Law Review Innovation: The Peer-Assist System

Back when I first joined this blog in November 2006, one of the first topics I discussed was law review innovation (see here and here). What I didn't disclose back then was that law reviews were on my mind because just five days before I made my first post here, a few friends and I had submitted to Penn Law School a proposal for a new business law journal (in response to an open call for proposals from the administration). Our proposal, for a journal that would have been called the Wharton Law Review, would have differentiated itself in a variety of ways, some of which I blogged about on here. For instance, in our proposal we advocated for, among other things, a form of open admissions membership and running a law review like a business.

Among those other things was a new form of submissions review, which we dubbed the "peer-assist" system. Rather than try to summarize peer-assist, I will reprint the relevant section from our proposal:

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C. The Peer-Assist System

The most significant departure from the traditional journal structure that we are proposing is what we call the Peer-Assist system. We recognize that this is a novel and ambitious plan, and we are happy to modify any or all of the Peer-Assist structure to fit within the school’s aims. Additionally, we present three versions of the Peer-Assist program, which represent varying degrees of complexity. We believe that Peer-Assist can be of value to any or all of Penn’s journals, but we present it here in the context of the Wharton Law Review. Lastly, because Peer-Assist represents a departure from traditional journal workings, we decided to seek the opinion of faculty members prior to submitting this proposal. We sought responses from 86 faculty members at law schools around the country, of which 36 responded with comments. Most of the responses were positive; some were negative; all were helpful. A complete list of the comments we received is attached to this document as Appendix B.

Sub-section 1 of this section highlights the deficiencies of both student-editing and peer-review. Sub-section 2 describes the full Peer-Assist system that was sent to professors for feedback. Sub-section 3 describes a localized version of the Peer-Assist system, while sub-section 4 explores a student-only version of Peer-Assist.

1. Problems with Current Systems

We believe that the current system of law journals is designed to serve two basic purposes: the dissemination of scholarly works and the training and education of the students involved. The present structure of legal publication is a cross between the two extremes of traditional student-edited journals and fully peer-reviewed journals. Neither of these systems successfully meets both goals, and we hope Peer-Assist serves as an improvement.

i. Problems with Student Editing

Student-edited journals are, of course, the norm in the legal profession. Student-editing allows for the rapid dissemination of scholarly works without the time costs inherent in a lengthy peer-review process. Authors also have the ability to submit to many journals at once, which increases their likelihood of getting published and in a reasonable amount of time. However, many academics have criticized the student-editing system. Students are often under-qualified, or even un-qualified, to be critical reviewers of cutting-edge academic work in many highly specialized disciplines. Additionally, much of the work that students do on traditional journals consists of mechanical acts such as cite-checking, which does little to further the learning process for the students involved. Student-edited journals leave a lot to be desired.

ii. Problems with Peer Review

Peer-reviewed journals also fail to meet these goals. It can often take much longer to publish in a peer-reviewed journal, since the review process is reliant on the schedules of individual faculty reviewers. Also, peer-reviewed journals do not generally allow for multiple submissions, so if an article is not accepted initially, the author has to start the entire process over again. Lastly, peer-reviewed journals do not give their student members substantive tasks such as selecting articles, if they have student members at all.

2. What is Peer-Assist?

i. Description

Our proposed solution to these problems is the Peer-Assist system. This system seeks to tap into the collective wisdom of academics worldwide prior to selecting articles for publication. A journal using the Peer-Assist method would have the same structure as a traditional student-edited journal; only the process would differ. When an article is submitted to the Wharton Law Review, it will be stripped of its identifying information and posted to a secure, password-protected website. Access to this website will be limited to professors of any discipline at any recognized university who request access, all members of the journal (including associate editors), and alumni of the journal. Readers will have the option of browsing articles by subject matter or by keyword, and also will have the option to receive direct email alerts for new articles in certain fields. All readers may submit comments about the articles, which can be as detailed or as frequent as the reader desires. No anonymous comments will be allowed, as the reviewer’s name will be automatically added to every comment he or she submits. Additionally, the content of each comment will be only accessible by the editorial board of the Wharton Law Review, so incoming readers will not be able to see what else has been written about a pending article. Any author may opt out of the Peer-Assist system at his or her discretion, in which case that author’s submission will be reviewed by the editorial board alone. Ideally the Peer-Assist system will include academics from outside the field of law, so that an expert on, say, economics or philosophy can weigh in on cross-disciplinary articles.

