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Clarified Comment Policy:
VC readers who often comment here might want to note that we have clarified our comment policy (the one posted right below the comment box when you write a comment). It's the same basic policy as before, but a little clearer and shorter:
  Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.
  We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.
  And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.
M (mail):
We think of comment threads like dinner parties at our homes

Does that mean that, while you won't strictly require it, you'd certainly not mind if we brought a nice (though reasonably priced, of course) bottle of wine?
12.9.2008 3:52pm
Allan (mail):
It just seems wrong to have no comments to the comment policy.
12.9.2008 3:53pm
OrinKerr:
M,

Actually, we ask for beer. Not that you owe me a beer or anything (a common misperception).
12.9.2008 3:54pm
Steve:
So I guess it's acceptable, for the time being, to be named Steve.
12.9.2008 3:58pm
Felix Sulla:
Orin,

Isn't that soliciting bribes for doing your public duty? This comment thread has been forwarded to Patrick Fitzgerald.
12.9.2008 3:59pm
Cory J (mail):

So I guess it's acceptable, for the time being, to be named Steve.


As I recall, Steve, you conceded that you visited Alaska.

Even if the "Comment policy" was the same as the "Terms of Service" (which I doubt), you're still committing crimes here, I'm afraid.
12.9.2008 4:09pm
Eugene Volokh (www):
Felix Sulla lecturing us about good government? That's rich. Tell it to Chrysogonus, bub.
12.9.2008 4:10pm
Passing By:
If you break your comment policy by failing to remove a comment that you regard as offensive, can you be federally prosecuted?
12.9.2008 4:15pm
Dave Hardy (mail) (www):
Does this mean you're letting the Alaskans back in?
12.9.2008 4:15pm
Sandy Garnett:
Can you clarify the standards to be used in banning someone completely? "Extreme cases" is not clear enough, and different authors apply this standard in very different ways.

Also, the final sentence seems off base. It offers a very long-term solution to a short-term problem.
12.9.2008 4:15pm
Felix Sulla:
Chrysogonus was thrown off the Tarpeian Rock the minute I was shocked...SHOCKED!...to find out my program of government reform was being used as a front by certain unscrupulous public servants (mostly, Greek freedmen who weren't even Roman citizens) to enrich themselves at the expense of innocent Romans. I regret the incident, and promise to make amends...by apologizing for it in my memoirs, written in luxurious retirement.
12.9.2008 4:17pm
Realist Liberal:
So is this a separate set of TOS? Does that mean that if I don't bring beer to the dinner party I can be prosecuted in federal court? Wow, I guess I do owe Prof. K a beer (I thought I did).
12.9.2008 4:17pm
Hardy Harhar:
We think of comment threads like dinner parties at our homes.

All VC commenters have therefore likely been in your kitchens.
12.9.2008 4:19pm
OrinKerr:
Sandy Garnett,

I gather you do not understand the term "at our discretion."

To fill you in, it means that it's up to us: We use whatever standards seem best to us, and we don't really care if we're being inconsistent with our co-bloggers. Based several years' worth of past experience, the people who object to this are the people who we really don't want commenting: They usually are pretty self-centered people who have no consideration of our time.
12.9.2008 4:21pm
Happyshooter:
Felix Sulla

Now this is good sarcasm.
12.9.2008 4:23pm
Bobo Linq (mail):
Orin,

Is your exercise of discretion subject to abuse-of-discretion review?
12.9.2008 4:25pm
Lucius Cornelius:
My dear Felix Sulla, exactly where are those memoirs?
12.9.2008 4:29pm
Felix Sulla:

My dear Felix Sulla, exactly where are those memoirs?
What, you didn't get the copy I sent you? They seem to be out of print now, and I only have the copy I personally use...just take my word for it, the Chrysogonos thing is fully dealt with.
12.9.2008 4:37pm
Obvious (mail):
You're saying that in return for our abiding by your policy, we get dinner? This is the best deal on the Internet!
12.9.2008 4:37pm
John (mail):
Hey! Which Chrysogonus are you guys talking about? Is it Chrysogonus of Athens? Or Chrysogonus who has never been in my kitchen?
12.9.2008 4:38pm
Sagar:
it would be good if the offending guests were made to pay a small fine, like when you used a cuss word you gotta drop a $ in the jar or something ...
12.9.2008 4:54pm
Ex-Fed (mail) (www):
I think I can live with this.

