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Caveat Blogger: Blogging And The Flight From Scholarship, Randy E. Barnett Jan 2006

Caveat Blogger: Blogging And The Flight From Scholarship, Randy E. Barnett

Washington University Law Review

While some law blogging is serious scholarship—and more could be serious scholarship than is now—almost all blogging, including most law blogging, is not serious scholarship and does not purport to be. Asserting that blogging is generally not a form of scholarship is no more an aspersion on blogging than is affirming that arguing in the Supreme Court is not scholarship. If undertaken by scholars, both activities can contribute constructively to one’s scholarship, and one might be a better advocate or blogger if one can draw upon one’s scholarly expertise. But it would be a mistake to ...


Scholarship In Action: The Power, Possibilities, And Pitfalls For Law Professor Blogs, Douglas A. Berman Jan 2006

Scholarship In Action: The Power, Possibilities, And Pitfalls For Law Professor Blogs, Douglas A. Berman

Washington University Law Review

A general debate concerning whether law blogs can be legal scholarship makes little more sense than a general debate concerning whether law articles or law books can be legal scholarship. Blogs—like articles and books—are just a medium of communication. Like other media, blogs surely can be used to advance a scholarly mission or a range of other missions.

Looking through the debate over law blogs as legal scholarship, I see a set of bigger and more important (and perhaps scarier) questions about legal scholarship and the activities of law professors. First, the blog-as-scholarship debate raises fundamental questions about ...


Regulating Bankruptcy: Public Choice, Ideology, & Beyond, A. Mechele Dickerson Jan 2006

Regulating Bankruptcy: Public Choice, Ideology, & Beyond, A. Mechele Dickerson

Washington University Law Review

For almost a decade, members of Congress fiercely debated legislation that would make it harder for people to discharge their debts in bankruptcy. The legislation was finally enacted on April 20, 2005, when the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) was signed into law. BAPCPA became fully effective for cases filed on or after October 17, 2005. At one of the earliest hearings on the proposed bankruptcy legislation, one of the bill’s sponsors suggested that “it is probably incorrect to suggest this is a credit card versus consumer problem.” Yet throughout Congressional debates on the ...


Blogs And The Legal Academy, Orin S. Kerr Jan 2006

Blogs And The Legal Academy, Orin S. Kerr

Washington University Law Review

This paper's focus is on today’s technology and ask whether blogs as we know them today are conducive to advancing scholarship. This paper's conclusion is that relative to other forms of communication, blogs do not provide a particularly good platform for advancing serious legal scholarship. The blog format focuses reader attention on recent thoughts rather than deep ones. The tyranny of reverse chronological order limits the scholarly usefulness of blogs by leading the reader to the latest instead of the best.

This doesn’t mean that blogs can’t advance scholarship. The impact of any blog depends ...


Blogging At Blackprof, Paul Butler Jan 2006

Blogging At Blackprof, Paul Butler

Washington University Law Review

Commenting on the papers by Doug Berman Lawrence Solumn, this paper raises questions concerning the emergence of blogging and its relationship with legal scholarship. These insights suggest that blogging can reach a wider audience and introduce a new way of connecting to certain issues in a way that law reviews cannot reproduce.


The Expressive Impact Of Patents, Timothy R. Holbrook Jan 2006

The Expressive Impact Of Patents, Timothy R. Holbrook

Washington University Law Review

Patents represent a quid pro quo between the public and the inventor: in exchange for disclosing the invention, the inventor receives the right to exclude others from practicing her invention. They therefore serve as a source of technical information. Patents also communicate information to markets and companies that serve to reduce various transaction costs, allowing more efficient transactions and investment. Patents consequently communicate various types of information beyond the technical. There is no reason, however, that such messages must be limited to the technical or the pecuniary. This Article explores whether patents, like other governmental acts such as legislation, can ...


The Public Face Of Scholarship, Larry E. Ribstein Jan 2006

The Public Face Of Scholarship, Larry E. Ribstein

Washington University Law Review

This essay focuses on the relationship between academic weblogs, or blogs, and journalism. I see academic blogs as a form of what I called in a separate paper “amateur journalism.” This comment focuses on the type of writing that is both most distinctive to scholars and connects most closely with professional journalism—that is, scholars’ use of blogs to engage with the public. Part I reviews the distinction between amateur and professional journalism and describes types of academic blogs. Part II focuses on “publicly engaged academic posts,” or PEAPs, and discusses the changes these blogs may bring to professional journalism.