It is important to remember that the comments solicited through the Peer-Assist system are simply a tool to aid the editorial board of the Wharton Law Review in its publication decisions. The students of the editorial board will retain final decision-making power over all articles, and will have the option to accept or reject an article at any time, regardless of the feedback received from Peer-Assist.

ii. Benefits of Peer-Assist

The potential benefits of the Peer-Assist system are enormous. The editorial board of the Wharton Law Review would receive guidance from scholars with more experience and more knowledge about specialized subject areas. This would presumably lead to the journal selecting higher-quality articles than a student-edited system alone, while also educating the editorial board to the responses a particular piece garners from other academics. The comments also would give the editorial board ample fodder for potential response pieces or shorter debates, such as the ones that the University of Pennsylvania Law Review currently publishes on its PENNumbra website.

Associate editors on the Wharton Law Review also would have much to gain from the Peer-Assist system. With access to the Peer-Assist database, associate editors would be exposed to a representative sample of the current state of legal academics. Associate editors would have the same ability to comment on articles that professors enjoy. Additionally, the Wharton Law Review can require associate editors to submit substantive comments (similar to a response paper) on a certain number of articles in the Peer-Assist database. This would expand the role of the associate editor into more substantive fields while also increase morale and feelings of involvement on the journal. These voluntary comments or mandatory response papers facilitate the educational training function of the journal, give the editorial board another perspective on the merits of a given article, and provide an excellent barometer of an associate editor’s willingness and analytic abilities, which will aid in third-year selection for the editorial board.

In effect, Peer-Assist takes the benefits that are usually reserved for Articles Editors (including the critical reading of and exposure to many articles) and makes them available to all members of the Wharton Law Review.

At the same time, we believe Peer-Assist represents the best of both worlds for faculty members. The Wharton Law Review can still afford to make relatively rapid publication decisions, but professors will take some comfort in knowing that their articles were reviewed by more than just the students on the editorial board. We also hope that the adoption of Peer-Assist will encourage academics from disciplines other than law to publish in the Wharton Law Review. These professors expect some measure of peer supervision and we hope that they will consider Peer-Assist to be a sufficient substitute, especially when balanced against the benefit of a substantially quicker turnaround time than traditional peer-review.

We believe that Peer-Assist also can be a boon for Penn Law School. If the system is successful, the law school will be viewed as a trailblazer. Even if Peer-Assist is not successful in the long run, Penn will be viewed as an innovator. Several of the law professors who were kind enough to provide advance feedback were so intrigued with the idea that they sought to mention it to their peers, and others asked to blog about it. Regardless of the outcome, Penn’s attempt to improve the journal structure will be noticed throughout the legal academy.

iii. Potential Problems

We recognize that Peer-Assist represents a large departure from the traditional article selection process, and while most of our commentators agreed that the idea was good in principle, there were several recurring criticisms. The most common was the concern that professors across the country have little incentive to give their time to a seemingly random journal. We believe this incentive problem can be alleviated with the offer of tangible benefits to particularly helpful or prolific commentators. These incentives can include automatic expedited review of articles, off-cycle review of articles, membership on a Board of Advisors or similar honor, free subscriptions to the Wharton Law Review, or, budget permitting, a monetary incentive.

A second common critique concerns the faculty reviewers themselves. Some professors worried that the reviewers would give good reviews of their colleagues’ articles in a quid pro quo arrangement, and that these reviews would unduly influence the article selection process. This problem assumes that the editorial board of the Wharton Law Review would be unable to distinguish legitimate criticism from puffery. It is our belief that the editorial board is capable of making these judgments, as distinguishing a good argument from a bad one is what Articles Editors already do. It is an important part of the learning process, and Peer-Assist will simply create another avenue for that skill to be developed. Additionally, we presume that the editorial board of the Wharton Law Review will naturally give more weight to objective comments (e.g. “This argument is pre-empted by X paper,” or “The mathematics in this piece are flawed”) or well-reasoned subjective comments as opposed to comments offering unsupported praise or criticism.

A third and final common criticism of Peer-Assist is that the readers may not be sufficiently qualified to give informed commentary. Peer-Assist will open up the peer-review process to all academics, not just the pre-selected ones that populate traditional peer-reviewed journals. This does present a greater risk of relatively less-qualified commentators, but we believe that the market effects of the Peer-Assist system will outweigh the risk. It is also quite likely that readers will only comment on articles within their field of interest, whereas the current student-edited system relies on only a handful of third-year law students to critique articles in a wide array of fields. Informed commentary from a professor would be a good addition.

