Welcome to the Blogosphere: OrinKerr.com


There’s a tremor in the blogosphere today — a new blog has emerged, and not just a blog, but one by a true legal blogging heavyweight. The blog is OrinKerr.com. For those familiar with the legal blogosphere, you probably have heard of Orin Kerr — he’s a blogger at the wildly-popular Volokh Conspiracy, and he’s one of the most prolific bloggers there. Probably about 60% of the Volokh Conspiracy is by Orin . . . well, I guess I’m exaggerating a bit — but not by much. He’s also my colleague at GW, and even though he’s “misguided” on several legal issues, he’s still a nice guy and a good friend. And in my opinion, he’s one of the very best bloggers in the blogosphere.

Many questions remain shrouded in mystery. Is he leaving the Volokh Conspiracy? Why is he starting his own blog? And why doesn’t he finally admit that I’m right about the Fourth Amendment and he’s wrong? I know some of the answers to these questions, but go check out OrinKerr.com and the Volokh Conspiracy to let Orin explain it all himself.

From his introductory post:

Welcome to OrinKerr.com. My hope is that this blog will provide high-quality discussion and analysis of current legal topics, issues in the legal academy, and trends in the legal profession.

To ensure the highest quality comments, I have set up two ways to comment at this blog: with a registered account and without a registered account. Registered accounts are by invitation only, and permit an individual to post comments without prior review. I plan to invite a group of law professors, lawyers, law students, and journalists to register accounts. Inivitations will probably go out within the next week or so.

If you don’t have an account, you can still submit a comment. However, comments submitted by those without an account will not post automatically. I plan to screen comments by individuals without an account pretty carefully, so that only thoughtful and informed comments are posted.

If you’re interested in submitting an unregistered comment, you can maximize the chance I will approve your submission by offering informed legal arguments delivered in a careful, civil, and clear style. My plan is to offer registered accounts to individuals who establish a track record of submitting particularly good unregistered comments.

Well, I sure hope I get to be a registered commenter. If not, I take back all the praise I’ve said above about Orin’s blogging. . . .


The E-Print Experiment

idtheft4.jpgA short while ago, I blogged about an experiment I was planning — to switch from mailing out reprints of my recently-published papers to sending out emails offering a variety of ways to obtain the reprint (electronic copy via email attachment, SSRN download, or hard copy reprint via snail mail). I decided to go ahead and try the experiment, and many folks asked me to report back the results.

I sent out the following email:

I’m writing to distribute a final reprint of my recently-published essay, Fourth Amendment Codification and Professor Kerr’s Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747 (2005). The essay critiques Professor Orin Kerr’s argument that legislatures are superior to courts in creating the rules governing law enforcement and new technologies. Kerr recommends a deferential judicial approach to the Fourth Amendment when new technologies are involved. I contend that Kerr is wrong.

I’m trying a new experiment with reprints. I used to send out a mass mailing of reprints, a system that was expensive, not environment-friendly, and not very efficient, as I bet that only a percentage of recipients were interested in reading the reprint. Therefore, I’m trying out a new system, one that is designed so that copies of the reprint go only to those interested in reading it.

If you’re interested in reading a copy of my essay, just reply to this email and let me know which version you want:

1. Electronic Copy: I have an electronic PDF copy of the final published version, which prints out looking identical to how the piece looks in its final published format. I’d be happy to send you this version as an email attachment. Or you can download a copy for free at this link: http://ssrn.com/abstract=786266

2. Snail Mail Reprint: I have ordered a bunch of reprints for those who prefer them, and I’d be happy to send you one if you want.

If you prefer not to receive emails from me about my reprints in the future, just send me an email asking to be removed from the list. I promise that my emails will not be very frequent, as I can only publish so many papers in any one year!

Since my reprint list has been growing over the years — and since I could distribute my paper without incurring great expenses for my law school — I sent the email to approximately 350 people.

The result?

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Three Cheers for Categorizers!


Dan mentioned an indefatigable blogger who’s now taxonomizing over 600 law-related blawgs. I’ve heard a lot of critics of bloggers complain about “navel-gazing” in this field. But this type of work is exceedingly valuable, as I try to demonstrate in a recent piece on “information overload externalities.”

In my view, categorizers are a uniquely beneficial “genus” in the information ecosystem, and they deserve special solicitude from copyright law. Categorizers should be able to provide small samples or clips from whatever works they organize or index, without begging for licenses from the copyrightholders who own the sampled work.

