The Volokh Conspiracy

Would you consider it sound for one academic to attack a paper written by another, calling it (among other things) “obviously erroneous” and “simply stupid,” based upon a third-party representation of what it says?  And would you consider it responsible to use the third-party representation of said paper as Exhibit A for questioning why the author has a tenured job at a prestigious academic institution?  You would if you were University of California at Berkeley economics professor J. Bradford DeLong, who has continued his series of attacks against University of Chicago law professor M. Todd Henderson.  ”I genuinely do not understand why Henderson has his job,” writes DeLong, pointing not to anything Henderson himself wrote but instead to what another academic blogger wrote about Henderson’s scholarship.  [Yes, this is the same Professor DeLong who repeats baseless accusations against other academics and then, when asked to substantiate his charges, selectively edits his comment threads and then dissembles about said editing when called on it.]

According to University of Illinois law professor Larry Ribstein, DeLong’s attack on Henderson’s scholarship is quite off base:

the most remarkable thing about DeLong’s post is that it accuses Todd of being “stupid” and unfit for law teaching because of an argument Todd didn’t make!

If DeLong had bothered to look even at the abstract of Todd’s article, perhaps he would have noticed that the article’s not about alignment of incentives, but about whether boards bargain with insiders over their gains.  Todd finds evidence consistent with the hypothesis that “boards pay executives in a way that reflects the profits they are expected to earn from informed trades.” . . .

I will leave it to the reader to decide what we should make of a Professor of Economics at U.C Berkeley, Chair of Berkeley’s Political Economy major and former Deputy Assistant Secretary of the Treasury who is willing, in print, to accuse somebody of being “simply stupid” for a position he does not take expressed in a blog post he didn’t write.

J.W. Verret has more here and here.

UPDATE: DeLong responds here.

Co-blogger Eugene Volokh gives some sensible reasons for why he chooses not to blog about some topics. I gave my own criteria for making such decisions here:

I try to limit blogging to issues where I have a comparative advantage: that is, questions on which I can say something useful or interesting that is unlikely to be said by others.....

I take seriously the implications of some of my own scholarly work on political ignorance. Merely knowing a few basic facts that can be gleaned from perusing a newspaper is not enough knowledge to conclude that I have something original and important to say about an issue, except in very rare cases where the issue in question is unusually simple. My experience as an expert on political information is that there are far more issues that are more complex than most nonexperts believe than the reverse....

For these reasons, I try to limit my posts on political issues to the following three categories:

1. Issues on which I am an expert (primarily political participation, federalism, and property rights). This is where I have the greatest chance of making an original contribution.

2. Issues on which I’m not officially an expert, but have a lot of knowledge because I follow them closely (i.e. – far more closely than merely reading occasional articles about them in the media or online).

3. Rare cases that fall outside of 1 and 2, where I come up with an original point that other commentators have for some reason ignored.

Have I violated these principles in the four years since I first developed them? Probably. There surely have been situations where I thought that some issue fell under category 2 or 3 when it really didn’t. Even experts on ignorance sometimes overrate their knowledge! But the fact that I don’t follow my own rules perfectly doesn’t mean they aren’t good rules. The quality of political debate would be improved if more pundits stuck to issues where they know what they are talking about.

Many people (including, perhaps, a few of our readers) tend to assume that if you are a lawyer or a law professor, that must mean you are an expert on every possible legal issue. In reality, that simply isn’t true. There is far too much law out there for anyone to be an expert on more than a small fraction of it. Even within a particular subfield, it’s hard to be an expert on every part of it. For example, I teach constitutional law. But that doesn’t make me an expert on every constitutional issue out there. I know a lot about federalism and property rights, the issues I write about the most. I also have considerable (though lesser) knowledge of several other constitutional issues. On the other hand, there are areas of constitutional law (e.g. – the criminal law provisions) that I know very little about.

I try to be aware of the limits of my expertise, and so should my readers. If you want to read about a subject that I don’t know much about, you are better off looking up the works of someone who is a real expert in the field rather than asking me to write about it.

I’m sure Our Chief Conspirator is far too shy, modest, and retiring to note that the ABA Journal is inviting people to come and name their favorite legal blogs ... but I’m not.

It is an interesting format, actually – it is not an online vote or poll, where the blogs with the most buddies win.  Rather, the editors are making their own judgments, and are asking for responders to say in the comments to the page why they favor this blog, what they like (or don’t) about it.  They’d like to hear from a lot of people, but are interested in what they have to say and are making their own editorial judgments.  (I should add, though, that I am torn between loyalties, as I post here as well as Opinio Juris, the specialty international law professor blog; those of you who read it as well as VC might considering posting about it, too.)