3. Localized Peer-Assist

Many of the potential problems of the full Peer-Assist system can be mitigated by adopting what we refer to as “Localized Peer-Assist.” Instead of granting access to all academics, Localized Peer-Assist would give access to the Peer-Assist database only to professors at Penn, and would allow those professors (or the editorial board of the Wharton Law Review) to nominate professors at other institutions. This would allow the network to grow organically, admitting only academics who are interested in spending time to review articles and who are deemed qualified by the editorial board. We also envision adding functionality to the system to allow any authorized reader to forward a given article to any other academic on an ad hoc basis. For example, if a Penn professor was reading a business article that included statistical analysis, that professor could forward the article to a colleague elsewhere with a technical background and ask him or her to ensure that the methods used were satisfactory.

Localized Peer-Assist solves the major potential problems with Peer-Assist. Reader quality is no longer an issue so long as the Wharton Law Review screens those outside of the Penn community who will be given access. A limited pool such as this also minimizes the potential for reviewer puffery. Lastly, the incentives devised for the complete Peer-Assist program still can be used for Localized Peer-Assist, with the additional hope that professors will be more inclined to participate when it is their own school’s journal requesting their assistance.

In light of the smaller pool of reviewers, it would be possible to restrict usage of Localized Peer-Assist until an article passes an initial screening by the editorial board, who would still retain the ability to make the final decision on publication. As in regular Peer-Assist, students and alumni also would retain access to the database. Localized Peer-Assist foregoes the market effects of full Peer-Assist, but eliminates many of the potential problems. In effect, it simply formalizes a faculty review system that some student-edited law reviews have already adopted, except on a larger scale.

4. Student Peer-Assist

Our third and final conception is what we call “Student Peer-Assist.” This consists of the same structure as regular Peer-Assist, only limited to the student members of the Wharton Law Review. Student Peer-Assist preserves all of the educational advantages of Peer-Assist with virtually no downside. All members of the Wharton Law Review, including associate editors, would have the ability to read and comment on all of the submitted articles, thus exposing them to a broad swath of current legal scholarship. Student Peer-Assist allows for the Wharton Law Review to give a significantly more substantive educational experience to its members, which we believe will be valued by the student editors themselves and by the law school administration. The editorial board also gets the benefit of dozens of additional people reading over articles before they are selected.

Student Peer-Assist adopts a system that has been adopted by a handful of other student-edited law journals, including notably the Harvard Law Review. We believe that Student Peer-Assist offers virtually no downside and has the potential to improve morale and involvement of associate editors on the Wharton Law Review, as well as provide a significant educational benefit to all members of the journal.

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You may wonder why I felt the need to discuss a proposal that died almost two years ago when it was rejected by Penn Law's administration. Well, upon reading TaxProf Blog today, it seems that Peer-Assist is not as dead as I thought. From a press release issued yesterday:

In a radically new interactive approach to legal scholarship, more than 100 leading scholars are debating the fundamental questions of modern criminal law through a law professor’s version of the TV show American Idol.

Professor Stephen P. Garvey of Cornell Law School, along with Paul Robinson of Pennsylvania Law School and Kimberly Ferzan, professor and associate dean at Rutgers School of Law-Camden, are the guiding professors in a 10-month online effort to create a new method of processing scholarship. In this new project, called Criminal Law Conversations, authors of the top-rated essays can defend their ideas against criticism from the judges, who are other law professors. The essays that receive too few votes get kicked off the stage, which in reality is the University of Pennsylvania Law School Web site, which hosts the Criminal Law Conversations project.

The selected essays will be included in an Oxford University Press book to be published next year.

“Too often opposing advocates talk past each other,” said Paul Robinson, lead editor of Criminal Law Conversations. “You could say that this brings peer review to legal scholarship but it’s more like peer-in-your-face.”

Robinson with co-editors Ferzan, and Stephen Garvey, are guiding professors in a 10-month online effort in which, so far, 120 scholars are participating. They are nominating several dozen scholarly works for discussion, based on the relevancy and compelling nature of the pieces. The author of a nominated work will produce a 4,000-word core text that summarizes his or her thesis, to which four to 10 scholars will then write 800-word criticisms. The original author will reply to the critiques, with these “conversations” making up the published book. ...

The response has been so positive, Oxford University Press is considering applying this model to other areas of the law and other fields of scholarship.

