"What the academy is doing, as far as I can tell... is largely of no use or interest to people who actually practice law."

Said Chief Justice John Roberts, in a quote that sprang to mind when I read this from Gordon Smith (via Instapundit):

[Some old lawprof once said:] "To become a great law professor, one must write a casebook, a treatise, and a Restatement ... Seavey never wrote a treatise."

... It is impossible to imagine anyone giving Scott's advice to a young professor today. The sort of doctrinal synthesis that lies at the heart of casebooks, treatises, and Restatements is not highly valued among today's law professors, even though it has real-world value.

What is the measure of a great law professor today? The highest achievement of a law professor today is creating a new concept or theory that is used widely by other academics in the field....

Lawprofs injecting other lawprofs with theories. It sounds unsanitary, but it's a closed system, so what could go wrong? It's not as if a law professor is going to break out and grasp massive power in the actual real world. Imagine a lawprof as President! It's absurd!

Aw, come on. Seriously. Barack Obama wasn't a law professor law professor. Did he ever try to create a new concept or theory for other lawprofs to use in the sickly circulatory system of academia? Absolutely not. He was always organizing and operating in the political world.

If this inspired you to go to law school...

... would you admit it now? Would you smile inwardly at your long-lost naivete?

Why Gordon Smith hates reading Supreme Court opinions.

"The first sentence of Free Enterprise Fund v. Public Company Accounting Oversight Board reads: 'Our Constitution divided the "powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial." INS v. Chadha , 462 U. S. 919, 951 (1983).' We needed a secondary source citation for that proposition? Or maybe the Chief Justice used the quotation for the original way in which Chadha framed the idea?"

I feel your pain. But as a lawprof who teaches Chadha every year, I've got to observe that the idea that there are 3 defined categories was controversial and fought over in that case. Read Justice White's dissenting opinion:

[T]he wisdom of the Framers was to anticipate that the Nation would grow and new problems of governance would require different solutions. Accordingly, our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles. This was the spirit in which Justice Jackson penned his influential concurrence in the Steel Seizure Case:

"The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government."

Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S. 635 (1952).

Burger had to protest that he was not relying on "empty formalities." I'll bet most law professors teaching separation of powers present Jackson in a much better light than Burger.

The idea that are "three defined categories" of power is not too obvious to require support from case law. The case law itself shows that.

"The case against 'harsh interrogation techniques' is easy if they don't work."

Corporate lawprof Gordon Smith applies the same observation to arguments about corporate social responsibility:

Naive commentators often attempt to win points by portraying corporate managers as unenlightened and backward. If they would just act responsibly, the argument often goes, the world would be a better place and corporations would be more profitable to boot!...

The tough issue isn't whether managers should be "responsible" when responsibility pays, but whether managers should forfeit profits to pursue a "responsible" path. Tellingly, corporate law doesn't have much to say on that issue. Legislatures ban many forms of irresponsible behavior, but the marginal cases -- the morally complex cases -- are left to managerial discretion.

Of course, it's great for your argument if you can show that what you think is the moral path is also something that is better for all sorts of selfish reasons (or even if you can just get people to believe that it is). But idealists should want to accept the challenge to show why their position should be taken even if selfish interests point in the other direction. It makes your moral argument stronger if you can get people to believe it even when it requires sacrifice. On the other hand, moralists should think about the consequences of their hardline positions. It's not all about making the strongest argument for what you already believe. You might be wrong, and your imperviousness to real-world effects can be dangerous.

(The terrorists themselves seem to have a hardline moral position that is impervious to real-world effects.)

"Substitute any intransitive verb for 'blog,' and you have some pretty good life advice."

Says Gordon Smith, quoting me... and setting up what I think is a nice challenge to think of some intransitive verbs to create advice that Gordon might not rubber-stamp.

Have we ever had a fully bearded VP?

Gordon Smith does the research.

This blog is 4 years old today.