Blogging And The Transformation Of Legal Scholarship, Lawrence B. Solum Jan 2006

Blogging And The Transformation Of Legal Scholarship, Lawrence B. Solum

Washington University Law Review

Will blogging somehow transform legal scholarship? That is the wrong question. The thesis of this essay is that blogging is essentially epiphenomenal—an effect and not a cause. Blogging is merely a particular medium—a currently popular form of Web-based publishing. Nonetheless, the emergence of academic legal blogging is an important indicator of other trends—real causes that are driving significant transformative processes. These trends include the emergence of the short form, the obsolescence of exclusive rights, and the trend toward the disintermediation of legal scholarship. Those forces and their relationship to blogging will be the primary focus of this ...


Do International Criminal Tribunals Deter Or Exacerbate Humanitarian Atrocities?, Julian Ku, Jide Nzelibe Jan 2006

Do International Criminal Tribunals Deter Or Exacerbate Humanitarian Atrocities?, Julian Ku, Jide Nzelibe

Washington University Law Review

Contemporary justifications for international criminal tribunals (ICTs), especially the permanent International Criminal Court, often stress the role of such tribunals in deterring future humanitarian atrocities. But hardly any academic commentary has attempted to explore in depth this deterrence rationale. This Article utilizes economic models of deterrence to analyze whether a potential perpetrator of humanitarian atrocities would likely be deterred by the risk of future prosecution by an ICT. According to the economic theory of deterrence, two factors—certainty and severity of punishment—are central to the reduction of crime after taking into account a particular individual's preference for risk ...


The Fatal Flaw Of Standing: A Proposal For An Article I Tribunal For Environmental Claims, Timothy C. Hodits Jan 2006

The Fatal Flaw Of Standing: A Proposal For An Article I Tribunal For Environmental Claims, Timothy C. Hodits

Washington University Law Review

No abstract provided.


Fired Up! In The Blogosphere: Internet Communications Regulation Under Federal Campaign Finance Law, Benjamin Norris Jan 2006

Fired Up! In The Blogosphere: Internet Communications Regulation Under Federal Campaign Finance Law, Benjamin Norris

Washington University Law Review

No abstract provided.


Blog As A Bugged Water Cooler, Kate Litvak Jan 2006

Blog As A Bugged Water Cooler, Kate Litvak

Washington University Law Review

Legal academics like to think that everything they write is scholarly. There is no surer way to offend a colleague than to suggest that some of his public musings are—gasp!—not scholarship. These comments do not seek to debate whether someone’s remarks on the Enron trial, or “gotcha” comments on the quality of the New York Times reporting, or critique of a recent Michelle Malkin book, or teaching notes thinly disguised as encyclopedic entries qualify as “scholarship.” For the purpose of these remarks, “scholarship” is anything that satisfies your budget committee.

A safer (and more productive) inquiry is ...


Wiley Rutledge, Executive Detention, And Judicial Conscience At War, Craig Green Jan 2006

Wiley Rutledge, Executive Detention, And Judicial Conscience At War, Craig Green

Washington University Law Review

John Ferren’s Salt of the Earth, Conscience of the Court is the first full biography of Rutledge, and the book not only lifts Rutledge from obscurity’s shadow; it also dispels any “limbo” surrounding the Court he served. Part I of this Article offers a brief biographical sketch showing that Rutledge deserves that much. His pre-judicial life as dean, legal reformer, and advocate of progressive politics provides context for his work on the bench. Also, Rutledge’s tale illuminates broader issues, including FDR’s transformative judicial appointments, early twentieth-century legal education, and the New Deal’s influence on both ...


A Case Study In Bloggership, D. Gordon Smith Jan 2006

A Case Study In Bloggership, D. Gordon Smith

Washington University Law Review

This paper makes the case that generally, bloggership should be treated as a form of service for administrative purposes. On the other hand, in close cases of tenure and promotion, a record of high-quality bloggership could weigh in a candidate’s favor on scholarship. This paper seeks to advance the process of legitimizing blogging as a useful scholarly endeavor—not as a substitute for long-form legal scholarship, but as a meaningful appendage.


Blogs And The Promotion And Tenure Letter, Ellen S. Podgor Jan 2006

Blogs And The Promotion And Tenure Letter, Ellen S. Podgor

Washington University Law Review

Writing promotion and tenure letters is an important service to the academy, albeit one that is seldom rewarded in comparison to the enormous time consumption involved. And although evaluations to date have all been premised on hard-text material, it is likely that soon the day will come that the packet of scholarship material arriving on one's doorstep will be a Website address that leads to a blog. In thinking about whether law blogs are legal scholarship, an important consideration in answering this question is how a blog should be evaluated for promotion and tenure purposes.


The Case Against Extending Hazelwood V. Kuhlmeier's Public Forum Analysis To The Regulation Of University Student Speech, Jessica Golby Jan 2006

The Case Against Extending Hazelwood V. Kuhlmeier's Public Forum Analysis To The Regulation Of University Student Speech, Jessica Golby

Washington University Law Review

No abstract provided.


