Category: Blogging


Information commons and global democratic capabilities

Most chapters in the Access to Knowledge in the age of intellectual property book have been initially drafted several years ago.  As we are holding from today a 3-days on-line symposium to celebrate the publication of the book, the ideas covered in the book prove to be not just resilient, but at the heart of a difficult but exciting democratic renaissance.

As many, I joined the Access to Knowledge (A2K) movement from a specific perspective. For me, it was advocacy for commons-based innovation and culture, and struggles against legal and policy mechanisms that threaten their potential. Underlying this involvement was a wider perspective: the idea that information and communication technology (ICT) are at the root of new human capabilities, and that the a proper legal, policy and cultural environment will decide how well we seize this opportunity. As I write these lines, the link between ICT, freedom of expression, democratic empowerment and human development is hot news. And with these news come new questions and challenges.

When my book Cause commune: l’information entre bien commun et propriété was published, I did not invest much energy to get it translated in English, as the aim of the book was to reformulate American knowledge commons-thinking for European, emerging and developing country readers. But one day, I received an email from a Tunisian translator, Abdelouadoud El Omrani, who offered to produce a voluntary translation of the book in Arabic. It ended being published as a paper book by the Qatari National Centre for Culture, Heritage and the Arts, disseminated on the Internet under a Creative Commons license. Let’s be frank, I am not sure that many people read this book in Tunisia (where many likely readers read also French) or in Egypt. That’s partly because the distribution of books (and even ideas) is still very segmented in the Arabic world, and partly because potential readers had more urgent things to do. However, the publication brought me to visit a few Arabic-speaking countries, and to meet Internet users, knowledge sharing advocates, lawyers and writers from the Arab world. I witnessed their courage, their inventive use of poetry and fiction (when they explained it to me, as I don’t understand any Arabic), whether in face of authoritarian regimes for instance in Tunisia or Egypt or in face of the totalitarian imposition of religious prescriptions on individuals, for instance in Saudi Arabia1.

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Online Symposium: The Fragmentation of the U.S. Health Care System: Causes and Solutions, Next Week

I am pleased to announce that in a collaboration between the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, and Concurring Opinions, Frank Pasquale and I are organizing an online symposium on this blog (beginning on Monday) on the new book The Fragmentation of U.S. Health Care System: Causes and Solutions.  This book, which grew out of a conference the Petrie-Flom center hosted in 2008 was edited by Einer Elhauge and featurs a stellar list of contributors from law, economics, medicine, management, and other disciplines.

Here is a description of the symposium on the book and the list of participants:

Why is our health care system so fragmented in the care it gives patients? Why is there little coordination amongst the many doctors who treat individual patients, who often even lack access to a common set of medical records? Why is fragmentation a problem even within a single hospital, where errors or miscommunications often seem to result from poor coordination amongst the myriad of professionals treating any one individual patient? Why is health care fragmented both over time, so that too little is spent on preventive care, and across patients, so that resources are often misallocated to the patients who need it least? This book approaches these broad questions with a highly interdisciplinary approach, including chapters by the nation’s leading professors in law, medicine, economics, health, business, and political science.

Professor Elhauge and the contributors provide a multifaceted approach to these multi-dimensional problems. The divergent perspectives and approaches of the contributors provide the reader with an understanding of the intricacies of the system and proposed solutions. The articles address possible causes of fragmentation, including laws that mandate separate payments for each provider, restrict hospitals or others from controlling or rewarding the set of providers treating a patient to assure coordinated care, and provide affirmative disincentives for coordinating care by paying more for uncoordinated care that requires more services. The authors examine and propose reforms that could make our health care system less fragmented, more efficient, and more effective.

This symposium examines the themes and claims of the book, and in particular examines their relevance in the post health care reform world.

The participants will be

John Jacobi

Anup Malani

Abigail Moncrieff

Gwendolyn Roberts Majette

Ani Satz

Richard Saver

Elizabeth Weeks

Vickie J. Williams

Check in Monday for the launch of the symposium.