And this is the 10,792nd post. I have posted every single day these past 4 years, averaging over 7 posts a day. It started like this, on January 14, 2004:

This blog is called Marginalia, because I'm writing from Madison, Wisconsin, and Marginalia is a fictionalized name for Madison that I thought up a long time ago when I seriously believed I would write a fictionalized account of my life in Madison, Wisconsin. There is nothing terribly marginal about Madison, really, but I do like writing in the margins of books, something I once caused a librarian to gasp by saying. Writing in a blog is both less and more permanent than writing in the margin of a book.

But the blog didn't stay named Marginalia. I changed the name to Althouse on day 2. Despite the name change, I really did see myself as writing marginalia that maybe somebody would run across one day on some dusty back page of the internet.

I remember when I started blogging, my across the hall colleague Gordon Smith told me his blog had about 60 readers a day, and I wondered how one could accumulate 60 readers. How I would love to have 60 readers! He told me of another law blogger who had 400 readers, and that seemed amazing. How do you get even 1 person to show up in the first place and read, and then how would you get them to come back and read every day?

I didn't know, but I loved the writing and found it truly intrinsically rewarding from that first post. Just the idea that people — anywhere — could read it was thrilling. To be here, now, 4 years later, still writing — with readers — is an immense joy.

Thanks to everyone for stopping by.

"Do not create a legal writing program, moot court competitions, student-edited law reviews, clinics, or any other co-curricular offerings."

Gordon Smith offers some surprising advice for Erwin Chemerinsky on how to structure the new law school at UC Irvine. The idea is to stress classroom teaching:

Allowing practicing lawyers to drive educational reforms is what got us into this mess. If you feel the need to teach "skills," develop an externship program, which will expose students to real legal problems and forge relationships between your school and potential employers.

That would shake things up. It steps on a lot of toes. But UC Irvine doesn't have toes yet.

"We have to have the stomach to finish the task."

Dick Cheney faces down Wolf Blitzer:

BLITZER: Here's what Jim Webb, Senator from Virginia, said in his Democratic response last night. He said:

"The President took us into the war recklessly. We are now, as a nation, held hostage to the predictable and predicted disarray that has followed."

And it's not just Jim Webb, it's some of your good Republican friends in the Senate and the House, are now seriously questioning your credibility because of the blunders, of the failures. All right, Gordon Smith --

CHENEY: Wolf, Wolf, I simply don't accept the premise of your question. I just think it's hogwash. Remember --

BLITZER: What, that there were no blunders? The President himself says there were blunders --

CHENEY: Remember, remember me -- remember with me what happened in Afghanistan. The United States was actively involved in Afghanistan in the '80s supporting the effort against the Soviets. The Mujahideen prevailed, everybody walked away. And in Afghanistan, within relatively short order, the Taliban came to power, they created a safe haven for al Qaeda, training camps were established where some 20,000 terrorists trained in the late '90s. And out of that, out of Afghanistan, because we walked away and ignored it, we had the attack on the USS Cole, the attack on the embassies in East Africa, and 9/11, where the people trained and planned in Afghanistan for that attack and killed 3,000 Americans. That is what happens when we walk away from a situation like that in the Middle East.

Now you might have been able to do that before 9/11. But after 9/11, we learned that we have a vested interest in what happens on the ground in the Middle East. Now, if you are going to walk away from Iraq today and say, well, gee, it's too tough, we can't complete the task, we just are going to quit, you'll create exactly that same kind of situation again.

Now, the critics have not suggested a policy. They haven't put anything in place. All they want to do, all they've recommended is to redeploy or to withdraw our forces. The fact is, we can complete the task in Iraq. We're going to do it. We've got Petraeus -- General Petraeus taking over. It is a good strategy. It will work. But we have to have the stomach to finish the task.

BLITZER: What if the Senate passes a resolution saying, this is not a good idea. Will that stop you?