Of course, I did manage to get banned from an etiquette board. So we'll see.
12.9.2008 5:00pm
guy in the veal calf office (mail) (www):
We think of comment threads like dinner parties at our homes.

So, guests may bring whine, cheese, and spam?
12.9.2008 5:12pm
SupremacyClaus (mail) (www):
I was banned after attacking Eugene personally. The policy below ensued soon thereafter. It is mostly about his feelings. Here, I have seen curse words, personalized death threats, unacceptable language. I have seen links to sites with animal sex, illegal pharmacies. No problem.

Question the professor on substance, and that is unpardonable. He does not know the legal word, reasonable, really means, in accordance with the New Testament. He failed to grasp that the supernatural central doctrines of the law, mind reading, future forecasting, truth detection by gut feelings, standards of conduct set by fictional characters to make them objective, all violate the Establishment Clause. He is an expert on crosses in city flags, but refuses to see the glaring lawlessness of the central doctrines of the law that he indoctrinates into his students daily.

Although we share some beliefs, I believe he is mired in Medieval superstition, unforgivable given his scientific knowledge and his intelligence. I coined the legal term of art, in his honor, "dumbass." That is someone with an IQ of 300 who has been made a mental cripple by a legal education.
12.9.2008 5:21pm
Elmer:
The statute is vague. In some circles, calling attention to grammatical errors such as

Based several years' worth of past experience,
would be acceptable at a dinner party, but in other circles, not. In a subset of the aforementioned dinner parties, an effective defense to the charge of grammatical error would be to countercharge the original accuser with being a poopyhead. Finally, while an argument can be made that Felix Sulla's comments are relevant to the discussion, the standard is clearly a loose one. Without clear guidelines, commenters will be more likely to seek counsel before posting, and to appeal unfavorable judgements, thus increasing the legal profession's share of GDP. Orin is to be commended.
12.9.2008 5:25pm
Fub:
If you think we were mistaken in removing your post (or, in extreme cases, in removing you)...
Will personal removal be done with extreme prejudice?
12.9.2008 5:34pm
Sandy Garnett:
Orin,

I did not mean to complain about your policy. I only meant to ask a question about how it is applied. That's all I meant to do, and I guess I did not do a good job of communicating that in writing. I really did not mean to come across as aggressive, defensive, or one of those self-centered people that enjoys wasting others' time. My thought about the last sentence of the policy was only meant as a thought, especially because the last sentence isn't part of the Policy but is more like some of the reasoning behind the policy. One commenter made a joke about Lori Drew, but I've been thinking a lot about formal or informal terms of use and what they mean, for both the people who create the terms of use and the people who agree to them. Especially in the context of a libertarian-leaning collection of scholars. And banning a commenter seems [very vaguely] related to a DCMA takedown notice, and I've always been interested in those sorts of things.

But now that you brought it up, can I suggest that you should care if one of your co-bloggers permanently bans a poster who did not say anything bad? Or is not a chronic offender? Or if the co-blogger intended to only delete a comment but, inadvertently and without realizing it, banned a person forever?

I would really hope that you care. Permanent is permanent. Not only will the wrongfully banned person be unable to make legitimate contributions to your posts, but others will chill their comments to your posts if they fear that a legitimate comment might be taken the wrong way.

Also, I was disappointed at the tone of your response, which seemed mocking and which seemed more passive aggressive than your usually gracious tone. Maybe I misread your response, and if I did, then it's my mistake. I do understand what "at our discretion" means. But discretion can be bounded or complete. I only wanted to get a sense whether discretion is bounded by something more specific than the standard of "extreme cases." If the answer is "nope", then fine.
12.9.2008 5:37pm
PatHMV (mail) (www):
Eugene...

If you allowed comments on this thread to draw out all the idiots who have been cluttering up too many threads lately, and thus identify prime candidates for banning, I have just one thing to say:

Good Job!
12.9.2008 5:41pm
Felix Sulla:
Elmer said:

Finally, while an argument can be made that Felix Sulla's comments are relevant to the discussion[.]
Civil of you to concede it, old boy! You're certainly welcome to share wine with me at my villa complex, though only to the same extent you are free to share it and/or beer at any conspirator's house subject to the comment policy very generally under discussion in this thread.

