

Academic Blogging

February 23, 2006 in Academic Blogging | Permalink | Comments (1) | TrackBack

Academic Blogging (1)

[Originally posted on Feb. 5, 2006:]

I have compiled a collection of blog posts and articles on the subject of “Academic Blogging.” I have divided them up according to the blog or online journal in which they appeared, and then followed blog protocol by listing them in reverse chronological order. The majority of the blog posts are from law professor “blawgs,” but a few are from other academic disciplines.

I fully realize that this collection, completed two weeks ago, is already outdated and that there are new discussions going on. But I believe that this compendium indicates the growing importance and sophistication of the legal academic blogosphere. In this context it is relevant to ask whether law student blogs will also achieve greater respectability, and contribute something of value to legal scholarship.

My intention is to demonstrate the value in organizing and structuring conversations from the blogosphere. These blog posts and articles offer extremely significant insights into the nature of academic blogging. This compendium fixes these insights into one readily accessible location, so that this resource can provide a foundation for future discussions.

I have also made available a Word document for downloading, containing all of the posts and articles with their URL's. I would like to thank the professors who contributed to this project and who offered me further suggestions. 


February 23, 2006 in Academic Blogging | Permalink | Comments (0) | TrackBack

Academic Blogging (2)

Academic Blogging

A Collection of Blog Posts and Articles

I. American Constitution Society Blog

Bridging the Divide Between the Blogsphere and Law Reviews, Liz Aloi (Oct. 29, 2005): link

II. Althouse

Where are the women lawprof bloggers?, Ann Althouse (Jan. 09, 2006): link

Blogging: is it serious or fun?, Ann Althouse (Aug. 2, 2005): link 

Academic blog controversies, Ann Althouse (Nov. 16, 2005): link

III. Balkinization

More Proof that Blogging Can Be a Form of Scholarship, Jack Balkin (Sept. 29, 2005): link

IV. Becker-Posner Blog

Introduction to the Becker-Posner Blog, Richard Posner (Dec. 5, 2004): link 

V. The Chronicle of Higher Education

The Blogosphere as a Carnival of Ideas, Henry Farrell (Oct. 7, 2005): link

They Shoot Messengers, Don’t They?, Ivan Tribble (pseud.) (Sept. 2, 2005): link

Bloggers Need Not Apply, Ivan Tribble (pseud.) (July 8, 2005): link

VI. Cliopatria et al [History]

My Colleagues Speak Up…, Ralph E. Luker (Sept. 14, 2005): link

The Tribble Fall-Out, and what we can do about it, Rebecca Goetz (Sept. 13, 2005): link

Me and Professor Tribble, Mark Grimsley (Sept. 5, 2005): link

More Tribble, More Troubles, Miriam Burstein (Sept. 4, 2005): link

VII. Concurring Opinions

Blogging Without Tenure, Daniel J. Solove (Jan. 9, 2006): link 

Blog Posts: Conversation or Publication?, Daniel J. Solove (Nov. 1, 2005): link 

Editing the Blogosphere, Daniel J. Solove (Oct. 30, 2005): link 

Why Blogging Is Good, Daniel J. Solove (Oct. 6, 2005): link 

VIII. Conglomerate

(Sigh) Women & Blogging, Part 72, Christine Hurt (Jan. 8, 2006): link

To Delete or Not to Delete?, Christine Hurt (Oct. 30, 2005): link

Improving on the Perfection of Blogs, Christine Hurt (Aug. 2, 2005): link

IX. Crooked Timber

Blogging and Tenure, Henry Farrell (Jan. 10, 2006): link 

Academic Blogging, Brian Weatherson (Sept. 14, 2005): link 

Blogging and Academic Jobs, Henry Farrell (Sept. 14, 2005): link 

X. DanielDrezner [Political Science]

So I See There’s An Article in Slate, Daniel Drezner (Nov. 18, 2005): link 

So Friday was a Pretty Good Day…, Daniel Drezner (Nov. 5, 2005): link 

Seven Days Later…, Daniel Drezner (Oct. 14, 2005): link

So Friday Was a Pretty Bad Day, Daniel Drezner (Oct. 8, 2005): link 

Grad students: no blogs allowed, Daniel Drezner (July 8, 2005): link 

Can academics be bloggers? Daniel Drezner (Mar. 13, 2005): link 

Here Goes Nothing, Daniel Drezner (Sept. 10, 2002): link 

XI. Ideoblog

Blogging: distraction from what?, Larry Ribstein (Jan. 9, 2006): link 

Blogging and scholarly productivity, Larry Ribstein (Oct. 11, 2005): link 

Blogging, tenure and the incentives of tenure committees, Larry Ribstein (Oct. 11, 2005): link 