CHENEY: It won't stop us, and it would be, I think detrimental from the standpoint of the troops, as General Petraeus said yesterday. He was asked by Joe Lieberman, among others, in his testimony, about this notion that somehow the Senate could vote overwhelmingly for him, send him on his new assignment, and then pass a resolution at the same time and say, but we don't agree with the mission you've been given.

BLITZER: So you're moving forward no matter what the consequences?

CHENEY: We are moving forward. We are moving forward. The Congress has control over the purse strings. They have the right, obviously, if they want, to cut off funding. But in terms of this effort, the President has made his decision. We've consulted extensively with them. We'll continue to consult with the Congress. But the fact of the matter is, we need to get the job done. I think General Petraeus can do it. I think our troops can do it. And I think it's far too soon for the talking heads on television to conclude that it's impossible to do, it's not going to work, it can't possibly succeed.

"The model of an eclectic, general interest blog is a less viable one."

Says Stephen Bainbridge who's cocooning into business law.

Perhaps more importantly, I'm just getting tired of the punditry style of blogging. I'm not enjoying writing that style as much; for that matter, I'm not enjoying reading other punditry blogs very much these days.

Gordon Smith approves:

I can understand Steve's decision. General interest blogging is hard work. Conglomerate has become more tightly focused on business and law over time, partly because we have expanded the number of bloggers and our common interest is business law. But I suspect that another explanation for this development is that those of us who blog here find that blogging about work is easier than blogging about all manner of other subjects.

And Steven Taylor says:

I wonder how much of it is a response to the general malaise that is settling over politics these days and how much has something to do with blogging burnout and the intermixture between academics and blogging and how such a person wishes to present themselves to the general public....

Of course, I disagree, guys. But there are different paths in blogging as in life. You go your way and I'll go mine.

ADDED: There's a matter of perspective here. Should you ask how can I have less work or how can I have more fun? If you'd approached your blogging as a pleasure all along, having more of it would seem good.

IN THE EMAIL: Stephen Bainbridge objects to that last sentence (about pleasure):

So you never burnt out on a hobby? Pardon me for expressing it in economic terms, but the basic point was that blogging in a partcular style had stopped being rewarding. I don't know why that would invite snark.

MORE: I should add that my post is not offhanded snark. It's a longstanding theme here and is, if fact, what I wrote my paper about for the Bloggership conference last spring. The theme of most of the other papers was that lawprof bloggers should find ways to make blogging more ostensibly like legal scholarship, and I passionately took the contrary position.

What the band did.

Stephen Bainbridge asked what the UW Marching Band did to rile the administration here. Gordon Smith answers. It really is quite bad, not the kind of vigorous but offensive speech we've been fretting about lately in the context of the "Think. Respect." program.

Who is clueless enough to think Stephen Colbert is a conservative?

At yesterday's Law School graduation ceremony, Gordon Smith got a chance to talk to Rep. Tammy Baldwin about -- well, what would you talk to her about? -- Stephen Colbert:

It turns out that she's a fan of Stephen Colbert, too. She asked whether I thought he was, at heart, a liberal or conservative. (Apparently, this is a matter of dispute among members of Congress.) I told her that I assumed he was a liberal, but she said that the congressman who claims to know Colbert best is convinced that he is a conservative.

Yeesh, are our representatives that dumb?

Here's a dialogue between Colbert and Terry Gross from the April 8, 2005 episode of "Fresh Air":

GROSS: Have you become much more political since doing "The Daily Show?"

Mr. COLBERT: Yes. I started off at the Second City in Chicago, which is ostensibly--it's an improvisational theater that ostensibly does social and political satire, but when I was there we generally didn't. And I made a conscious effort then not to do political stuff when I first started out, because I found so much political humor false, stuff that just told the audience what they thought already about a political situation.