Someone emailed to ask me what law professor blogs (Insta and Althouse aside, and Opinio Juris) I regularly read and routinely check (I don’t use a feed).  Just off the top of my head – I am probably forgetting some:

• Lawfare (the new Wittes-Chesney-Goldsmith national security law blog);
• EJILTalk (blog of the European Journal of International Law);
• Larry Solum’s Legal Theory Blog;
• Balkinization;
• Truth on the Market;
• Concurring Opinions;
• The Conglomerate;
• Bainbridge;
• The Faculty Lounge;
• International Law Reporter. (ps, if you’re in the IL academic biz, hugely helpful!)

But that’s not including a bunch of econ and finance blogs, also national security and milblogs; robotics blogs; etc. that I also check regularly.  I read a lot of blogs, probably more than is good for my scholarly productivity.

I just learned that SALT — the Society of American Law Teachers, as which bills itself as “a community of progressive law teachers working for justice, diversity and academic excellence” — has a blog: The SALTLAW Blog. Worth checking out.

University of Illinois law professor Larry Ribstein is abandoning his solo blog, Ideoblog, and joining Truth on the Market. More here.

The latest National Journal poll of political bloggers asked: “With the Gulf of Mexico oil spill, does it make political sense for President Obama to stick to his plans to allow increased oil and gas development along the coasts?” Only 6% of the Left, but 75% of the Right thought that it did still make political sense. I thought it didn’t make political sense, unless the President were ready to make a strong affirmative case: “The president would have to convince the public why some types of new drilling would not pose the same risks that the BP well did.”

The other question asked what is best for the Democratic/Republican parties this year on immigration. Two-thirds of the Left thought Democrats would be best off with a pathway to citizenship, and without any tougher enforcement. Nobody on the Right thought that would be a good idea for Republicans. The Right bloggers split between citizenship + enforcement, enforcement without citizenship, and “stay away from the issue.”

My vote was for the middle choice, at least as the essential first step: “Effectively closing the border has to come first. Offering citizenship but without effectively securing the border would simply repeat the mistake of 1986 and result in even more illegal immigration.”

This poll marked the last of the National Journal’s weekly blogger polls as part of NJ’s “Blogometer.” The National Journal is undergoing major budget cuts, and Blogometer is disappearing, although parts of its will be folded into other National Journal coverage.

Far worse, from a social utility point of view, than the disappearance of the blogger polls is National Journal cutting Stuart Taylor’s weekly column. Taylor is one of the best legal journalists in the United States, and he will continue to write for a variety of other outlets. However, the loss of his weekly column is a major loss of high-quality legal journalism.

Last year, Maryland law professor Danielle Citron published “Cyber Civil Rights” in the BU Law Review. Here’s the abstract:

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. . . . Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital “scarlet letters” that ruin reputations.

. . . .

General criminal statutes and tort law proscribe much of the mobs’ destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim’s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

Citron’s article detailed some particular cases of such abuses. As she acknowledged, the mob actions are solidly within the scope of existing criminal law and tort law. Nevertheless, she made the case that federal civil rights laws should be revised to cover Internet threats and defamation–since civil rights statutes provide attorney’s fees for a successful plaintiff, and since prosecutors would be more likely to bring criminal charges if the underlying offense has a civil rights association. She arguds that “Just as changing circumstances justified curtailing the right of contracts in the 1930s, today’s networked environment warrants a rejection of free speech absolutism.”

Citron also proposed that website operators be civilly liable for the content of postings on their websites (by means of an exception to 47 U.S.C. § 230, the immunity statute), and that operators be required to collect and maintains ISP logs for all posters.

Last fall, the Denver University Law Review held a symposium about Citron’s proposal, featuring commentary from 11 scholars, plus a response from Citron. Rather than being required to submit a full-length article, the commenters for the on-line symposium were asked to provide a lightly-annotated essays. The full collection of commentary is here, as a PDF. (HTML versions of individual comments are here.)

Essays by Paul Ohm, Viva Moffett, and Wendy Seltzer suggest that mandatory ISP collection and civil liability might cause many problems than they would solve. In response, Citron acknowledges the force of these arguments. Accordingly, she suggests that the best remedies would be to amend federal civil rights rights statutes so that they fully cover the abuses she has described. She also suggests that some version of Notice & Takedown might be appropriate, although, as she detailed in her Boston University article, this has problems of its own.