I can't say I'm surprised by the popularity of the Criminal Law Conversations project--the comments I received from 36 law professors at a wide variety of institutions in a diverse array of fields made it clear that Peer-Assist would be received well if implemented. Though I am obviously disappointed that my co-authors and I had not been given the opportunity to be the first to implement this system back in 2006, I wish Penn and Professor Robinson all the best with their endeavor, and hope that its success will incentivize the top law reviews (and the schools that support them) to implement a similar system and bring a close to the endless "student-edited vs. peer-reviewed law journals" debate.

Is Libertarian Paternalism Consistent with Parternalist Principles?

Thanks to Marc Randazza linking to my blog post from last month about whether libertarian paternalism is libertarian, I feel obligated to make the promised follow-up post on whether libertarian paternalism is consistent with paternalist values.

Unlike libertarians, paternalists do not place nearly as high a premium on true freedom of choice. This should not come as a surprise, since the very philosophy used to justify paternalist policies is that individuals often do not know what is best for themselves, and thus a more enlightened third party should take their choice away and make the "right" decision for them. Therefore, paternalists may not be concerned if employers, educational institutions, or other third parties coerce adults into self-binding programs for their own good.

But is the third party coercion that may result from a libertarian paternalist regime actually consistent with paternalist principles? One must look at the movies of these third parties to determine whether they are truly acting in a paternalist fashion. Liberty University, for instance, appears to have created its rules for a purpose other than helping adults make the right decisions, stating that it has instituted its honor code to "promote a positive Christian community," and one would expect this same rationale to apply if the state of Virginia created a self-binding tobacco criminalization regime and Liberty required its students to opt-in. Though Liberty University may ultimately force its students to make the "right" decision through its actions, one cannot say that Liberty is actually engaging in paternalism, for in such a scenario Liberty would be primarily furthering its own interests rather than those of its students.

Potential coercion in the employment setting, however, provides an even stronger example of how the practical effects of libertarian paternalism may be inconsistent with the ideals of paternalism. As the Georgia gun situation demonstrates, businesses, as profit-maximizing entities, will generally place profitability over ideology or other concerns when making business-related decisions. The Georgia businesses in question--many of whom sell guns in their stores, and whose owners may themselves believe in the right to bear arms--have not banned their employees from keeping guns in their parked cars because of anti-gun animus or a belief that they are helping their employees make the "right" decision, but because insurance companies charge significantly higher premiums when employers allow this practice. Likewise, insurance companies do not charge employers these higher rates out of animus or a desire to help businesses and their employees make "smart" choices, but because their research has shown that businesses that allow guns provide a greater risk than the general population of businesses and thus must pay higher premiums to ensure that the insurance company remains profitable.

In the gun case, as well as a hypothetical smoking or gambling self-binding program, employers and their insurers would coerce employees into certain decisions not because they are enlightened decision makers, but because their own self interests require it. Though employers and insurance companies acting in their own self interests may result in outcomes that overlap with the actual best interests of employees, the process is not consistent with paternalist ideology, which assumes a benevolent, enlightened third party whose primary objective is furthering the interest of those who, for whatever reason, are unable to make the best decisions for themselves. For this reason, libertarian paternalism is not consistent with paternalist values or ideals.

Is Libertarian Paternalism Libertarian?

As mentioned yesterday, Cass Sunstein is currently guest blogging on the topic of libertarian paternalism at the Volokh Conspiracy. In his introductory post, Professor Sunstein summarizes his idea as follows:

The basic idea is that private and public institutions might choose approaches that a) fully maintain freedom of choice (and are in that sense libertarian) but b) gently steer people's decisions in directions that will make their lives go better by their own lights (and are in that sense paternalistic).

The New York Times has even more succinctly summed up the concept as "[y]ou know what's best for you, and we'll help you do it," with the government adopting policies to "nudge [people] in the right direction." Perhaps the most high profile, and controversial, examples of this involve self-binding schemes such as those adopted in Michigan and Missouri, which allow individuals to voluntarily place themselves on casino gambling blacklists, with state governments then enforcing those voluntary bans by criminally prosecuting violators and confiscating their winnings. Proponents of the libertarian paternalist approach have advocated adopting such self-binding schemes to solve a wide range of other issues, including combating cigarette and alcohol consumption.