I mean, the example is people making Ted Kennedy drinking jokes, which didn't seem to be informative or satirical. They just seemed mean-spirited and just told the audience what they thought already. And the people that I worked with--Paul Dinello and Amy Sedaris for the most part--we had a little pact that we wouldn't talk about politics, we wouldn't talk about pop culture and we wouldn't make references to real places or people. We would just do scenes of--between--relationship scenes.

And then when I got to "The Daily Show," they asked me to have a political opinion--or rather Jon did. When Craig was there, it wasn't so political. Jon asked me to have a political opinion, and it turned out that I had one, but I didn't realize quite how liberal I was until I was asked to make passionate comedic choices as opposed to necessarily successful comedic choices.

GROSS: Boy, I like the way you put that, passionate comedic choices.

Mr. COLBERT: Well, yeah. I mean, Jon has asked us to be political and to share his interest in doing political comedy that actually has some thought behind it, and as a result, if you don't do something that you feel passionately about, if you're not talking in a passionate way about it, you're gonna sound just as false as a politician who's doing a stump speech that is to please his audience and doesn't reflect a dearly held political idea. And more than anything else, we don't want to sound predictable and we don't want to sound--or I don't want to sound like I don't believe what I'm saying.

A nice thing about Colbert is that he cared first about being funny and only explored his political ideas because it was part of the comic role he had taken. The passion was for comedy, not politics. That means he's not a natural politico. (I like people like that; I identify with them.) Forced to take a political position, he was surprised by how liberal he was.

Now, you could say, but the environment of "The Daily Show" is so liberal that perhaps an unpolitical person would falsely "discover" that he was a big liberal. Creating his own show, he embodied himself in a ridiculous conservative character. But why did he do that? Our Congressmen and -women are wondering! Maybe at some point, he saw that he was only a chameleon on "The Daily Show" and longed to express conservative opinions, so he created the "Colbert Report" character so he could say all those things and still not lose all his liberal friends.

Sorry, that's the best I can do in an effort to absolve our representatives of the charge of cluelessness.

How to beef up that "Big Love" website.

Yesterday, I complained about "Big Love" being too much about financial problems. I don't like watching someone suffering over financial problems. But Gordon Smith Christine Hurt -- he's she's a corporate lawprof -- loves that there's a show about financial problems. He She even wants to see the documents. Hey, HBO has a great website for "Big Love." Margene even has a goofy blog. Surely, they could put up the copies of the financial documents to feed the corporate lawprof blog niche.

CORRECTION: Sorry. The post is by Gordon's co-blogger Christine Hurt, also a corporate lawprof.

MORE: I'm trying to think of movies or TV shows that have concentrated on the financial problems of fictional characters. Are there any that I've enjoyed? I'm not including the general problems of being poor (or too rich), but the actual details of business transactions between characters. It's one thing for a lawprof to spot a legal issue and find that interesting to expound upon, but does one's interest in those underlying legal issues make the show enjoyable? I follow issues of jurisdiction in law, but I don't think I'd enjoy a drama about characters encountering jurisidiction problems. I'd love to blog about them, of course.

ADDED: Let me cite "Fargo" as an example of a great movie with a story built on financial transactions.

YET MORE: Larry Ribstein makes the excellent point that financial problems and polygamy are inherently intertwined and that the show displays that quite well. Ribstein brings in the comparison between polygamy and gay marriage, a point I discussed back here. I think the two arrangements are distinguishable precisely on the economic level.

Bloggership Linkership.

Ian Best has a comprehensive collection of links about last Friday's "Bloggership" conference. Let's follow some of them.

I see Harvard lawprof Charles Nesson is making a bid for a spot in my banner by calling me "The glint on the edge of Solomon's Sword." That refers to something I wrote a long time ago, which I don't have a link for, but if you've got Lexis, search the law review file for his name and mine.

Daniel Solove did a nice bloggerly job of condensing everyone's talk into a one-liner.

