Another Note on the Influence of Bloggers

In response to Dan’s post on the influence of bloggers, Oren Kerr and Todd Zywicki chime in here and here. The discussion reminds me of a story that I recently heard. Each year, the Republicans in Congress have a retreat to the Greenbrier resort in West Virginia. This year one of the major themes at the retreat was the role of blogs in the 2004 election. In particular, most GOP Senators think that Daschle was largely brought down by local bloggers who played watch dog to the local, pro-Daschle press by highlighting positions taken in Washington that were to the left of his constituents. I don’t know that this blip has transformed itself into any deep and abiding interest (and hence influence) on the Hill. Still, the message at Greenbrier seems to have been that politicians ignore the blogosphere at their peril.


Google & Grokster


Being new to the blogosphere, I missed out on the initial round of comments on the pending litigation between the Authors Guild and Google over Google Print, Google’s effort to create a searchable database of print books. My sympathies tend to be with Google, as I have yet to see a strong, non-circular argument that authors would be economically harmed by Google Print (at least as I have heard it described).

But even if you believe, as do I, that Google’s activities are or should be fair use, there’s an interesting separate question re: what efforts, if any, Google should be obligated to take to keep the digitized books secure from third parties. For example, what if third parties could use Google Print to easily reconstruct full digital versions of print books (e.g. by sending a series of overlapping queries to Google Print and reassembling the search results)?

Presumably, Google could implement all sorts of technical measures to make this kind of activity more difficult (and indeed, there is some indication that it has implemented them). But what if it didn’t implement any of these measures? Should it be obligated to?

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Are Bloggers Having an Influence Inside the Beltway?

blogger2.jpgFrom the National Journal’s Beltway Blogroll Blog, Daniel Glover takes a skeptical look at the influence of blogs:

This year, bloggers are the figurative freshmen of larger Washington. They have won enough respect in certain pockets of America to claim occasional seats at the policymaking table — but they are definitely back seats.

That reality has been abundantly evident the past couple of weeks, as conservative bloggers have been showered with ever more attention from the Republican powers that be — yet have nothing substantive to show for it.

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eBay and Unfortunate Wardrobe Choices

Thanks to Dan, Kaimi & Nate for inviting me to guest blog this week. I feel a bit like I’ve been tossed the keys to a fancy sports car (one with lots of cool gadgets!), and so I alternate between a desire to floor it and a fear of driving into a telephone pole.

ebay.gif On that note, let me start with a weighty post on how eBay is making the world more efficient by freeing up articles of clothing that would otherwise remain consigned to the backs of closets everywhere. See, for example, the following auction for “DKNY Men’s Leather Pants I Unfortunately Own“:

You are bidding on a mistake.

We all make mistakes. We date the wrong people for too long. We chew gum with our mouths open. We say inappropriate things in front of grandma.

And we buy leather pants.

Click here to see the rest of the auction text.


FBI Intelligence Violations

fbi2a.jpgThe Washington Post is reporting on documents obtained by Marcia Hofmann at the Electronic Privacy Information Center that demonstrate a number of FBI intelligence surveillance violations:

The FBI has conducted clandestine surveillance on some U.S. residents for as long as 18 months at a time without proper paperwork or oversight, according to previously classified documents to be released today.

Records turned over as part of a Freedom of Information Act lawsuit also indicate that the FBI has investigated hundreds of potential violations related to its use of secret surveillance operations, which have been stepped up dramatically since the Sept. 11, 2001, attacks but are largely hidden from public view.

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Introducing Guest Blogger Joseph Liu

liu.jpgFor the next few weeks, Professor Joseph Liu from Boston College Law School will be visiting with us. His interests include intellectual property, copyright, trademark, property, Internet law, and software law.

Joe graduated from Columbia Law School, where he was the Editor-in-Chief of the Columbia Law Review. He subsequently received an LLM from Harvard Law School. He clerked for The Honorable Levin H. Campbell on the U.S. Court of Appeals for the 1st Circuit, practiced at Foley, Hoag & Eliot in Boston, Massachusetts, and then began teaching at Boston College Law School in 2001.

A few of his recent articles include:


Copyright, 83 N.C. L. Rev. 87 (2004),

The DMCA and

the Regulation of Scientific Research, 17 Berkeley Tech. L.J. 501 (2003),


Law’s Theory of the Consumer, 44 B.C. L. Rev. 397 (2003),  and


and Time: A Proposal, 101 Mich. L. Rev. 409 (2002).

We’re delighted to have Joe visit with us.


Not Being Part of the Shared National Experience

television.jpgI don’t have a television. Or to be more precise, I do have a television (a DVD/TV/Video combination no less) but is not connected to anything. Hence, the only TV images that I see are movies, DVDs, etc. As a result, I get all of my news from either print or internet sources. (And BTW, I hate watching TV on the net, so I never do it.) Now I could wax very Neil Postman, and go on and on about the superiority of the written word. My decent into TV-lessness, however, was — as befits a student of the common law — considerably more ad hoc. When my wife and I moved from Boston to Little Rock for my clerkship, we never got around to having the cable hooked up. One evening a month or so after we had arrived there, we were talking and realized that (a) we didn’t have TV; and (b) we liked it. We found that we had more time, talked more to each other, and could limit and control our son’s exposure to TV. So we simply formalized our inertia and disorganization into a decision. On the whole, it has worked rather nicely. Still, at times I feel like I don’t live in America.