For a variety of reasons, I disagree with Professor Sunstein that libertarian paternalism--at least in the form of self-binding schemes--are viable vehicles to address these issues. This post, however, will focus on whether libertarian paternalism actually maintains freedom of choice or otherwise promotes libertarian values.

Libertarians such as Jacob Sullum and myself oppose governmental bans on smoking and other vices on philosophical grounds. As Sullum observes in his book, such bans are "an odious intrusion by the state into matters that should remain private." Essentially, Sullum and other libertarians believe that adults are well aware of the dangers involved in smoking, gambling, and similar activities, but "for the sake of pleasure, utility, or convenience" have chosen "to accept the risks."

Libertarian paternalism as formulated by Sunstein acknowledges the veracity of this perspective, and recognizes that the government should not eliminate an adult's freedom to engage in risky behavior, even when such choices may not result in what the government perceives as the ideal outcome. But do self-binding programs--for instance, a system that would allow an individual to place himself on a tobacco blacklist in perpetuity--truly preserve the libertarian value of freedom of choice? I argue that they do not.

Proponents of libertarian paternalism wrongly assume that government provides the only constraint on adult behavior, and thus an individual who opts-into a system where smoking, gambling, or other vices are criminalized has done so because his present-self wishes for the government to control his future-self by placing constraints on his behavior. But this framework fails to consider the role of powerful third parties--such as an individual's employer or educational institution--who often wield enough influence to coerce individuals to sign away their legal rights.

There is no doubt that these third parties already place significant limitations on an adult's legal rights in a number of contexts. Liberty University, for instance, considers use of tobacco products as a violation of its honor code, which can result in fine, reprimand, and--if enough reprimands are accumulated--suspension or even expulsion. In the employer context, the National Rifle Association and other advocacy groups have recently drawn attention to many large Georgia employers, such as Wal-Mart, that forbid their employees from keeping guns in their parked cars while at work.

Such limitations on legal rights by educational institutions and employers are not significantly obtrusive or reduce freedom of choice to a great extent. After all, a cigarette smoker does not have to enroll in Liberty University, and even if subjected to reprimand such an individual can transfer to another school, one where he would retain the right to use tobacco products off-campus. Similarly, an employee who runs awry of Wal-Mart's gun ban may seek employment elsewhere--and in the worst case scenario, at least has the opportunity to choose unemployment and keeping a gun in one's car over employment and leaving a gun at home.

But libertarian paternalism programs create a danger of those same third parties curtailing an individual's freedom in perpetuity. Liberty University, for instance, may require as a condition of enrollment that a student opt-into a system where possessing tobacco is illegal and subject to criminal prosecution, even long after a student has separated from the college. Perhaps more significantly, large groups of third parties, such as employers, may require such opt-ins as a condition of employment, thus forcing individuals to give up activities such as gambling forever if they wish to earn a living in a given state. In effect, employers, schools, and other third parties would outsource enforcement of their internal policies to the state--hardly a libertarian concept.

The faults with the libertarian paternalist philosophy are not limited to libertarian paternalism's fundamental tension with libertarian principles. In my next blog post, I will argue that libertarian paternalism is also not consistent with paternalist principles.

Sunstein Blogging on Libertarian Paternalism

Cass Sunstein is guest blogging about libertarian paternalism over on the Volokh Conspiracy. His first post can be found here. I will likely post some of my thoughts on the subject here later this week.

Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas

The current draft of my latest paper, titled Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas, is now available here at SSRN.

The AK47 Motion and Anonymous Internet Speech

Jill at Feministe has made a post about the motion to quash a subpoena directed at AT&T filed by pseudonymous defendant "AK47" in the AutoAdmit litigation (the motion is available here).

Jill makes a good point about the identification issue. I don't find AK47's "I was just talking generally about Jills... not that Jill" to be very persuasive.

What I do find persuasive is the argument that the claims themselves -- at least with regard to AK47 -- lack any legal foundation.

I have no sympathy for AK47. If I take off my "uphold and defend the constitution" hat, I too want to see him outed and roughed up. But I can't remove that hat. Therefore, while I want to see him outed, I don't want to see it happen this way.

Outing an anonymous speaker should be subject to a reasonable standard. The case law so far seems to be developing along just such a standard: Show that you have a real cause of action with some likelihood of success before unmasking someone, no matter how disgusting their speech may be.

In fact, this very issue reared its head on the Feministe blog in the past.

Naturally, Zuzu's speech is hardly to be compared to AK47's speech. The first is intelligent and informative, yet her reasons for wishing to remain anonymous are similar to AK47's.