Howard Bashman has this to say:

At a conference chock-full of law professor bloggers, you might expect that among the presenters the ratio of law geeks to non-law geeks would be quite high. In that respect, I found it interesting to observe first-hand that the coolness (or lack of coolness) of a given law professor's blog did not reliably indicate the coolness (or lack of coolness) of the blog's author. Not surprisingly, however, with Ann she was every bit as cool as her blog....

I wonder who the sentence before the sentence about me refers to. Who's the uncool lawprof with the cool blog and who's the cool lawprof with the uncool blog?

Timothy Armstrong sure took detailed notes. Thanks for reminding me of what I said. I was sort of wondering!

Roger Alford has a list of predictions for the future of law professors, e.g., "Law professors currently target their scholarship to appeal to student editors at major law journals (while also targeting their peers). In future decades, law professors will target their peers directly without intermediaries." Yeah, "disintermediation" -- I learned that word from Larry Solum.

But enough about the Bloggership conference. It's Monday, I'm back in Madison, and it's time to reengage with life here. Oddly, I've got to give a presentation about blogging today, at the "Socio-Legal Studies BrownBag." My colleague Gordon Smith, who was at the conference, is co-presenting, so it might feel a lot like the conference, but I'm thinking it won't be. A different crowd attends a "Socio-Legal Studies BrownBag" in Madison, Wisconsin then attends a conference on blogging and legal scholarship at Harvard. Expect me to reflect on the differences later today. And I've got to attend a Faculty Senate meeting today too. (I'm the Law School's alternate senator.) But what I really need to do is write some exams.

Digression prompted by the word "BrownBag": At the hotel the other day, I was watching some old "Monty Python" episode, and there was a sketch in which Graham Chapman played a man who would put a bag on his head whenever anyone said "mattress." It was typical Python nonsense, but Chapman had a way of putting the bag on his head that was far funnier than anything anyone else did. It was rather mysterious, that comic genius. How amusingly could you put a paper bag on your head? But I will not be putting a bag on my head at the "Socio-Legal Studies BrownBag," even though "Socio-Legal Studies BrownBag" sounds so serioso it makes me want to put a bag on my head.

Live-blogging the Bloggership conference!

I'm here, in the nerdy front row, and I'll be live-blogging all day.

Here's the link if you want to listen. No video, so you'll just have to picture a bunch of lawproffy types in a cavernous auditorium at Harvard Law School.

Next to me is Randy Barnett, who's reading my blogging on his Palm Treo 650, showing me that he's reading it, taking a picture of me blogging, and emailing me the picture to blog. Is that self-referential enough for you? It's really, really bloggy. And we're just getting started.

The photo:



Don't you love technology?

Gordon Smith is nudging me and saying pay attention. Good point! Live-blogging should entail paying attention. Paul Caron is talking. And Gordon is also live-blogging. Do we care about what the speaker is saying or what the bloggers in the audience are blogging about it and linking to each other and blogging about the blogging?

9:13: Here's the agenda, listing the times of the speakers. Paul Caron is doing the introduction, assembling a lot of statistics about blogging and scholarship. Paul used a lot of PowerPoint slides. There's a huge screen, and I haven't got slides myself. Now Doug Berman is speaking, and he's just displaying his blog on the big screen. So I guess I'll end up putting mine up too and that will mean this very post will be up on the screen. Should lawprofs be blogging?, Doug Berman asks. Hey, Randy's commenting on this post, I just noticed, causing him to turn that Treo thing away. I have to read it the tech way, after he posts it here.

9:22: Here's Gordon's live-blogging post. He notes the many empty seats in the room, so we big bloggers aren't such a huge draw. Somehow, I think the students are probably sleeping at this hour. Or are they studying or taking exams? Is anyone listening to the live feed? Gordon is putting together his PowerPoint slides, Googling for a picture for "network."