The Drezner tenure denial, Larry Ribstein (Oct. 11, 2005): link

Do Bloggers Just Want to Have Fun?, Larry Ribstein (Aug. 2, 2005): link 

Blogging and tenure, Larry Ribstein (June 22, 2005): link 

Blogging as academic publishing, Larry Ribstein (Apr. 12, 2005): link 

February 23, 2006 in Academic Blogging | Permalink | Comments (0) | TrackBack

Academic Blogging (3)

XII. Insider Higher Ed.com

Notes from the Underground, Scott McLemee (Jan. 18, 2006): link 

XIII. Instapundit

Blogging and Legal Scholarship, Glenn Reynolds (Jan. 8, 2006): link 

Misconceptions, Glenn Reynolds (Sept. 6, 2004): link 

Can a Blog Entry Count as Scholarship, Glenn Reynolds (June 17, 2003): link 

Little Things, Glenn Reynolds (Tech Central Station) (Feb. 20, 2002): link 

XIV. JohnHawks.net [Anthropology]

Hawks in Slate on blogging and tenure, John Hawks (Nov. 17, 2005): link 

XV. Legal Theory Blog

Blogging, Legal Scholarship, and Academic Careers, Larry Solum (Jan. 9, 2006): link

XVI. Leiter Reports

Is the Internet Hurting Scholarship?, Brian Leiter (Apr. 20, 2005): link

Posner on blogs, Brian Leiter (Dec. 6, 2004): link

More on Academic Credit for Blogging, Brian Leiter (Jan. 9, 2004): link

Academic Credit for Law Blogging?, Brian Leiter (Jan. 9, 2004): link

XVII. PrawfsBlawg

Scholarship or Distraction?, Dan Markel (Jan. 9, 2006): link 

More thoughts about blogs as a law professor’s medium, Doug Berman (Aug. 3, 2005): link 

Topical versus generalist blogging, Kaimi Wenger (Aug. 2, 2005): link 

More on the academic value of blogging, Rick Garnett (Aug. 2, 2005): link 

Bloggership? On Blogs as Scholarship and Academic Blogging, Daniel Solove (Aug. 2, 2005): link 

How might we improve blogs as an academic medium?, Doug Berman (Aug. 1, 2005): link 

Blogs and Academic Disciplines, Ron Wright (July 29, 2005): link 

Blogarship? Scholarlog?, David Zaring (July 6, 2005): link 

Law Professor Blogger Census (Version 2.0), Daniel Solove (June 16, 2005): link 

Should Law Schools Subsidize Blogging? For SSRN’s sake?, Dan Markel (Apr. 12, 2005): link 

XVIII. Professor Bainbridge

Blogging and Tenure, Stephen Bainbridge (Oct. 13, 2005): link 

Bloggers Just Wanna Have Fun, Stephen Bainbridge (Aug. 1, 2005): link 

Academic credit for blogging, Stephen Bainbridge (Jan. 7, 2004): link 

Blogging as Academic Work, Stephen Bainbridge (Aug. 3, 2005): link 

XIX. Slate

Attack of the Career-Killing Blogs, Robert S. Boynton (Nov. 16, 2005): link

XX. TaxProf Blog

Blogging: Scholarship or Distraction?, Paul Caron (Jan. 8, 2006): link 

XXI. The Volokh Conspiracy

Blogging and Scholarship, Randy Barnett (Jan. 9, 2006): link 

Lawprof Blogging: Scholarship or Distraction?, Orin Kerr (Jan. 8, 2006): link 

Boynton on Academic Blogging, Orin Kerr (Nov. 16, 2005): link 

Drezner’s Denial and Academic Blogging, Juan Non-Volokh (pseud.) (Oct. 9, 2005): link 