Titles Of Nobility, Hereditary Privilege, And The Unconstitutionality Of Legacy Preferences In Public School Admissions, Carlton F. W. Larson Jan 2006

Titles Of Nobility, Hereditary Privilege, And The Unconstitutionality Of Legacy Preferences In Public School Admissions, Carlton F. W. Larson

Washington University Law Review

This Article argues that legacy preferences in public university admissions violate the Constitution's prohibition on titles of nobility. Examining considerable evidence from the late eighteenth century, the Article argues that the Nobility Clauses were not limited to the prohibition of certain distinctive titles, such as “duke” or “earl,” but had a substantive content that included a prohibition on all hereditary privileges with respect to state institutions. The Article places special emphasis on the dispute surrounding the formation of the Society of the Cincinnati, a hereditary organization formed by officers of the Continental Army. This Society was repeatedly denounced by ...


Are Modern Bloggers Following In The Footsteps Of Publius? (And Other Musings On Blogging By Legal Scholars . . .), Gail Heriot Jan 2006

Are Modern Bloggers Following In The Footsteps Of Publius? (And Other Musings On Blogging By Legal Scholars . . .), Gail Heriot

Washington University Law Review

Is legal blogging an antidote to the hyper-scholasticism that sometimes characterizes the legal academy today? Or is it a self-indulgence for legal scholars? It's hard to know. On the one hand, there is a proud American tradition behind the publication of concise but erudite essays aimed at a broad audience concerning the important legal issues of the day, starting with the Federalist Papers. It's hard to believe that neglecting that tradition in favor of a cloistered academic existence in which legal scholars write only for each other could be a good thing. On the other hand, even the ...


Blogging While Untenured And Other Extreme Sports, Christine Hurt, Tung Yin Jan 2006

Blogging While Untenured And Other Extreme Sports, Christine Hurt, Tung Yin

Washington University Law Review

According to Dan Solove’s March 2006 Law Professor Blogger Census (Version 4.3), roughly twenty-one percent of law professor bloggers in tenure-eligible positions are untenured, or as the authors here prefer, “pretenured.” The percentage of professors blogging who are pretenured, as opposed to tenured, is higher than the percentage of pretenured professors in the profession, so one might argue that the pretenured are overrepresented in the blogosphere. Pretenured academics may gravitate easily toward blogging for many reasons. Junior professors are likely to be younger and, as such, likely to be more familiar with and willing to embrace new technologies ...


The Ideological Component Of Judging In The Taxation Context, Nancy Staudt, Lee Epstein, Peter J, Wiedenbeck Jan 2006

The Ideological Component Of Judging In The Taxation Context, Nancy Staudt, Lee Epstein, Peter J, Wiedenbeck

Washington University Law Review

Despite the vast number of systematic empirical studies of judicial behavior, we know surprisingly little about how and why judges reach decisions in the business and finance context. This void is due, in part, to scholars’ abiding focus on controversies involving civil rights and liberties; indeed, based on the extant literature, it would be easy to conclude that judges, particularly U.S. Supreme Court Justices, spend their days interpreting civil rights–type legislation to the exclusion of all other types of laws. Yet this conclusion is wide of the mark—even a simple count of the Supreme Court’s plenary ...


Scholarship, Blogging, And Tradeoffs: On Discovering, Disseminating, And Doing, Eugene Volokh Jan 2006

Scholarship, Blogging, And Tradeoffs: On Discovering, Disseminating, And Doing, Eugene Volokh

Washington University Law Review

Now, more than ever before, we legal academics have to, at least in some measure, choose. Should we spend the bulk of our time discovering, with the reputational, professional, and emotional benefits that this produces? Or should we spend more of the time disseminating, mostly disseminating views that are our own but are based on others’ discoveries, with the very different reputational, professional, and emotional benefits that this produces?

Sure, it’s our choice, at least once we have tenure. But how should we exercise that choice? Yes, we’re probably better off both discovering and disseminating, if we’re ...


Tax Expenditures, Principal-Agent Problems, And Redundancy, David A. Weisbach Jan 2006

Tax Expenditures, Principal-Agent Problems, And Redundancy, David A. Weisbach

Washington University Law Review

This Article considers tax expenditures from two related perspectives. First, it analyzes how the incentives on Congress to use a tax expenditure change when principal-agent problems are considered. For example, it considers whether tax expenditures can reduce moral hazard or adverse selection problems created by delegations to expert agencies. Second, it considers the condition under which tax expenditures should be expected to be redundant with direct expenditures, as many are. The two perspectives—principal-agent problems and redundancy—are related because redundancy is often seen as a solution to the principal-agent problem. The Article concludes that both principal-agent concerns and redundancy ...