9:27: Berman rejects the notion that lawprof blogs are like listening in on a faculty lounge conversation. "It's not as robust and engaged as the law professor blogosphere is." I'm trying to think if things in Lubar Lounge are "robust and engaged." Randy tells me he can't post his comment because he doesn't have a Blogger account. Email it to me:

It is divine to be seated next to Ms. Althouse watching her at work . . . I mean at play. Maybe she will let me borrow her PC so I can post a link on the Volokh Conspiracy to her blogging here. I have not yet installed a blogging client on my Treo 650.

He used the Althouse code word "divine," but he called my PowerBook a "PC."

9:37: Larry Solum says blogs aren't changing anything about legal scholarship but are manifestations of other changes. He loves very long law review articles, but concedes that no one reads them. Yes, it's a funny thing about blogging: it's read. You have these elaborately written things that aren't read, and then everyone thinks of blogging as just thrown together. But short posts can be carefully written, and they can embody ideas that you have thought through in more formal scholarship. Larry's saying that short form "disintermediated" writing is a trend, and not just in blogging. He'd like to see a Wiki law encyclopedia.

9:47: Kate Litvak, commenting on the laptops in the audience, says she's going to ban computers in the classroom. Is she trying to tell me to to close the laptop? She's the panelist who doesn't have a blog.

10:05: Paul Butler starts the commentary on the articles, which he finds insufficiently excited about blogging. He says: "The blog is walking up to legal scholarship and slapping it in the face."

10:10: Butler asks, "What if law review articles had Site Meters?"

Eric Muller blogs a contribution to the scholarship and blogging conversation.

10:17: Jim Lindgren: "Why do you want to know if it's scholarship or not?"

10:35: Ellen Podgor says that before she started blogging -- at White Collar Crime Prof Blog -- she had never been quoted in the Wall Street Journal. She teaches at Stetson, note well. The reporters used to call lawprofs based on their law schools. Blogging can shake up the hierarchy and give different people a chance to be heard.

11:10: Gail Heriot says blogging is fun and lawprofs can do whatever we want. That's stating the problem plainly! "The legal academy has turned inward on itself," she says, describing what legal scholarship has become. It doesn't speak to lawyers and judges. Blogging lets the lawprof get back in connection with the practical legal world, to influence people on the issues of the day.

11:22: The audience has gotten a lot bigger since the break. I wonder if people in the room are reading my simulblogging. Leave a comment! Or are you going to tell me you can't register with Blogger? Email me, then (my last name, followed by @wisc.edu).

11:26: Orin Kerr starts off funny. He uses the computer on the lectern to check his Site Meter statistics. He's all, "Hold on just a sec..." Then he pretends he's accidentally brought his old notes from a 1999 conference called "Listservship: How Email Is Changing Legal Scholarship).

11:35: Orin ends by saying that if anyone is live-blogging the conference, we should say that he got thunderous applause and a standing ovation. Now, Gordon is up and he starts by displaying this post of mine, photo and all. He calls attention to the part about how he's putting together his PowerPoint slides, and then that's his intro into his PowerPoint presentation.

11:45: Gordon does care about whether blogging is considered scholarship, because he wants to legitimate what he's doing. Randy Barnett is next, and he frets about the "flight from scholarship," which has long been the "dirty little secret" of lawprofdom. "It's a syndrome," one symptom of which is saying nobody reads legal scholarship, and it doesn't matter. "I should also mention that a lot of law professors don't like teaching. Or serving on committees." Lots of lawprofs are looking for "something else." And along comes blogging, and the self-justifications of the lawprofs who get into it.



12:00: Michael Froomkin mentions classroom blogs. He suggests that lawprofs write 1 or 2 page posts reviewing long-form scholarship.

12:10. Question time. They've got a microphone now. The first question is about the "performative" nature of blogging, meaning that bloggers are performing for an audience.