Bear in mind that to the extent you are inclined to argue against the relevancy of my commentary, I am rubber and you are glue, Elmer. Therefore whatever you say might bounce off of me and conceivably stick to you. Caveat emptor.
12.9.2008 5:46pm
KenB (mail):
I always assumed the comment policy was more or less as stated. It seems to me one should be able to infer it from the measured tone of the posts themselves. I far prefer discussion to ad hominem.
12.9.2008 5:48pm
OrinKerr:
Sandy Garnett,

The discretion is complete, not bounded, and with quite good reason.

Experience has shown that time spent debating with commenters as to exactly whether their comments crossed some particular bounded line is a remarkable waste of time. To appreciate this, imagine what it is like to write for a blog with 40,000 hits a day and several hundred comments, all in addition to your full-time job plus all of your pro bono projects plus the quite time-consuming task known as "life." We edit comment threads without pay, and it's surprisingly frustrating work: It's like volunteering to be a customer service representative for Comcast.

It's always surprising that many commenters are so selfish that they don't realize this: They think that their time is more important than ours, and they care much less about whether we are frustrated or overworked than whether they feel "chilled" in some vague way. Unfortunately, our policy has to reflect that reality. As a result, the only two options are no comment threads or comment threads with unbounded discretion.
12.9.2008 5:51pm
CRSpartan01 (mail):

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.


Sounds like every law exam I've ever taken.
12.9.2008 6:07pm
jnet (mail):
Thanks for this change in policy. I like to be challenged at dinner parties, not gay-bashed. I stopped reading the comments because the bashing was getting more frequent
12.9.2008 6:10pm
Waldensian (mail):
Previously, wasn't deletion of posts also subject to the "only in extreme cases" qualifier?

If so, I take it posts can now be deleted even in un-extreme circumstances.

I don't actually disagree with that policy. Orin's comments on that make perfect sense to me.

I would note, however, that Prof. Bernstein has already been using the more aggressive approach to comment deletion for some time now.... :)
12.9.2008 6:13pm
Sarcastro (www):
A poster Bill of Rights is all good, but where is the commenter Bill of Rights?

I demand equality, and if I don't receive it I promise to pout impotently!
12.9.2008 6:30pm
ForWhatItsWorth:
SArcastro: ".... pout impotently!...."

I was recently made aware of an amazingly effective pill for that part.... not sure about the pouting.... unless that is what is causing the pouting. :)
12.9.2008 6:39pm
einhverfr (mail) (www):
SupremacyClaus:

You know, I have questioned Eugene on matters of substance. In those cases I turned out to be wrong. However, he seemed to be a reasonable guy.

The fact is that being banned is always an emotional issue. I was banned from another group because of what I felt were substantive disagreements and they thought were attacks. I won't go into the circumstances here. I just think it is worth keeping in mind that there are always multiple viewpoints and sometimes we are not conscious of how we come across.

If you want to continue your little vandetta, my sincere recommendation is to do it somewhere else.
12.9.2008 6:54pm
Crunchy Frog:
If your pout lasts for more than four hours, please seek medical attention immediately.
12.9.2008 6:59pm
einhverfr (mail) (www):
OrinKerr:

As someone who does a lot of open source work, I find your points are generally well thought-out and well considered. As someone who helps maintain other sites without pay. For example, keeping LedgerSMB.org free of spam is sometimes a significant addition to my workload.

However, one element of perspective that I might offer is that comment deletion and banning user tend to become very emotional issues very quickly. It may not be a matter of selfishness so much as feeling like they ought to have their voices heard. I offer this simply in the hope that it may help shift views of things in positive directions in how to handle these when they occur.

There is one suggestion I would make that will substantially reduce workload in my experience. If a commenter is becoming a problem, sending a warning prior to banning will help reduce the confrontation when it occurs.
12.9.2008 7:16pm
CDR D (mail):
>>>If your pout lasts for more than four hours, please seek medical attention immediately.


<<<

Now, see here, Crunchy Frog, this kind of snot is really not "relevant".

It's funny, and I do enjoy this kind of levity, but evidently the rules Professor Kerr has laid down do not permit it.