A case in point is Miers. I have read a number of stories about her, and I am not impressed. Her nomination strikes me as a waste. Any Supreme Court opening is a chance to pick someone whose opinions will go into the Big Books, and given the fact that as a lawyer I will spent much of the rest of my life slogging through any justice’s work product, all things being equal I see no reason to be excited about twenty years with Harriet. However, a number of my friends have commented to me on her poor verbal performance, or how awkward or uncomfortable she looks, or the sorry state of her hair, or so on. These are images that I just don’t see. I am blind to them. I don’t think that this makes me a better news consumer than my friends (almost all of whom are better informed than me). Indeed, no doubt Miers’s gait and appearance provide us with important information about her. I clerked for a man that I regard as a great judge, and there was definitely something about his shuffle and haircut that bespoke jurisprudential depth. I noticed that same loss of shared experience when Katrina hit. I read about the extent of the devastation and saw some photographs, but I didn’t have the immediacy of the television that my friends talked about.

Not experiencing shared television images is a good way of realizing how much of our shared national experience takes the form of such images. It creates this odd dynamic in which at times I feel as though I am in America but not of it. (Or perhaps I am of it, but not fully in it.) This may explain why I consistently find that The Economist provides the news coverage of America that resonates best with me. Both of us are — for different reasons — semi-detached observers of the national scene.


What Should Democrats Do Regarding Harriet Miers?

miers1a.jpgPaul Horwitz at PrawfsBlawg raises the difficult strategic dilemma for Democrats on the Harriet Miers nomination:

Therein lies the Democrats’ dilemma — actually, a double dilemma. 1) They do not want to oppose Miers loudly if they think her replacement might be a Luttig or a Brown, both because those judges are a more potent threat to their desired outcomes and because such nominations would be a political and fundraising prize for conservatives. 2) They also may not want to be on record as viewing mediocrity as a disqualification for the Court, since it constrains their own future choices.

Put slightly differently, the argument for Democrats in favor of Miers is this: Although Miers is relatively unknown, there are some indications that she might be moderate, even liberal, on key issues. An alternative replacement for Miers might well be much more firmly committed to conservative positions and be a more reliable conservative vote. If Miers turns out to be a consistent conservative vote, there are many indications that she won’t be a great superstar on the Supreme Court, and hence, she won’t be as effective as a replacement who might very well be a superstar. Furthermore, if Miers gets appointed, it will perpetuate great tensions amongst the Republicans.

Should this argument incline Democrats toward supporting Miers?

The liberal and political strategist in me is enticed by this argument. On the other hand, the intellectual and academic in me bristles at putting somebody on the Supreme Court who, by all indications thus far, does not seem to have the qualifications to be a great Supreme Court jurist. Ideally, I want a Supreme Court filled with brilliant distinguished jurists.

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Spam Poetry

quillpen3.bmpI’m continually getting spam from a spammer who uses randomly generated phrases for the email subject lines. To some ears, it might be meaningless drivel, but to other ears, the spam is really an ongoing poem, delivered one line at a time. These are the actual subject lines:

To write in magenta colossal

you be but blimp measurement

Go play darts magnesium

Re: esophagi, do you love me or not?

I find my mispronounce british

so live go restore

On learn to pallet

To make do periods contortion

Re: her travel no economics

Wanna get a drink? pantomimic theoretic

doctrinaire rosary

Fwd: radish demented

Freedom for everyone

On look on precious hepatitis

Re: stress, This is the time of your life

Wanna get a drink? cryptogropher indorse

Go explain be school roughage

do reply to rap

And who thought spammers couldn’t be poets?


Some Wine With Your Law? A Law School Course in Wine

wine4.jpgBoalt Hall (Berkeley Law School) is offering a course about wine law, accompanied by extensive wine tasting:

Most students at Boalt Hall School of Law learn by reading class materials and listening to lectures.

But in Room 110, the lessons are sipped.

Glasses of pinot noir are part of Boalt Hall’s first ever wine law class, where students are learning the legal complexities of the wine industry. Lessons include tasting wines to examine the significance and differences between wine appellations, which have become a thorny legal issue.

If any student thought a class involving wine tasting would be a cakewalk, they were disappointed.

“It’s substantive. It’s hard,” said Mano Sheik, a third-year Boalt Hall law student. “We’re not just drinking wine.”

And that’s the point, according to the class’ instructor, Richard Mendelson. The Napa attorney, who has both worked in and concentrated his practice on the wine industry, said the law surrounding it is rife with issues involving the 21st Amendment, intellectual property, land use planning and international trade.

Perhaps Professor Bainbridge will soon be offering such a course at UCLA.