She wishes to avoid harassment for her views, which are not quite mainstream. I think that she should be proud of what she's wirtten, but that is legally irrelevant.

The latter (AK47) is just a little boy who thought that he could wear a klan hood and that would keep his identity secret.

Nevertheless, when it comes to free speech, we have to turn off our taste buds. Yes, that is quite difficult when we are looking at speech that turns our stomachs. Of course, I see evidence that Jill agrees:

I do have sympathy of the argument that people shouldn’t be outed for making anonymous comments on the internet. And of course I believe that free speech rights apply anonymously online as strongly as they apply in “real” life. Identifying anonymous internet commenters can have a real chilling effect, and I don’t think that people deserve to be outed simply for saying things that others don’t like — even if those things are sexist or racist or offensive.

But back to the main point -- is the underlying suit meritorious enough to validate a request to unmask an anonymous speaker? With regard to AK47's speech, I think not. That doesn't mean that the plaintiffs don't have a right to gripe -- I just see zero legal support for their claims. There are lots of nasty, mean, and brutish things that people do to each other, which have no legal remedy. This is one of them.

If the court disagrees, so be it. Then AK47 should be legally unmasked. But based on both parties' filings, I'm just not persuaded that the claims have any legal validity.

So what should be done?

Should AK47 "get away with it?" No, I'm not advocating that. I say "go get him!"

A smarter way to handle this would be through private action. A few weeks ago, a lawyer offered a $15,000 bounty for the identity of the author of the Patent Troll Tracker blog. I saw no legal basis for that unmasking, but if someone wanted to rat him out for $15k, I saw nothing wrong with that either. FYI -- it worked.

Why doesn't Feministe offer a reward for the identities of some of the worst posters? The Feministe blog seems to have lots of fans, most of whom agree that at least some of these trolls should be outed. Pass the hat, create a reward fund, and watch AK47's friends turn on him. Then you can splash his name from one end of the Internet to the other, and let society (and future employers) judge him for his speech.

That method would

1. not create bad precedent that could cause unintended consequences,
2. preserve the First Amendment, and
3. be a lot more fun.

Wouldn't opponents of this sort of speech rather see a character like AK47 betrayed by a friend than pried from under his rock by a court? Even if one is not motivated by constitutional concerns, isn't that method just so much more poetically satisfying?

Should Jill take my suggestion, I pledge $100 to start the fund.

Do Law Reviews Matter?

So asks CONNtemplations, the Connecticut Law Review's online supplement, which has just posted some very interesting essays examining this question.

I will try to post some thoughts on these essays sometime in the coming weeks (bar prep permitting), particularly since a few authors have engaged some of my earlier arguments regarding law reviews and online supplements. In the meantime, you can access the essays here.

Hat tip: Prawfs.

The Digital Identity of University

Tomorrow afternoon I will facilitate the Digital Identify of University working group at Harvard Law School's Internet & Society conference. Here is the description of the working group:

With digital tools such as message boards, social networks, and search engines making University and its clients’ identities more public than ever, navigating the integrated media landscape for students and other members of University has become increasingly difficult. In a world where anonymous postings can have lasting effects on the professional and personal lives of students, and when University clients and their digital identities can be expressions of the University as a whole, this workshop will focus on how we begin to navigate this space and how we form the digital identity of University.

The panel is in Pound Hall 107 from 1:45 to 3:30PM. I will likely blog about some of the issues discussed sometime next week.

Student Publishing Opportunity in Penn Law Review

Topic: The Class Action Fairness Act of 2005
Deadline: September 15, 2007

PDF flyer available here.

Hat tip: Concurring Opinions.

Horowitz on Anonymous Internet Defamation

Steven J. Horowitz has uploaded a short essay, titled Defusing a Google Bomb, to SSRN. Here's the abstract:

Anonymous internet defamation is nothing new, but the recent Autoadmit controversy highlights one particularly difficult aspect of this problem: Google bombing. As private individuals are defamed on popular anonymous message boards, searches on Google and other engines return the defamatory posts as top hits for those individuals. This short essay suggests a notice and takedown solution modeled after the DMCA's similar provisions. I argue that such a solution is much more effective for the Google bomb problem than for copyright infringement because the parties involved are much more likely to have similar legal resources than in copyright disputes.