Rape, Consent, Deception, and the Blogosphere

[Preface: As anyone who has ever taught material relating to rape in class well knows, this is among the most sensitive of subjects to discuss. Add to this the way in which typed words lose the inflections and other subtleties of spoken language, and any post on rape threatens to come off as insensitive by accident. With that in mind I have tried to write this post in as sensitive a way as I can, but I also ask the reader to bear with me if their first instinct is to take something I have said the wrong way.  Instead please give it the most charitable of readings]

I have been fascinated on two levels by the recent blogospheric discussion of an Israeli Supreme Court case holding that an individual could be prosecuted for rape when he engaged in sex with a woman that was not the product of sex or coercion because he deceived her as to his religion/ethnicity (he was an Arab not a Jew) and his relationship intentions (to ‘hookup’ instead of looking for a serious relationship leading to marriage).

On the first level, I was intrigued as to why the case got so much interest (and the holding largely hostility) in the blogosphere. I think there are many reasons, but I want to put out two (related but distinct) provocative hypotheses for reaction from readers: (1) The case taps in to some long-suppressed doubts held by some reader on whether non-forced or non-coerced sex counts as rape. (2) The case disturbs because it implies that men can be raped during sex that is not forced or otherwise coerced, and while there are contexts in which many are prepared to believe in male rape (e.g., the prison context) they harbor gender-asymmetrical views of rape  outside those contexts.

One level down, into the actual holding of the case, one thing I find fascinating about this area of law (rape by deception) is that it requires constructing a concept of “essential facts” for which deception vitiates consent. To try and think about this, consider the following cases:

1. Ahmed deceives Beatrice about his religion and ethnicity claiming that he was an orthodox Jew when in fact he was a Muslim Arab. (The most recent Israeli case)

2. Jon convinces Daphne he is his identical twin, Jack, whom Daphne is dating, and Daphne sleeps with him inebriated after a long night of partying.  A real case along these lines in Canada had facts like these.

3. Dil deceives Fergus into believing Dil is a woman when they engage in anal sex.  In fact, Dil is actually a man (inspired by this film).

4. Bree is an M to F transgender person who now passes as a woman. She leads David to believe she was biologically born as a woman when they have sex.

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The Influence of Law Blogs (2006-Present)

I asked my wonderful research assistant, Robert Blumberg (TLS ’12), to update the Yospe/Best study on court citation of blogs and the Best 2006 study on law review citation of blogs.  He used as a dataset the 2009 legal educator blog census (which we are currently updating – see future posts for details), excluded some general sites which happen to have a law professor as rare contributor (the Huffington Post), and ran searches in WL’s JLR database.  Since 2006, under those conditions, law blogs have been cited in the journals 5460 5883 times.  Here are the top twenty sites since 2006.  Total citations are in (parenthesis), 2006 rank in [brackets]:

  1. FindLaw’s Writ (618)
  2. The Volokh Conspiracy (402) [2]
  3. SCOTUSBlog (305) [4]
  4. Balkinization (259) [3]
  5. Patently-O: Patent Law Blog (211) [8]
  6. Concurring Opinions (162)
  7. Sentencing Law and Policy (160) [1]
  8. JURIST – Paper Chase (130)
  9. PrawfsBlawg (122)
  10. The Becker-Posner Blog (104) [10]
  11. Conglomerate (102)
  12. White Collar Crime Prof Blog (89) [12]
  13. Election Law @ Mortiz (85)
  14. Legal Theory Blog (85) [5]
  15. The University of Chicago Law School Faculty Blog (76)
  16. Technology & Marketing Law Blog (74)
  17. Lessig Blog (73) [6]
  18. The Harvard Law School Forum on Corporate Goverance and Financial Regulation (72)
  19. Ideoblog (72)
  20. Election Law Blog (69)

Overall, the top 20 represented around 63% of all citations over the four year study period.  In 2006, the top 20 represented 76% of  852 citations.  In 2007, the top 20 represented 68% of 1095 citations.  In 2008, the top 20 represented 61% of 1388 citations.  In 2009, the top 20 represented 63% of 1441 citations.  Finally, in 2010 (so far) the top 20 has represented 65% of 562 citations.  It is difficult to make out any clear trend lines in the data.  Even taking into account the lag time of publication for 2009 and 2010 volumes, the rate of citations to law blogs is not increasing. There is a very mild trend toward diffusion in influence, although the top blogs still appear to drive the conversation, even as the number of professors blogging increased.  In the aggregate, the top few  blogs would each (if considered to be individual scholars) be worthies on Leiter’s citation lists.

