Editing the Blogosphere

pencil1.jpgThere’s an interesting conversation going on over at PrawfsBlawg about the norms regarding editing or deleting one’s blog posts. Ethan Leib wrote:

It is certainly true that one finds many bloggers who “update” their posts, informing readers of changes made to the original posts. But I suppose my view is that I am entitled to do whatever I want with my posts. One could argue, I guess, that I have duties to the blogosphere–whatever ethical community that is. Still, my tentative view is that if I want to edit or delete my posts with or without disclosure, that is my prerogative.

A good discussion has ensued in the comments to Ethan’s post and in subsequent posts by Dan Markel and Marcy Peek.

I generally don’t delete my posts or parts of my posts, but I think that it is very important that a norm doesn’t develop that deletion is taboo. True, it can be annoying for readers to find a post deleted or altered. But that’s a small price to pay for encouraging people to engage in a robust debate in the blogosphere. Sometimes we say things we regret, and a non-deletion norm might be more chilling of speech than an ok-to-delete-when-really-embarrassed norm.


Liability for unauthorized picture use?

I recently heard about a blog scandal involving a “fake” blog. Some bloggers got together and, for kicks, created a fake blog. They created fake identities for the blog, and wrote fake stories about fake lives. They originally intended this to be an experiment in participatory fiction; when the ruse was discovered, many readers responded angrily.

An interesting legal question arises out of these bloggers’ use of photos. In order to create identities, the participants went online and searched through google images until they found realistic looking photos for their characters. The photos they used were of unknown provenance, and (with one exception) it is probably all but impossible for most people to trace them to their real source. Each photo was matched with a bio to create the fictional characters.Biographical information (“favorite move: Star Wars”) matched with the photo creates the illusion of reality.

The site’s participants have stated that no permission was ever sought (or obtained) from the photos’ real owners. Do the real people whose photos were used to create these fictional identities have any legal cause of action against the bloggers who appropriated their images?

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Dennis Hastert’s Blog


Dennis Hastert, Speaker of the U.S. House of Representatives, has started a new blog, Speaker’s Journal. He writes:

The internet is changing the way we share information. My office has been talking a lot about some of the conversations going on in blogosphere. So I thought, hey, I should start one and give you unfiltered updates on Capitol Hill.

I’m not sure how much of a conversation the blog aims to generate if it doesn’t allow for comments. I also wonder whether a politician can truly provide “unfiltered” information. His first blog entry reads more like a politician’s speech than a blog post. It will be interesting to see how the blog develops and whether, in a few years, every politician will have one.


Miers Withdraws

The news comes as no surprise. There have been so many hints about it lately. Also, in a week where indictments of top Bush officials are likely to come down, the announcement makes particular stategic sense. The news media won’t have a long time to dwell on Miers.

Did the blogosphere play a role? A few days ago, I debated with Daniel Glover of the Beltway Blogroll about the influence of bloggers on the Miers appointment. I wrote:

In essence, a set of virtual confirmation hearings are being held in cyberspace, and the fate of the nomination may well be decided before the actual hearings in the Senate even begin.

The cyberhearings on Miers are now over . . . which is good because I was growing weary — very weary — of reading post after post about Miers. Although I’m writing one now . . .


Unusual Law School Classes: Quiz Answer Key

lawgavel.jpgIf you attempted to take the quiz I set out in my post earlier this week about unusual law school classes, I just posted the answer key in the comments to the post. Please continue to submit comments about your unusual law school courses and course descriptions. I may collect some of my favorite entries from the comments and emails I received and post them sometime soon.


A Casebook That Gets Used

hart.gifUnlike my law professor co-bloggers, I don’t have piles of free case books littering my office. (At present, I do have lots of insurance documents and stacks of filings in pharmaceutical cases.) In legal practice I find that there is only one of my case books from law school that I still regularly consult: Hart & Wechsler’s The Federal Courts and the Federal System. There are a number of reasons for this.

First, I am mainly a litigator, which means that I spend a lot of time fussing about procedure and jurisdiction. Indeed, a great deal of my time of late has consisted of finding esoteric ways of shuttling cases from one court to another court. Of course, from time to time when all else fails we are forced to grapple with the substance of the claims in the cases. However, as a law-geek I am happy to spend most of my time on the part of the case the occurs before and up to the 12(b)(6) motion and then after final judgment on appeal. Facts are such troublesome things and they require a huge amount of scutt work to develop. Procedural and jurisdictional fussier that I am, Hart& Wechsler comes in handy.