Why Blogs Will Not Replace Law Reviews, Orin Kerr (July 6, 2005): link 

Query on Blogs and Legal Scholarship, Orin Kerr (July 5, 2005): link 

Blogging and Blog-Reading – Why and Why Not?, Eugene Volokh (Apr. 8, 2005): link 

The Future of Legal Scholarship?, Orin Kerr (Feb. 10, 2005): link 

Are Blogs and SSRN Changing Legal Scholarship?, Orin Kerr (June 4, 2003): link

February 23, 2006 in Academic Blogging | Permalink | Comments (0) | TrackBack

Temporary Hiatus

Earlier today I mentioned that I was ill, possibly with a bronchial infection. Well, it's gotten worse, and I'm actually writing this after getting back from the emergency room in the early morning. Nothing to be alarmed by, just a very nasty cough that won't let me sleep. So I've been prescribed some antibiotics and other medication. Most likely I will be taking it easy and not posting for the rest of the day. I'll resume posting tomorrow (Thursday). Thanks for coming.

February 22, 2006 in Previews | Permalink | Comments (1) | TrackBack

Update to Blog Usurpation

I mentioned earlier about an archived blog post from the Volokh Conspiracy that was taken over by another entity, “SEO Reviewer.”  A Massachusetts court case cites what appears to be the Volokh archives, but actually the website is in the hands of someone else. Fortunately it’s only a citation for a satirical song. The entity which has usurped the Volokh archives has not (other than the URL) pretended to be Volokh. While “SEO Reviewer” has done something improper and perhaps illegal, any reader who goes there will know that the host of the website has changed, and the content is no longer that which was cited by the court.

But what if the usurping entity was more deceptive and manipulative? And what if a court referred to the fake Volokh archives not for a song, but for the analysis of a statute? Although it would no doubt be rare, and certainly actionable, there’s always the chance that someone might take advantage of a defunct URL by usurping the website, claiming to be the original owner, and then exhibiting false content. And a court case citing that URL could become inadvertently complicit in a deception.

All of this brings up the obvious question: What should we do about URL’s in actual court opinions that become inaccurate? What if a court cites to something online, and the address changes? In the Volokh example it was only a song, but what if a court cites to something more substantial, such as an important document (as in the Booker case mentioned here)? It may not matter so much if it is just a satire being cited, but if it is something more important, there needs to be a way to verify that the source remains precise.

It is problematic enough if a URL becomes defunct for “natural” causes, i.e. a website changes its format, old material is automatically archived, a server goes out of business, etc. But the song citation example reveals a deeper potential problem. What if the URL is taken over by someone who keeps the address in order to attract visitors to his own material? Even worse, what if the original content is kept but manipulated in some way, so that a reader who follows the case citation will think the online source is still valid? Again, this would be very rare, but it could happen. And court opinions can’t afford to leave open that possibility.

One obvious solution to these problems would be for courts to employ people who constantly verify that any citations to online sources remain accurate. Perhaps this would be something that could be added to the ordinary duties of a judicial clerkship, provided it is not too time-consuming. The courts themselves would police their own decisions and make certain that cited URL’s have not become outdated, and the online content has not been changed. If it is discovered that a URL is no longer valid, then some parenthetical insertion could be made in the actual case indicating this to the reader.

This approach of courts employing people to verify online sources would ensure that the cases stay accurate in their citations. This is especially important in a world where blog archives can be taken over and used by someone else. If a court employee were to find that an online source is not accurate, he could leave the original URL in the text, and then insert a bracketed statement indicating that this URL is no longer valid. If there is an alternative location online for the material being cited, a new URL could be named.

Most people in the legal profession would reject the very concept of a retroactive change to a court opinion.  But if we are merely speaking of updating the URL of an online citation, I’m not sure there is any convincing reason to avoid making the correction. Is there any harm in letting the reader of a case know that a cited URL is no longer accurate, and that a different source for the information exists (or does not exist) elsewhere? At least for the electronic versions of cases, such as those on Westlaw and Lexis, it seems peculiar not to update the online citations, provided that any changes from the original are conspicuous.

I’d be interested to know if readers consider this a realistic idea.

Incidentally, the song which began this discussion is available at the “official” Volokh archives here. It was originally posted by Temple professor David Post.