I can't say I fully agree with this proposal, or even the idea that we need legislation to deal with this problem. However, I think he's correctly identified the real problem here: the problem isn't the defamatory speech itself, but search engines, and I can't imagine that this problem will ever be resolved unless the role of search engines is acknowledged.

Virginia Tech News Coverage

Does an article like this serve any purpose other than to ruin someone's life?

Just as Predicted

Below is a screenshot of the top 10 Google search results for Adriana Dominguez, as of this evening (click for larger):


So, it looks like the New York Daily News has succeeded in its mission to ensure that "potential employers are sure to discover Dominguez's striptease with a quick Internet search."

O'Reilly: "Mechanism is better than policy"

It seems that Tim O'Reilly is backing away from his proposed blogger code of conduct:

So rather than a blogger's code of standards, perhaps what I ought to be calling for is moderation systems integrated with the major blogging platforms.

John at librarything wrote:

"One technical suggestion, employed by my employer: letting users flag inappropriate comments, which then become click-to-see. This lowers the visibility of the trolls, without censoring them. For an example, see this thread:

http://www.librarything.com/talktopic.php?topic=8702

Message 5 is no longer immediately visible, because it was flagged by a certain number of users as inappropriate. But it can still be seen, if you want to, by clicking on the 'show' link. It's a compromise, but perhaps a practical one.

Similarly, it might help the situation to let users configure whether or not they want to see flagged content, and set the default for flagged content to some sort of reduced visibility.

I really like this, as it addresses one of the biggest hesitations I personally have about deleting comments, namely that deleting part of a conversation can make it impossible to reconstruct what really went on. And there have also been problems in the past with blog owners selectively editing conversations to present themselves in the best possible light. A mechanism that preserves comments while hiding them "in the back room" so to speak would seem to me to be a really useful tool.

I'm in complete agreement with Tim, and have been a believer in this idea for a very long time. Unfortunately, it is unlikely that implementing this idea on a large scale will reduce criticism, as demonstrated by the continuing attacks on AutoAdmit despite that site having an off-topic filter that by default hides 99+% of offensive content.

More on Journalist Ethics and the New York Daily News

I recently received this email from Daily News reporter Veronika Belenkaya in response to my blog post about her story on the third year Brooklyn Law Student who appeared nude on the Playboy Channel:

I was aware of her boyfriend's involvement. But since at the time the article was going to print I did not have a 100% confirmation on his name or that he was in fact her boyfriend, we made a conscious choice to leave it out until we were sure.

Alright, fine. I think most people wouldn't fault a newspaper for choosing not to identify someone by name without confirming their actual involvement in an incident.

But then I saw this follow-up piece in Wednesday's Daily News. To their credit, the Daily News finally acknowledges the role of Adriana Dominguez's then-boyfriend, Sean Kalish, played in the video. However, the paper once again fails to identify Kalish as a third year Brooklyn law student or raise the possibility of potential character and fitness difficulties. Rather, the only purpose of unmasking Kalish appears to be to use him to attack Dominguez's judgment and question her moral character:

A Brooklyn law student who took it all off for Playboy TV has only herself to blame for the scandal, her ex-boyfriend told the Daily News yesterday.

Adriana Dominguez, who's in her final year at Brooklyn Law School, blabbed about her sexy exploits all around campus, said former flame Sean Kalish.

"She told everyone in school, 'This is what I did, watch this,'" said Kalish, 25, a fellow third-year student at the school.

"She even posted a link to it in her MySpace [online profile]," he said.

...

"She kind of thrives on this kind of drama," he said.

"I wish that Adriana had been a little more discreet about it," Kalish said.

One commenter to the previous post stated that the Daily News's "agenda is simply to sell as many papers as possible and that a news story about an attractive blonde law student appearing in Playboy is going to get more attention than one that talks about a guy in virtually the same situation." Even if this is the Daily News's only motive for running this story the way it did (and I'm not so certain that's the case), can one really argue that the Daily News reporter is engaging in ethical journalism, especially in light of this follow-up article?

My Problem with the Yale Law Journal

Given that some people have misunderstood my objection to the Yale Law Journal altering my Pocket Part essay, I thought I should follow-up on my previous post about this experience.

Some, including one of my co-bloggers, initially had the impression that this fuss was all about a link to AutoAdmit being deactivated in my author byline. Let me make one thing clear: I don't care about the link. I don't own AutoAdmit, I don't work there anymore, and I don't care how much traffic it gets, and if the Yale Law Journal had asked me for my input before taking unilateral action I would have not only requested that the link be removed, but the reference to AutoAdmit entirely. After all, isn't updating articles to correct information one of the purported benefits of electronic publication?