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Welcome to the Blogosphere, Pareto Commons

I just wanted to highlight the new blog in town, Pareto Commons, which will be focusing on regulation. I’m not a huge fan of Pareto, but I’ll forgive the name when it comes to great content like this:

Lawrence Baxter on hedge fund tax breaks.
Kim Krawiec on “rogue traders.”
Lawrence Baxter on BP.

It looks like Jennifer S. Taub has also joined the blog. Taub is an invaluable guide to the financial crisis, and I really look forward to more posts like this. Krawiec’s coverage of the saga of Kerviel (both at Pareto Commons and the Faculty Lounge) will also be an informative read for anyone intrigued by books like Adam Haslett’s Union Atlantic.


Just Books

NYU Law School’s Brennan Center for Justice recently launched Just Books, a site that contains book reviews, author interviews, book excerpts, and roundtable conversations with writers and readers.

I think this is a great idea, as there is dwindling attention for books (especially academic books) in mainstream media publications. This is why at Concurring Opinions we launched the book review project.

Check out Just Books — the content so far looks great.


The Best Privacy Blog

For quite some time, I’ve been relying on the blog Pogo Was Right to keep up to date on privacy news.

A lot of people aren’t aware of this blog, so I thought I’d give a shout out to it.  Pogo Was Right is really excellent — the best privacy blog in my opinion.  If you’re interested in privacy issues, be sure to read it daily.

Also, when students ask where they can get ideas for papers about privacy law issues, I recommend it because it presents a great overview of the latest privacy issues as well as an extensive archive.

Welcome to the Blogosphere: Religious Left Law

I’m late to the party here, but I wanted to put in a plug this Good Friday for the bloggers at Religious Left Law, an all-star group which includes Bob Hockett, Patrick S. O’Donnell, Eduardo Penalver, Steve Shiffrin, and Elizabeth Sanders. Recent “keepers” on the blog include a Catholic endorsement of health reform by Steve Schneck, Patrick S. O’Donnell on justice, inequality, and health, and Steve Shiffrin on hell. The last post reminds me of a First Things essay on “Purgatory for Everyone,” which I find bracing reading this time of year. And Schneck’s essay should be of interest to anyone who liked my colleague Kathleen Boozang’s eloquent take on HCR here at Co-Op last year.


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

My dean, Fred Lawrence of George Washington University Law School, has started a new blog called 20th & H.  He writes:

20th and H was conceived as a place for me, as dean, to share with the GW Law community occasional thoughts about the Law School, legal education, and the legal profession, and to talk with you about some of the perspectives and insights I’ve gained through my work on campus and on the road.

Great idea!  Welcome to the blogosphere.

Fred has a recent post about laptops in the classroom:

For many of our students, the laptop has become almost an extension of their selves.  It’s how they take notes, research, write, and communicate; like it or not, those of us who were students in a pre-computer age simply can’t roll back the clock to a time when faculty members enjoyed the sight of rows of rapt faces and suffered at worse some inattentive doodling, note passing and an occasional nodding head.

Read more over at 20th & H.


Privacy and Tattletales

What happens when a commenter’s privacy expectations collide with a would-be tattletale? This recent news story raises that question, with some interesting facts.

The story began when a pseudonymous commenter stopped by the St. Louis Post-Dispatch site and left a vulgar comment in the reader commentary section. The site admin deleted the comment, and the commenter re-posted it. At this point, the site admin decided to do some basic sleuthing. He traced the commenter’s IP address to a local school, and then he alerted the school (which turned out to be the commenter’s employer) that the vulgar comment had originated from its IP address. The school’s sysadmin was able to trace it from there, and the commenter ultimately lost his job.

I don’t know that any legal privacy rights have been violated here. (Dan?) But this does seem like overreaching by the site admin. Penalties like comment deletion or even banning are within the norms of site administration. Ratting someone out to their boss? I’m not so sure. Read More