Going Commercial

fortune500.jpgWe are considering going commercial here at Concurring Opinions. In other words, we’re thinking about having advertisements.

Here are some of the issues we’re facing:

1. When we start using ads, we become a commercial blog. This might give rise to greater risks of defamation and copyright lawsuits. Will we become a larger target? While defamation is not a big concern considering what we post about, copyright could be. Indeed, bloggers often quote liberally and use images from around the Internet. As guest blogger Joe Liu aptly noted: “Fair use is notoriously fuzzy.” The norms of the blogosphere thus far seem to be informal — if people have a problem with a blogger quoting too liberally or with the use of an image, they email the blogger to take it down. When a blog goes commercial, however, will this lead to the use of lawsuits instead?

2. Right now, we’re just a bunch of folks blogging together without much of a formal agreement. If we go commercial, should we form a more formal arrangement? We might form a partnership, LLC, or some other type of corporation. If we do create a more formal arrangement, what’s the best type?

3. Are there other prudential considerations that we need to think about? Starting a blog is so easy and informal, but when it becomes a for-profit enterprise, things could potentially change. Or maybe not. We just don’t know.

These are some of the considerations we’re thinking about. If you have any thoughts on the issue, we’d appreciate your opinion.

UPDATE: Mike at Crime and Federalism has some interesting thoughts about the issue here and here.


Shifting Around on the Supreme Court

supremecourt8.jpgIn an interesting article in the Washington Post, Lee Epstein (law and political science, Washington University) and Jeffrey Segal (political science, Stony Brook) write that a judge’s past judicial record is not necessarily a good indication of how they’ll decide cases as a Supreme Court justice. They observe:

In the case of Souter, initial judgments about how he might vote were downright wrong. The clear expectation, based largely on his lower court record, was that Souter would be a rather consistent conservative voter — even more to the right than Reagan appointees Kennedy and O’Connor, at the time of their nominations. Souter, of course, is a rather consistent voter — on the court’s liberal wing.

In retrospect, we probably should not be surprised by this turn of events. Lower court records can actually provide disinformation about a nominee’s true preferences. Judges on lower courts, after all, are bound by Supreme Court precedent, and that constraint may explain why Souter — thought to be moderately conservative as a state and federal appellate court judge — emerged as liberal once on the high court. . . . While Supreme Court nominees “respect” precedent, as they unfailingly tell the Senate Judiciary Committee, once elevated they are not compelled to follow it. Freed from that constraint, the “real” Souter came into view.

I previously blogged here about how a judge might change when no longer strictly bound by Supreme Court precedent.

Epstein and Segal also explain that focusing on a nominee’s views on the burning issues of the day may not help us in understanding where the nominee will come out on the issues of tomorrow:

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A whole lot has changed in the last fifty-six years


I recently had the pleasure of introducing Paul Jones to speak to the Black Law Student Association at the University of Alabama. Dr. Jones is one of our nation’s leading collectors of African American art. He was born in the 1920s in Bessemer (a town near Birmingham) and grew up there. He shared a dream of generations of boys in this state–to play for the University of Alabama’s Crimson Tide. But he could not realize that dream. Instead, he played for Alabama State. Then, in 1949, as a student at Howard University, he applied to the University of Alabama’s law school. Again, he was a generation too early. He was told that while the administrators here were aware that the United States Supreme Court might mandate that the University admit students like him, he should not pursue a lawsuit:

While this may be gratuitous, I am adding that we at the University of Alabama are convinced that relationships between the races, in this section of the country at least, are not likely to be improved by pressure on behalf of members of the colored race in an effort to gain admission to institutions maintained by the State for members of the white race. On the contrary, we feel that inter-racial relationships would suffer if there is insistence that the issue be joined at this time. The better elements of both races deplore anything that tends to retard or jeopardize the development of better relationships between the races. For these reasons, therefore, we hope that you can persuade yourself not to press further your application for admission here.

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Cornell Law School’s Legal Information Institute recently launched WEX, “a collaboratively built, freely available legal dictionary and encyclopedia.” Sounds peachy. What is it?

According to an email which has been circulating from the Tom Bruce, Director of the LII [who kindly gave me permission to quote]:

At the risk of sounding a little more diffident than perhaps I should, I’ll say that we’ve just put something sorta new and very interesting on the LII site. It’s called WEX, and we are hoping that it will grow into a very ambitious and interesting project indeed — interesting and ambitious enough that we should be trumpeting it from the housetops, I suppose, but for the moment we’re confining ourselves to low-key conversations with our friends and supporters. Hence this note.