2:00. Back from lunch, and now Glenn Reynolds is video-ing in his talk. He did not -- as I thought he might -- laugh at us for going to the conference, us low-tech losers. Walking to lunch, we were talking about the coming video'd-in performance, and Randy Barnett commented on how Glenn was going to be a 12 foot head on the screen, then said that Glenn Reynolds actually was a 12 foot head, which is why he couldn't appear in person. Waiting for the talk to start, Jim Lindgren compared him to Orson on "Mork and Mindy." Glenn compared himself to some other pop culture character on a screen, but I've forgotten which one. Anyway, Glenn's talking about why there are so few libel suits against bloggers. Answer: Bloggers are unlikely to commit libel. They're big on support, and their mistakes get pointed out and corrected quickly. Also, bloggers are less trusted so the crap they (we) say causes less harm.

2:15: Eugene Volokh is talking about blogging and liability. Lots of detail: listen to the podcast. Should bloggers get worse treatment than traditional journalists? That's just one of many things he covered.

2:30: Eric Goldman has a very specific topic: group blogging activities. Being a solo blogger, I guess I don't have to worry about these problems... unless you commenters are causing problems.

2:38: Jim Lindgren types with one finger. You rarely see that anymore.

2:50: Betsy Malloy is talking about anonymous bloggers and what rights they have to preserve their privacy.

2:55: Daniel Solove is comparing Eugene Volokh and Jessica Cutler (the "Washingtonienne"): both so love to blog about sex.

3:45: My panel is about to start. I'm up on the dais now and feeling nervous, even though I think there will hardly be any audience left (except out there is cyberspace, so I guess I can't just fool around). I check my email. A student at Georgetown has sent me this:



3:50: Larry Ribstein is listing the categories of lawprof blogposts: amateur journalism, self-expression, "blogicles" (little law scholarship articles), self-promotion (getting people to download your articles), and publicly engaged academic posts ("PEAPs").



The PEAPs idea is to "leverage your expertise" as you contribute to the public debate. You tap your serious scholarship, as you write about some timely issue.

4:05: I notice that Glenn noticed I was blogging about his head.

4:22: I'm done! Having written my article in bloggish form, I tried to do the talk in podcasty form (which is bizarrely stressful!).

4:25: Christine Hurt is talking about blogging without tenure.

4:28: Christine says that by blogging -- as part of reading the news every day -- she forces herself to keep up with legal developments, which gives her a headstart on the serious projects she begins in the summer. If she weren't blogging, she says, she'd be more consumed with teaching during the school year and putting off reading up on the current developments. This is a good point: I know I read cases as soon as they come out, cases that, pre-blogging, I would have just downloaded for later consumption.

4:38: Howard Bashman is up to comment on Larry, Christine, and me. He also has a lot to say about his blog, How Appealing.

4:50. Peter Lattman, the Wall Street Journal legal blogger, is next. He says journalists don't see bloggers as competition, but as fodder.

5:12. Nice questions. Listen to them in the podcast. Now, Harvard lawprof Charles Nesson is closing and talking about the Berkman Center, which sponsored the event. The internet, he says, has thrived because large institutions haven't figured out how to use it yet. There's a danger now, and he has a proposal, which you can hear on the podcast.

THE END!

ADDED: Douglas Berman was live-blogging here. And Larry Solum sort of disagrees with me here (that is, he thinks that to be taken seriously, a law scholar had better keep the fun stuff on a separate blog). Solum is concerned about how "academic administrators" will figure out how to reward the part of the blog that deserves to be considered part of one's professional work. I'll just say that I have not encountered this problem at the University of Wisconsin Law School and assert that that makes my school cooler than the schools that fret about clear line drawing, like a child eating dinner and worring that the meat is touching the mashed potatoes!

Meet the bloggers.

There's that big "Bloggership" conference at Harvard Law School this Friday. Not only can you attend this conference -- it's free and open to the public -- you can even hang out in the Zephyr Lounge with us the night before the conference, Thursday, 9 to 11 pm. (The Zephyr Lounge is at the Hyatt Regency Cambridge, 575 Memorial Drive.)