Libel In The Blogosphere: Some Preliminary Thoughts, Glenn Harlan Reynolds Jan 2006

Libel In The Blogosphere: Some Preliminary Thoughts, Glenn Harlan Reynolds

Washington University Law Review

People have been talking about libel and bloggers since the blogosphere was new, but the big news at this point is that, so far at least, there’s more talk than action—despite the millions of blogs, and probable billions of blog entries to date, there haven’t really been any major blogrelated libel cases, and the number in total is quite small. People are still talking about Blumenthal v. Drudge, a case that predates the blogosphere, when they talk about blogs and libel, and no major new case has emerged to take its place. The absence of a major ...


For Better Or Worse: A Discussion Of The Bia's Ambiguous C-Y-Z Decision And Its Legacy For Refugees Of China's One Child Policy, Meredith M. Snyder Jan 2006

For Better Or Worse: A Discussion Of The Bia's Ambiguous C-Y-Z Decision And Its Legacy For Refugees Of China's One Child Policy, Meredith M. Snyder

Washington University Law Review

No abstract provided.


Drowning In A Sea Of Confusion: Applying The Economic Loss Doctrine To Component Parts, Service Contracts, And Fraud, Andrew Gray Jan 2006

Drowning In A Sea Of Confusion: Applying The Economic Loss Doctrine To Component Parts, Service Contracts, And Fraud, Andrew Gray

Washington University Law Review

No abstract provided.


Anonymous Bloggers And Defamation: Balancing Interests On The Internet, S. Elizabeth Malloy Jan 2006

Anonymous Bloggers And Defamation: Balancing Interests On The Internet, S. Elizabeth Malloy

Washington University Law Review

As more and more people create personal websites and blogs, courts are more frequently asked to rule on questions related to the Internet boom. Specifically, an issue has arisen concerning what standard to apply in defamation suits brought against anonymous bloggers.9 Courts have wrestled with producing an appropriate standard for revealing the identity of an anonymous blogger who posts allegedly defamatory material on a message board or website. Recently, in Doe v. Cahill, the Delaware Supreme Court created a strict standard that makes it extremely difficult for defamation victims to bring suit against anonymous bloggers. The standard created is ...


The Battle Over The Soul Of Law Professor Blogs, Howard J. Bashman Jan 2006

The Battle Over The Soul Of Law Professor Blogs, Howard J. Bashman

Washington University Law Review

Unbeknownst to most of us outside the legal academy, there apparently is some disagreement over whether blogs that law professors operate should be regarded as legitimate scholarship and public service, or should be dismissed as a frivolous waste of time that detracts from the more traditional scholarly pursuits of writing massive law review articles and pontificating to the mainstream media on legal issues of public interest. As so often is the case, the answer to this conundrum is “It depends.” A law professor’s blog post or series of blog posts certainly can constitute scholarship or public service. But, merely ...


Why A Narrowly Defined Legal Scholarship Blog Is Not What I Want: An Argument In Pseudo-Blog Form, Ann Althouse Jan 2006

Why A Narrowly Defined Legal Scholarship Blog Is Not What I Want: An Argument In Pseudo-Blog Form, Ann Althouse

Washington University Law Review

Written in the form of a blog, this paper highlights the creative and communicative benefits of blogging, in particular legal blogging. This comment argues that aside from being intrinsically rewarding, blogging offers a concise scholarly model addressing a wider-ranger of topics. In this way, the paper claims that blogging has the potential for self-discovery and innovation in a way that legal scholarship might not.


To Remedy Or Not To Remedy: The Availability Of Disgorgement Under Civil Rico, Andrew Kinworthy Jan 2006

To Remedy Or Not To Remedy: The Availability Of Disgorgement Under Civil Rico, Andrew Kinworthy

Washington University Law Review

No abstract provided.


The Domestic Relations Exception, Domestic Violence, And Equal Access To Federal Courts, Emily J. Sack Jan 2006

The Domestic Relations Exception, Domestic Violence, And Equal Access To Federal Courts, Emily J. Sack

Washington University Law Review

This Article examines the classic issue of the allocation of jurisdiction between the state and federal courts, with an untraditional focus on family law, domestic violence, and women's access to federal courts. The piece first explores the domestic relations exception to federal jurisdiction, a longstanding judge-created doctrine under which the federal courts lack jurisdiction to hear divorce, custody, and other family matters traditionally reserved to the states. In the recent case of Marshall v. Marshall, 126 S. Ct. 1735 (2006), the Supreme Court had the opportunity to abandon the domestic relations exception (as well as its relative, the probate ...