Go to your corner.
12.9.2008 7:26pm
OrinKerr:
einhverfr,

Yes, I usually provide a warning, and sometimes several warnings. In my experience, though, the commenters who are likely to act in ways that trigger a warning and also likely to get quite enraged at receiving one: They usually think they have been singled out because I cannot handle their views, and they get only more upset that they are being criticized and potentially censored. They generally demand to know exactly where the line is drawn, and invoke lots of constitutional principles (most often the First Amendment, Due Process, and/or Equal Protection) in favor of them being allowed to do what they want. Some demand an accounting of past bans; some threaten to raise their treatment with Eugene. It's all kind of silly, and it's that kind of silliness that our new comment policy is trying to avoid.

It is true that once in a while, a commenter who receives a warning indicates a good faith interest in complying with the comment policy in the future. But it's actually pretty rare.
12.9.2008 7:35pm
pete (mail) (www):
But don't you call this are libertarian blog! How can you dare delete comments and interfere with our freedom of speech?

/sarcasm

(I actually hope the commenters delete more comments than they have been)
12.9.2008 7:35pm
KeithK (mail):
I like the new comment policy. It's shorter, which means that there's less scrolling up to find the end of the thread or the comment box after I hit End.
12.9.2008 7:53pm
einhverfr (mail) (www):
OrinKerr:

one other policy we came up with on the LedgerSMB project was to (generally) try to delegate out enforcement to others. I.e. it is better to have a colleague ban someone who responds to you than to do it yourself. This helps ensure an image that it isn't just being used to silence debate.
12.9.2008 7:55pm
George Weiss (mail) (www):
two observations:

1) this was really the policy before in practice-the wording has simply changed.

2) its interesting how its almost exclusively orin (and from time to time DB in a middle east post) who end up being the deleters/banners. either IS and EV don't seem to get as annoyed as orin does or commentators are disproportionately rude on Orin's threads. probably a little of both since it's usually Orin frequently offers opinions that are not libertarian or explains the reality of a legal structure which is not libertarian. (other conspirators also explain not libertarian legal structures but usually do so in a highly critical way.
12.9.2008 7:56pm
Eugene Volokh (www):
George Weiss: I don't see how you can know who has blocked how many IP addresses, since very few of the blocks are announced.

I didn't even know the counts until I checked our banned IP address database. My quick count is 140 banned by me, handily beating Orin's 67. (We lawyers are very competitive.) David Bernstein has 25. Haven't checked the others, but you see my point.
12.9.2008 8:04pm
George Weiss (mail) (www):
EV

thanks for the info.

my thoughts were based on my experiences with deleting posts and i (obviously wrongly) extrapolated this to banning.

i still think orin is the leader in deleting/editing posts.
12.9.2008 8:11pm
SATA_Interface:
But most of the comments that I disagree with on this blog are exactly what my father-in-law would say at my dinner parties...
12.9.2008 8:46pm
fortyninerdweet (mail):
Just think, Orin. If it ever gets really quiet here you can re-revise the Comment Policy once more and stir folks up for hours and hours again. I love it. Of course I'm shamelessly sucking up!
12.9.2008 8:50pm
Elliot123 (mail):
Thank God you changed the comment policy. The old one sounded like it was written by a bunch of lawyers.
12.9.2008 8:58pm
Kazinski:
Get to the bottom line Orin, if I violate your comment TOS, and call somebody an asshole, is it a misdemeanor or a felony, and what are the sentencing guidelines? And if I roll over on a bigger fish, or entrap one, like say Greedy Clerk, how much of a sentence reduction can I expect?
12.9.2008 9:19pm
OrinKerr:
George Weiss,

One thing to note is that I usually take the extra time to make my deletions public and to add an explanation of why I deleted the comment: I will usually write, for example, "[Deleted by OK on x grounds]". My understanding is that my co-bloggers generally just delete the comments without explanation and without making it public. Given that, I'm not so sure I delete more than others.
12.9.2008 9:45pm
winstontwo (mail):
Since you once warned me that my comment "Awww, c'mon Orin" was uncivil and in violation of the comment policy, your views about what is and is not acceptable have always been, shall we say, elastic.
12.9.2008 11:32pm
George Weiss (mail) (www):
Orin-

thanks for the clarification..that makes sense
12.10.2008 12:47am
LM (mail):
winstontwo:

Since you once warned me that my comment "Awww, c'mon Orin" was uncivil and in violation of the comment policy, your views about what is and is not acceptable have always been, shall we say, elastic.