It sounds disturbingly intimate, but all these characters are doing it: Randy Barnett, Howard Bashman, Douglas Berman, Paul Butler, Paul Caron, Michael Froomkin, Eric Goldman, Gail Heriot, Christine Hurt, Orin Kerr, Peter Lattman, Jim Lindgren, Betsy Malloy, Ellen Podgor, Larry Ribstein, Gordon Smith, Dan Solove, Larry Solum, Eugene Volokh, and me.

I wonder if anyone will blog about it.

Counting the laughs...

... in Supreme Court oral arguments.

Is a sense of humor a mark of a good judicial mind? It's Scalia and then Breyer with the most laughs, and Roberts is off to a good start.

To get laughs from your sense of humor, of course, you've got to make your observations out loud. Who knows what amusing things Clarence Thomas is thinking in his silence? I know I'd have different thoughts depending on whether I actively engaged in debate with the lawyers. If I did, I'd have to concentrate on the terms of the legal argument. If I didn't, I'd think much more about how the lawyers and judges looked and acted as characters in a human drama -- a very rich source of witty remarks, but nothing you can interpose at oral argument.

ADDED: Why isn't Green Bag available on line? It would be nice to be able to read an link to Professor Wexler's article (the basis for the article I linked to above).

MORE: Gordon Smith aptly observes that counting the laughs mostly only counts which judges think they are funny, since the captive audience will tend to oblige the judge with a laugh when he tries to be funny. What are you going to do? Groan and roll your eyes? Also, the courtroom is a tense and sober place that laughing is a special relief. You might have had any number of things you wanted to laugh at and had to stifle yourself.

AND: Here's a PDF of the Wexler article!

"We need to stop blaming, suspecting and overly medicating our boys, as if we can change this guy into the learner we want."

"When we decide -- as we did with our daughters -- that there isn't anything inherently wrong with our sons, when we look closely at the system that boys learn in, we will discover these boys again, for all that they are."

From an article in the Washington Post, analyzing the gender gap in higher education. Via Gordon Smith.

Here's an old post of mine on the topic of the male/female imbalance. I find it interesting that Gordon says, "The biggest change over the past 15 years is that gender is no longer a diversity factor in admissions." I think he means that femaleness is no longer a plus factor. But I don't think he ought to be assuming that maleness hasn't become a plus factor.

"Did Roger Simon Form a Partnership With Dennis the Peasant?"

Entrepreneurship lawprof Gordon Smith does some analyzing

The story bears a striking resemblance to the facts of Urban Decay, where a California appellate court held that two women who developed ideas for a cosmetics company had formed a partnership.

Only one way to be "pre-eminent"?

I kept at my post in Room 3226 all day yesterday, serving as reporter for the curriculum discussion at the law school retreat. Gordon Smith was a discussion leader on the subject of how to be a "pre-eminent" law school. Here's his post, stating his view about what a law school needs to do to win the good opinion of outsiders: We need to publish a lot of articles in top law journals. Period!

No law school that I know of has become pre-eminent on the strength of teaching, clinics, community service, curricular innovation, specialty programs, etc. Each of these aspects of the law school product is important, to one degree or another, but they have very little impact on the wider reputation of a law school among law professors, judges, and practicing lawyers.

What about "non-traditional" scholarship, which may appear in obscure peer-reviewed journals or specialized monographs. This may be very valuable work to people who work in the specialized field, but the key issue when considering its effect on reputation is whether people outside the field notice. Does it connect with a broad range of legal scholars? If not, I suspect that it will have a negligable effect on the law school's reputation, at least as far as prospective students and many prospective faculty are concerned.

I wasn't in the "pre-eminent law school" room, so I lack information on how the Wisconsin Law School faculty actually responded, but, until I hear otherwise, I'm going to guess that Gordon's opinion was damned controversial.

Ours is a law school that prides itself on "non-traditional" scholarship. Hey! Does that include blogging?