Sean Sirrine said more about the song in his comments here. I remember hearing the original (Turtles) song on an “oldies” station when I was in junior high school. Now “oldies” stations play music from the 80’s. Ancient at 35.

February 21, 2006 in Blog Usurpation | Permalink | Comments (2) | TrackBack

Law Reviews Adapt to New Era (WSJ)

This article from the Wall Street Journal, Law Reviews Adapt to New Era, is a must-read regarding the transitional stage we are now in, as older forms of legal scholarship give way to blogs and online resources. Here are a few choice quotes from the article:

For years, publishing in journals has been a prerequisite to getting tenure or to moving to a more prestigious institution. And for just as long, scholars and laypeople have criticized the stultifying style of legal academic articles, which tend to be extraordinarily long (sometimes 100 pages or more), dense, and endlessly -- even sadistically -- footnoted.

But the most recent wave of criticism has been especially costly to the legal journals. More than any other time in the past, law professors are looking beyond law reviews, moving relevant and timely commentary to the Internet and the blogosphere.


The focus of much current scholarship -- theoretical work with no real application for judges, practitioners, or policymakers -- has reduced the audience for it outside the legal academy. Hard statistics on law review readership are hard to come by, but anecdotal evidence suggests that practitioners simply don't pay much attention to them these days.


The law reviews are also turning to another strategy -- moving content to the Internet -- to boost readership. The law schools at Harvard and Yale, for instance, have both introduced special web-based supplements to their print publications.

At the same time, some newer journals have jettisoned print publication altogether and are operating purely as online publications. Much like web-based publications outside of the law, they're geared toward briefer, more timely writings.

…These days, quite often a law professor will read, criticize, and even cite drafts of an article posted on SSRN before it appears in final form in a law review. The result is that law reviews are, in the minds of some, beginning to feel like yesterday's news.

The debate about law reviews isn't simply academic. Rather, the issue puts into question the role of what professors should do when they're not teaching. "Legal scholarship is at a crossroads," says Ethan Leib, a young professor aiming for tenure at Hastings College of the Law in San Francisco. "The question we're asking is: Is our job to advance knowledge through contributions to academic journals, or is it to contribute to the public conversation about law?"

February 21, 2006 in Blogs and Law Reviews | Permalink | Comments (0) | TrackBack

More Advice for 1L’s

Someone came here via Google by searching for “Advice for 1L’s.” This brought the reader to my post on 1L Blues. That same Google search also led to other helpful blog posts. I am listing a collection here from Letters of Marque. While it is mainly intended for 1L’s who are just beginning law school, it is still valid for students already proceeding full-speed ahead. I originally was going to copy and paste the items one by one, but after searching for most of them I found out that Blawg Wisdom already did the work for me here a year-and-a-half ago.

Heidi at Letters of Marque begins each post with the appropriate caveat that this is not “advice,” but simply a description of what worked for her. However, she clearly knows what she’s talking about, and her suggestions and experiences are well worth paying attention to. While I won’t necessarily endorse every single thing she says, I suspect that her first-year GPA is higher than mine. So here’s the collection:

1. Choosing a route

2. Reading a law school case (for the first time)

3. What to get from your classes

4. Being Socratic Bunny

5. Fun and Focus

6. Ladies and Gentleman, start your outlines

7. What's a "blueprint" anyways?

8. An incomplete list of generalized tips

9. The use of subjective knee-jerk reactions in law school

10. Exam Tips 1: Why IRAC Sucks

11. Exam Tips 2: Approaching the Question

12. Exam Tips 3: What you should get out of practice exams

February 21, 2006 in Advice for Law Students | Permalink | Comments (0) | TrackBack

More Posts Coming

I have several more posts coming, but I've come down with an illness (some kind of bronchial infection) so I rested this morning. I'll catch up later in the afternoon. You can file this in the "Thanks for telling me about your life, but I really didn't want to know that" department.

Visitors desiring something new should read Sean Sirrine's comments under the post immediately below. Thanks very much for all the info, Sean, and the compliment as well! I'll also have more to say about this particular example later, namely what to do about court citations to online sources with URL's that change, or even worse are taken over by an unknown entity.