Unfortunately, categorizers have been getting some rough treatment by courts lately. For example, Google recently lost a battle against “erotic image purveyor” Perfect 10 because the low resolution images on its “image search” might reduce Perfect 10’s sales to the “cell phone viewing” market. The Author’s Guild (which appears neither to represent all authors nor to be a guild) is suing to stop Google’s digital book indexing project—even though Google permits any aggrieved copyright owner to opt out! They believe Google should have to work out, individually, permissions for each of the millions of books they want to index.

Imagine if uber-taxonomizer 3L Epiphany had to ask permission to quote or cite to any of the blawgs he compiled. Are we really going to let a few cantankerous holdouts veto an effort to archive and index the world’s expression? I hope not, for a couple reasons…

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Sour grapes from Proulx

So the film based on your short story — a great film, by the way — wins a bunch of awards at various venues, but loses the Best Picture Oscar in an upset. What do you do?

If you’re Annie Proulx, I guess you write an incredibly tacky piece for The Guardian, in which you call the Best Picture winner “Trash” and rail on the Academy, its voters, and the award ceremony in an extended rant that is neither smart nor funny.

I guess I’m still young enough to be surprised when smart, articulate people use their considerable skills — and access to major media outlets — to embarrass themselves in the most conspicuous ways possible. Proulx may be an author capable of a very good story, but she comes across as utterly classless in her Guardian piece, taking the description “sore loser” to a new level. To slightly adapt the old saying: Better to keep your mouth shut and let people wonder whether you’re an ass, than to open it and remove all doubt.


Simmons-Gladwell Chat

Bill Simmons (aka, “The Sports Guy”) recently posted an email exchange he had with Malcolm Gladwell, the author of “Blink.” (Part I; Part II). Not surprisingly, it is packed full of funny, great moments. Two in particular stand out. First, Gladwell writes:

Why don’t people work hard when it’s in their best interest to do so? Why does Eddy Curry come to camp every year overweight? The (short) answer is that it’s really risky to work hard, because then if you fail you can no longer say that you failed because you didn’t work hard. It’s a form of self-protection . . . To me, this is what Peyton Manning’s problem is. He has the work habits and dedication and obsessiveness of Jordan and Tiger Woods. But he can’t deal with the accompanying preparation anxiety. The Manning face is the look of someone who has just faced up to a sobering fact: I am in complete control of this offense. I prepare for games like no other quarterback in the NFL. I am in the best shape of my life. I have done everything I can to succeed — and I’m losing. Ohmigod. I’m not that good. (Under the same circumstances, Ben Roethlisberger is thinking: maybe next time I stop after five beers).

This is an interesting idea, with potential application to agency theory that I haven’t seen laid out in the literature. But, the best moment in the chat comes in Part II, where Gladwell astutely observes:

It is possible, as “Moneyball” reminds us, to win with less by being smarter. But the point is not that if you have more money than someone else you automatically win more games. The point is that if you have more money that someone else you’re playing a different game than they are. Wal-mart is not competing against mom-and-pop corner stores. They’re in a different business. And it isn’t fun, at the end of the day, to watch a mom-and-pop compete against Wal-mart. It’s painful and pointless . . . Contests where one player has significantly more resources than another are not sports. They are marketplaces. To root for the Yankees or the Red Sox is the functional equivalent of rooting for Microsoft or General Electric. No thanks.

Exactly right! But here’s where I run into a problem. I love the Philadelphia Phillies, and like to think of them as an underdog, gutsy team, sort of like the last non-chain bookstore in town. But last year, the Phillies’ payroll was $95 million, 5th in the league. This year, it will be around $94 million. And they still can’t make the playoffs (this year, their new GM has basically admitted they have no chance.)

Which means that I’ve somehow convinced myself to be an insane fan of baseball’s equivalent of General Motors.


Vladeck’s Shining Hour

miamiu2.jpgI assume that many of our readers also follow Prawfsblawg, once home to Solove, Wenger and I. But in case you haven’t been to Prawfs lately, you are missing one of the most interesting discussions I’ve read on the legal blawgosphere in the five years I’ve been wasting spending time following it. The protagonists: Steve Vladeck (University of Miami first-year professor); his students; sundry law professors of the left; and some academics from the “right,” including Texas Law’s Assistant Prof. Kate Litvak. The discussion revolves around Steve’s decision to hold classes “off-campus” for the duration of a just-begun janitor’s strike.