WEX . . . will be the first collaboratively edited legal encyclopedia and dictionary on the web, aimed specifically at law novices.

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Imaginary girlfriend?"> 8

Imaginary girlfriend?">What’s worse than an Imaginary girlfriend?

How about a scam date who’s creates the illusion that your subscribtion to paid dating sites is succeeding?

A lawsuit was filed earlier this month in U.S. District Court in Los Angeles by plaintiff Matthew Evans, who contends he went out with a woman he met through the site who turned out to be nothing more than “date bait” working for the company.

The relationship went nowhere, according to his suit. Evans says Match set up the date for him because it wanted to keep him from pulling the plug on his subscription and was hoping he’d tell other potential members about the attractive woman he met through the service.

On the one hand, this business practice seems clearly wrong. On the other hand, it raises the question of just what these paid subscribers are entitled to. There’s no guarantee that they’ll meet someone they like, fall in love, and live happily ever after, is there? Are they entitled to genuine “market reactions” to their datability — whatever those reactions might be?

Follow up questions include: Would a single “real” bad date really be better than two or three pleasant enough “fake” dates? Is this really so much worse than “real” dating using a paid “wingman”? And is Match.com’s sham date worse than going on a “real” date because one’s parents or friends pester one to do so, rather than out of actual romantic interest in the person dated? The ethical boundaries here seem to be not so clearly defined.


Froomkin’s U.S. Constitution Quiz

constitution1.jpgOver at Discourse.net, Michael Froomkin (law, Miami) has an interesting quiz about the U.S. Constitution. Sample questions:

Could Congress constitutionally abolish the entire armed forces and the Pentagon, leaving the nation defenseless?

May Congress pass secret laws? If so, may (must?) the courts enforce them?

Is there anything in the first seven articles of the Constitution that prevents the federal government from awarding you a $1 million personal bonus?

What is the minimum number of justices constitutionally required to form a Supreme Court?

If Congress sets out to minimize the President’s powers, can it abolish his entire staff? Evict him from the White House?

Many more questions over at Discourse.net.


Does this insight apply to law professors as well?


Some years ago (I’m guessing sometime around 1997 from internal references, as historians would say), I saw in a newspaper a quote attributred to “Veteran horrormeister and Scream 2 director Wes Craven”:

After you stop moaning about being stereotyped as a horror guy, you can say, “I’m employed doing interesting movies that can be called, in some sense, auteur work. Nobody’s telling me what to do, I have final cut and there’s virtually no limitation except my imagination, and I have to stay within a certain subject matter. But you can put as much comedy as you want in the movie, as much romance or philosophy; anything, as long as you scare the bejesus out of people six or 10 times.”

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No bull

You may want to call your attorney all sorts of names. But whatever you do, don’t call him a pit bull. That kind of characterization would “demean all lawyers and thereby harm both the legal profession and the public’s trust and confidence in our system of justice.” Thus writes the Florida Supreme Court.

Now had Harriet Miers been confirmed as a Justice, surely she would have intervened and set those Floridians straight. She is, after all, a “pit bull in size six shoes” herself. So said her hero and boss, George W. Bush.

Who, come to think of it, owes his job to the Florida Supreme Court.

Which just said that you can’t refer to lawyers as pit bulls.


Is Anonymous Blogging Possible?

anonymity2.jpgHoward Bashman at How Appealing muses whether anonymous blogging is really possible:

These days, however, most users of the internet understand that every bit of information communicated electronically leaves electronic fingerprints that can be used to trace the source of the information, even if the source hoped to remain anonymous. To be sure, there are ways to anonymize emails and other forms of communication, but they tend to be complicated to use and difficult to figure out. . . .

I doubt whether anonymous blogging is possible. It surely isn’t possible if the blogger conducts email correspondence with others and fails to mask his or her internet protocol address. Plus, even the act of logging on to a blogging service provider, such as TypePad or blogger, leaves electronic fingerprints, and I’d have to assume that “UTR” had a TypePad subscription, enabling someone to subpoena the blog owner’s identity and/or payment information. So, to you anonymous bloggers out there, have fun, but don’t fool yourselves into thinking that simply by not providing your identity you are doing an effective job of remaining hidden.

I generally agree that it is very difficult to blog anonymously, but it is certainly possible if a person is careful. You can find many step by step guide to staying anonymous online so it may be worth reading those if you’re serious about staying anon.

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