There's also new comments under "Response to Prof. S" and "Response to Porten." One advantage of a blog is that the comments to previous posts can continue ad infinitum, leading to an ongoing discussion underneath the blog-surface. A disadvantage is that readers may not know about these new comments unless it's pointed out to them, because they're not inclined to re-read old posts.

Anyway, please stay tuned, same blog-time, same blog-channel.

February 21, 2006 in Previews | Permalink | Comments (0) | TrackBack

Can Blogs be Usurped by Hostile Takeover?

An unusual district court case begins with this song, to the tune of “So Happy Together” by the Turtles.

“Imagine me as God. I do.

I think about it day and night.

It feels so right

To be a federal district judge and know that I'm

Appointed forever.

I was anointed by the President,

And revelation told him I was heaven-sent.

And Congress in their wisdom granted their consent.

Appointed forever.

I'm a federal judge

And I'm smarter than you

For all my life.

I can do whatever I want to do

For all my life.


Even at the very worst,

If you take me up to get reversed,

You'll have to get the circuit court to hear you first,

And that takes forever.”

Suboh v. Borgioli, 298 F. Supp. 2d 192, 194 (D. Mass. 2004).

What’s especially interesting is that, according to this case, these lyrics are available at http://volokh.blogspot.com/2003_04_13_volokh _archive.html#200154916.  But if you go to the online citation, you get a website entitled “SEO Reviewer,” which appears to be a collection of information about search engines. The posts collected there now are mainly about Google.

How did SEO Reviewer take over the URL to the Volokh archives? What process was involved? And are there any laws making such a takeover illegal (if done without consent)?

Nate Oman previously posted about this at Concurring Opinions here, and asked similar questions. One blogger commented: “I'm not sure how solid those claims are but I am pretty sure the ACPA extends to unregistered marks and personal names protectible as marks. Where the alleged infringer engages in no commercial activity (or engages in criticism) the claims are a bit tougher, but here, where driving traffic is the sole goal, courts may be more receptive.

If any reader knows more, please comment.

February 20, 2006 in Blog Usurpation | Permalink | Comments (4) | TrackBack

Student RA's for Blogging Professors

I suggested here (and followed up here) that law students should consider working as a research assistant for a law professor who blogs. I corresponded with a number of such law professors. Below I am listing a few who liked this idea, some of whom already employ an RA for this purpose. I quote them with their permission. I would like to thank them and all of the other law professors who responded to my inquiries. 

Prof. Gerry W. Beyer (Texas Tech), Wills Trusts and Estates Prof Blog:

“I think research assistants can be a tremendous help to professors who run blogs. So far, I have used my RA to research some postings and to make postings when I am beyond the reach of computers. (I pre-write the postings and then she posts them at the appropriate times.) So, I would definitely encourage students to approach blogging professors!” 

Prof. Eric Goldman (Marquette), Technology & Marketing Law Blog: 

“I have already done this. See here, here, and here. [URL’s changed to “here.”] I would probably not work with any random student, but I plan to ask for student contributions and research help from time to time. I also have an ongoing relationship with a student who helps me with blog administration.”

Prof. Adam Kolber (San Diego), Neuroethics Blog:

“As a general matter, I think that student RAs can absolutely help with blogging.  My blog, however, lends itself to this a bit less because I don't post a whole lot of commentary, and I've been able to handle it myself pretty well.  But someday in the future, I might want to have a student help with the blog.” 

Prof. Tom Mayo (SMU), Health Law Prof Blog:

I would definitely pay a research assistant to help with my blog. I already pay for one to help with a weekly listserve message to the state bar Health Law Section, and I've paid for research help on my web pages, which have a couple thousand links.  First preference would be for an SMU student to help (and get paid with SMU funds), of course . . .

Prof. Eben Moglen (Columbia), Freedom Now Blog: 

“It's an interesting idea.  As people shift away from law reviews, as they must, other forms of ‘clerkship to scholarship’ will have to evolve, and this is one.” [Prof. Moglen also indicated that he himself is not in need of such an RA.]

Prof. Susan Smith (Willamette), Environmental Law Prof Blog:

I think that is a great idea. I'd love to have an RA available for this purpose.” 

February 20, 2006 in Futuristic Summer Job | Permalink | Comments (0) | TrackBack