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And a Fashionista Shall Lead Them

fashionattitude.jpgIn honor of Chloe’s triumph on Project Runway (design at right), I thought I’d blog about Chris Sprigman’s and Kal Raustiala’s brilliant paper, The Piracy Paradox: Innovation and IP in Fashion Design.

“Soft IP” rights (as copyright and trademark are often called) have grown enormously. In many industries, copyrightholders are insisting on the right to control even fragments of works. Trademark holders can protect not only their marks, but also aspects of the packaging and design of their products. Promoters of this trend claim that without strong rights, no one would invest in music, books, marks, or other easily copiable expression.

But IP protection apparently isn’t that necessary in the fashion industry. In couture, “copying is rampant . . . [y]et innovation and investment remain vibrant.” The authors attempt to solve this “piracy paradox” by describing how the “snob value” of high fashion is preserved via “induced obsolescence.” As a design gets copied, its value falls precipitously–driving early adopters to buy newer designs.

The article hits some sublime points, such as Jean Cocteau’s observation that “art produces ugly things which frequently become more beautiful with time. Fashion . . . produces beautiful things which always become ugly with time.” But it sidesteps some normative questions about induced obsolescence that might point to new directions for IP scholarship…

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Late Thoughts on the Barron/Roberts Debate


David Barron’s provocative post on Chief Justice Roberts’ citation practices attracted a great deal of attention this week. Barron argued that the Chief’s opinions to date have not cited any academic commentary, noting that “it’s worth watching — and challenging if it develops into an actual theory of constitutional decision making.” Steve Bainbridge retorted here: “[h]ow frustrating it must be for a con law scholar to face the prospect of decades of having the Chief Justice of the United States ignore you.” But, as Ethan Leib pointed out, law professors are used to a silent reception. (Tom Smith might agree.) A commentator to Ethan’s post noted that in fact the Chief did cite an article in his opinion in Martin v. Franklin Capital Corp., 126 S. Ct. 704, 710 (U.S. 2005). Rounding out the debate, Orin Kerr unearthed some previous opinions by Roberts citing treatises (cold comfort to young profs) and suggested such work made it “a bit less likely that Roberts will differ from the other Justices in his willingness to note or engage with scholarly commentary.”

There are a few balls in the air here. First, there is a predictive question: “Do the Chief Justice’s three opinions to date provide a sufficiently large data set to say anything about his citation practices in the future, and, if so, what?” Second, there is a descriptive question: “What is the current practice of the Court with respect to citing secondary authority, and how has that practice changed over time?” Finally, there is a normative question: “Is citation to secondary authority a metric that we should use to evaluate the strength of an opinion by the Supreme Court? Does it matter the type of case?” And, despite being a few days late, I’ve a few tentative thoughts on what is going on.

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What does Chevron deference have to do with the Appellate Body of the WTO?

Other than that administrative law and trade law are the two subjects that my students endure from me, the connection between Chevron v. NRDC and the GMO dispute between the United States and Europe is tenuous. Perhaps we can broadly characterize them as vectors through which the federal government vindicates its policies through judicial review – be it domestic and international. But perhaps not.

How often does the United States prevail in these fora?

Orin Kerr, a terrible writer, but a perspicacious empiricist, found that in 1995 and 1996 agency interpretations received Chevron deference 73% of the time in the courts of appeals (not online, but see 15 Yale J on Reg at 30). Now Cass Sunstein and Thomas Miles are at work on a larger study of Chevron deference over a longer period of time, involving three characteristic government agencies – and even if their results show less deference to the agency interpretation, the conventional wisdom is that there’s no way that the United States could lose before anybody more than they lose in the WTO.

But that’s not how the USTR calculates it. In its view, “the Administration’s record in WTO cases involving the United States is 13 wins and 10 losses in three and a half years, a 56% success rate. From 1995-2000, the U.S. record was 18 wins and 15 losses, a 54% success rate.”

Wins – or “wins,” as Joost Pauwelyn usefully reminds us – aren’t as hard to come by for fearsome American government litigators as one might think, no matter what the fora. I find the apples and oranges comparison interesting, although not rigorous.