Second, the law of federal courts is pretty complicated and if you poke around long enough you will find that it is riddled with odd little doctrines and exceptions. Hart & Wechsler is filled with case citations followed by questions. The questions are actually useful in practice. On one or two occasions, I have found that trolling through a section of Hart & Wechsler, I come across a question and think “If the answer to that question is ‘yes,’ then my client wins.” And hence a legal theory is born.

Third, Hart & Wechsler very self-consciously contains more material that is pedagogically useful. I had federal courts from Dan Meltzer, who is one of the current authors, and he made no attempt to cover everything that the text book covered. He would have been insane to do so. (Which doesn’t mean that there aren’t other insane teachers at HLS.) Obviously, Hart & Wechsler isn’t Wright & Miller, but it does provide quasi-comprehensive coverage. More importantly, it makes a serious attempt to reference the relevant secondary literature in the law reviews. Because federal courts is an area where there is still a fair amount of doctrinal scholarship, the referenced law review articles are actually useful from time to time.

So for law professors interested in writing case books with a bit of shelf life in them, here is my advice. First, pick a topic that comes up ubiquitously in litigation. Second, pick a really complicated body of law where there are lots of ambiguities. High light as many of these ambiguities as possible so that future litigators can troll through them looking for a stray edge of the law to worry. Third, be big. Don’t limit yourself to what would be useful to students in class. Make your case book into a portal for the field. Cover all of the epicycles in the doctrine and provide citations to lots of cases and relevant law review literature. Also, pick a topic where the law review literature still contains serious doctrinal writing.

Do these things and your case book to can earn a hallowed spot on my desk next to the insurance documents.


Death of the Casebook?


Predictions about the death of the book have so far been premature and it’s not hard to see why. Books are a very nice technology. Portable, durable, easy-to-read, stable – people like books, and they aren’t going away any time soon.

But what about casebooks? They’re heavy, inconvenient, not terribly portable – and no one really has warm fuzzy feelings about curling up with the latest edition of Gunther. (Co-Blogger Nate may be an exception). Can we safely make a prediction about the death (or at least transformation) of the casebook?

I can see a number of advantages to a purely electronic casebook: (1) weight, or lack thereof (bits are light); (2) ease of updating (no more supplements); (3) customizability (no need to buy all those extra chapters); (4) ability for students to cut and paste into outlines; (5) multimedia, etc.

I can also see several disadvantages: (1) lack of access to computers; (2) dislike of reading material on a computer screen; (3) lack of portability. But it seems to me that two of these disadvantages are becoming less significant as (1) computers become ubiquitous in law school; and (2) people seem increasingly comfortable reading material off of computer screens.

So, is anyone ready to predict the death of the casebook? Are we stuck with casebooks? Or is there some interesting hybrid we should be looking forward to? (Note this is not a purely disinterested question, as I’m currently working on a casebook).


Short movie remakes

I just noticed the new Empire Strikes Back animated gif created by Folds Five. (via Boing Boing). empire.gif This is the latest in a series of modified movies that seem to be proliferating on the internet, ranging from the “movies in 30 seconds, as re-enacted by bunnies” of Angry Alien to the recent, hilarious redone trailer of “Shining” which recasts the classic horror movie as a Cameron Crowe style family comedy.

Many of these make me laugh. I’m not so sure about their legality, though. Parody? Maybe. (Are they clearly parodies?) Fair use? Again, maybe. But I wouldn’t really want to bet the farm on either of those. What do our IP experts think?


Will Christine Hurt recruiting at Jenkens & Gilchrist?

The American Lawyer has picked up on Christine’s earlier post at Conglomerate, criticizing the cheesy recruiting video put together by J&G.

As AmLawyer notes, the video was put together in “fun.” Nevertheless, Scott Moss and other commenters have pointed out the real issues that could come out of this. Is the video introduceable as evidence in a future discrimination lawsuit? Law firms are supposed to be smarter than this. At a big firm, someone is (or should be) vetting everything that goes out the door.

And law firms often do have deep-seated underlying problems with gender. Speak off the record with attorneys at many big firms, and you’re likely to hear about all sorts of potential concerns: alcohol-fueled team visits to strip clubs; female secretaries paid to keep quiet about harrassment; questionable relations between male associates and female paralegals; and so on.

This isn’t to suggest that J&G has any such problems itself (I have no knowledge whether it does or does not). And it’s not to suggest that the video is actionable itself.

But if J&G is sued for other alleged violations, the video potentially takes on new significance. A smart plaintiffs’ attorney will try to connect the video to any other problems. The video could make it harder for the firm to disavow the acts of any particular associate or partner. I’m no employment law expert, but I know that’s a case I wouldn’t want to have to defend. All because someone tried to be funny.

As Christine correctly notes, “it’s always funny until someone reads it back to you at a deposition.”