Do you think, "Awww, c'mon" is substantive and courteous? Because it isn't. It's a euphemism for "you don't really believe that, do you?" I agree it's mild for what we're accustomed to here, and I often do worse so I'm not pointing fingers, but you wouldn't put it in a letter to a judge, would you?

This place can be like a freeway where everyone's doing 80, and you were the one a who got arbitrarily pulled over. Your bad luck, but short of shutting down the freeway how else do you let everyone know they're exceeding the speed limit?
12.10.2008 1:31am
Kazinski:
I'm appalled that Eugene has banned 140 posters. You'd think a constitutional scholar would know that the first amendment guarantees us the right to post what ever we want on his blog, or is that only a collective right?
12.10.2008 2:22am
Tony Tutins (mail):
I'm curious if the rewording of the policy means we the commentariat have been markedly uncivil lately, or if this is just the writer's urge to polish what has already proved acceptable.
12.10.2008 2:27am
Modus Ponens:
i'm proud to have been (and to be as yet) 1 of the 25 banned by Bernstein.

the bannable offense--if i remember correctly--was, in response to an Obama conspiracy theory, the rhetorical question "what does this have to do with Bill Ayers?".
12.10.2008 8:01am
jweaks:
As a casual commenter I would like thank the owner(s) for allowing me to do so and for trying to keep it civil.
12.10.2008 9:16am
man from mars:
Isn't this sentence incorrect:

"If you make the party unpleasant for us or for others, we'd rather you went elsewhere." ?

To my ear, "you go elsewhere" sounds better.
12.10.2008 10:57am
man from mars:
Also, if you really want to improve the abysmal quality of discourse on here, you should do two things:

1. You should place in the ToS that commenters are limited to lawyers and law students. Although non-lawyers occasionally say something interesting, most of the time they veer the conversation off-course, and they prevent knowledgeable commenters from pitching their comments to other lawyers without risking being misunderstood.

2. You should implement a thread system for comments, such as via phpBB, in order to allow serious works of scholarship or research to be included in the comments. The comment implementation you have now is far out-of-date and impedes all but the most trivial discussions.
12.10.2008 11:03am
TCO:
1. This is the best blog on the net.

2. I like that you barely ever censor me.

3. I don't like the lack of reaction to my provactive comments.
12.10.2008 12:53pm
TCO:
I don't like the people who whine about being banned. Better to take it like a man and wear it like a badge of honor.
12.10.2008 12:57pm
David Warner:
"I'm appalled that Eugene has banned 140 posters. You'd think a constitutional scholar would know that the first amendment guarantees us the right to post what ever we want on his blog, or is that only a collective right?"

I'll have it be known that I have yet to ban anyone. Let it never be said that I do not stand for absolutely unfettered free expression, unlike some people around here! Harumph!
12.10.2008 2:08pm
Waldensian (mail):

i still think orin is the leader in deleting/editing posts.

Dude, no way. It has GOT to be Prof. Bernstein.

I'll bet you a beer!! :)
12.10.2008 4:07pm
OrinKerr:
Winston Two --

What LM said. I trust that this is all pretty obvious to most people: in my experience, the folks who find this tricky are the ones who we really don't want commenting anyway.
12.10.2008 8:21pm
man from mars:
I still don't understand the grammar in the sentence in the new policy "If you make the party unpleasant for us or for others, we'd rather you went elsewhere."

It seems to me that "went" should be the subjunctive of the verb "to go," which would just be "go."

Now the subjunctive is a tricky form in English, but I don't see this as a borderline case. "Went" is only used for the past tense of "to go."

Even if the first part had read "If you were to make the party unpleasant..." or "If you would make the party unpleasant" you would still use the garden-variety subjunctive. And even if you didn't use the subjunctive, on the theory that it's a disfavored tense (not that I agree with that theory), you would still say "go" in the present tense, rather than the subjunctive.

There just doesn't seem to be any justification, even an idiomatic one, for using the past tense of "to go" there.
12.10.2008 11:53pm
Elliot123 (mail):
"1. You should place in the ToS that commenters are limited to lawyers and law students. Although non-lawyers occasionally say something interesting, most of the time they veer the conversation off-course, and they prevent knowledgeable commenters from pitching their comments to other lawyers without risking being misunderstood."

This becomes a huge problem in the song lyrics posts.
12.12.2008 1:50pm

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If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.