Comments welcome, of course, but before commenting, please read at least one of the essays, or Citron’s original article.

Instapundit points us in the direction of Joseph Bottum’s First Things blog post yesterday; also Althouse’s comment:

[W]hile I was [at NYU Law School] I saw posters for a lecture this afternoon by Eugene Volokh on the structure of slippery-slope arguments.  ... the posters for Volokh’s talk read, as I remember: “Founder of The Volokh Conspiracy blog and Gary T. Schwartz Professor of Law at UCLA.”

I wonder how the Schwartz family feels about that. Indeed, I wonder how UCLA law school feels. For that matter, I wonder how I feel. Since when has even a blog as interesting as the The Volokh Conspiracy trumped, for a law-school audience, a chair at a major law school and all the speaker’s academic publications?  A fascinating change in the culture of things.

Well, heck (and  not speaking for Eugene), I feel pretty darn good as a coat-tails participant at VC!

Starting next week, I’m going to be dividing some of my blogging time as I try out co-blogging over at SCOTUSblog. SCOTUSblog is bolstering its commentary and analysis role, and as a part of that I’m going to be blogging over there occasionally about various aspects of the Court’s criminal law docket (and especially the Fourth Amendment and consitutional criminal procedure cases). My initial plan is to either cross-post those contributions at the VC or at least link to them to alert readers here. Of course, as with many blogging developments, this is an experiment. My previous forays into solo blogging and another group blog didn’t last very long, so we’ll see how this one goes, too. But I’m excited about the opportunity: SCOTUSblog has been one of my daily reads for years, and I think it has a unique and important niche in the legal blogging world.

A few minutes ago I deleted a comment from a conservative commenter, “Gaydude,” that was an obnoxious and personal attack in response to liberal commenter “ArthurKirkland.” GayDude then wrote another comment directed to me that I think deserves a wider audience:

Wait, my post criticizing Arthur’s post was removed? Oh, right, this is an Orin Kerr thread. And now I will post a comment that is much less civil than what I posted before, but it needs to be said, even if it gets me banned. (And hopefully it will.) A message to Orin...

Orin Kerr, in your quest to prove how fair you are (due to your own Kennedy-esque insecurity that stems from not being loved enough by others in your field), you insist on trying to make everything look fair, even when the situation doesn’t call for it . Notice how you make a comment about both DailyKos and RedState. In this situation, it’s perhaps not too bad, but you do this all the time. If you criticize something from the Left, you will always do the same to something from the Right, even if the things or comments or posters in question are not at all the same in terms of degree, just so you can feel better about yourself. It is not intelligent moderation.

On a side note, this kind of silly fairness desire (that is really not fair at all in reality) is exactly what leads to silly rules in schools, in crime & punishment, etc. You are probably against people who shut off their brains in those areas, but fail to see how your kind of “liberal” fairness thinking is actually quite similar to those who do those things (though the reasons for the desire may be different).

Do not confuse this behavior with that of those who intelligently consider all sides. It’s based on something entirely different.

And with that, please ban me. I do hope that one day you will realize there is at least a bit of truth to what I’m saying here.

A few thoughts in response.

First, I think this is the first time a commenter has criticized my comment moderating on the ground that I am trying to be fair. Normally, those who find their uncivil comment deleted claim that I harbor a bias against the commenter and I am afraid to recognize the deep truth of their message. So this is a bit new, and I appreciate that.

Second, moderating comments can make you feel many things, but one thing it cannot make you feel is deeply loved. The kinds of people who write uncivil comments are the kinds of people who get furious when their comments are deleted. They often write in with very angry responses filled with an unusual number of four-letter words, usually indicating their belief that you have some deep-seated insecurity that is making you not realize how right they are. If you need to feel loved, you don’t generally volunteer to spend your time interacting with that sort of person.

Third, Gaydude is right that I am against people “shutting off their brains.” I always have been, and I don’t expect to change that. I realize not everyone agrees, but then it’s a big Internet.

Some of our readers are probably already aware of it, but I only recently found out about Norman Geras’ interesting archive of interviews with prominent political bloggers. Among many others, there is a recent interview with the VC’s own David Bernstein, and earlier ones with Jonathan Adler and Eugene Volokh. In reading the interviews with bloggers of widely differing political ideologies, I found it interesting that such a high percentage chose the spread of weapons of mass destruction as “the main threat to the future peace and security of the world.” There seems to be a cross-ideological consensus on this point, which is perhaps noteworthy. WMD proliferation would also be high on my list of dangers, especially if it becomes easy for individuals or small groups to acquire them.