My problem is with the editorial note. Because of that note, which contains false and misleading information about me (as well as AutoAdmit). I simply cannot feel comfortable sending a link to my Pocket Part piece to anyone now. How is the note false and misleading? Three things come to mind:

1. Defamation has a very clear legal meaning and most (if not all) of the posts in question, while offensive and in bad taste, are not defamatory. "Stupid B---- to Attend Yale Law," for instance, is clearly an opinion and not a statement of fact. Furthermore, there is no evidence that the statements that could be construed as statements of fact, like the allegation that the girl in that thread has a 159 LSAT, are actually false. Given that Yale Law School admitted three students with 3.75+ GPAs and sub-160 LSATs last year, there is a possibility that the statement actually is true (and the only poeple who can prove it false--the girl, LSAC, Yale's dean of admissions--have not released the information).




2. AutoAdmit did not publish any of this information. In the absence of Section 230, AutoAdmit would likely be treated not as a publisher under the common law of defamation, but a distributor. After all, AutoAdmit itself did not author any of this content--unaffiliated third parties did--and AutoAdmit did not prescreen content before it was posted or advertise itself as a place that prescreens content. An individual reading that editorial note who is unfamiliar with AutoAdmit would conclude that AutoAdmit itself was authoring defamatory comments, which is simply not true.




3. But most importantly, because the editorial note is linked to from my Pocket Part essay, readers would be misled into thinking that I somehow had decision making authority over the AutoAdmit message board. This is simply not true. My title at AutoAdmit was Chief Education Director. I had that silly title for a reason--I was the administrator of AutoAdmit Studies. Jarret Cohen has always had sole decision making authority over the message board--in fact him retaining absolute control over the board was a provision of our partnership agreement. Believe me, if I had sole decision making authority over the message board, I would have done things differently.

To reiterate: my real problem here is altering my essay's page to include a link to that statement, and implying that I was in a position to do something about what they're condemning without subjecting myself to a potential lawsuit for breach of fiduciary duty, breach of contract, and other assorted causes of action. I wouldn't care if the Yale Law Journal condemned AutoAdmit elsewhere on its site--in fact, depending on how that condemnation statement was worded, I might have signed it myself!

Blogger Code of Ethics? How about a Journalist Code of Ethics first?

APRIL 13 UPDATE: See follow-up post here.


Yes, I know one already exists, though one would think otherwise given recent stories by supposedly legitimate media outlets. But how about actually enforcing journalist ethics in the news media before trying to force similar tenets on the blogosphere?

I have avoided blogging about the topic of media bias, largely because people would (rightly) question my own objectivity on that issue, given recent events. Though there is nothing more frustrating in the world than to see something in the newspaper that you are 100 percent certain is an absolute fabrication, it is almost as frustrating to see those same newspapers and other old media outlets attempt to sell themselves as objective and factually accurate while dismissing blogs and other new media as biased and full of errors.

Today, the New York Daily News ran a front page article about a third year Brooklyn Law School student who appeared nude on an episode of a Playboy Channel TV series that aired in January with little to no fanfare but attracted attention when a 45 second clip of the broadcast appeared on the internet three weeks ago and quickly "spread... among students and some faculty at almost every New York law school."

Before I comment any further I should make one thing clear: this law student certainly put herself in the public eye by voluntarily appearing on this television show. It is difficult to predict how the public will react to attention-seeking behavior--even people who engage in virtually identical attention-seeking acts may end up with widely divergent outcomes. Thus, it is difficult for me to sympathize with this law student when she says that she "did not expect it to become so widespread." While it may be unfortunate that the media chose to cover this story in such a way, the media (as well as anonymous internet users) certainly had the right to do so.

That said, certain aspects of the Daily News's coverage of this story do not sit well with me, and deserve further attention and discussion:


1) The Daily News did not report the news--it created it.

Did a law student appear nude on the Playboy Channel? Yes.

Did law students at her school see a video of her appearance? Yes.

Was her career ever in jeopardy? No.

Well, at least not until the Daily News got involved.

The Daily News reporter writes, among other things, that "potential employers are sure to discover Dominguez's striptease with a quick Internet search." But this is simply not true. Although Dominguez's video spread through email and was discussed on a few isolated message board threads, as of this writing none of those discussions appear in any Google searches for Adriana Dominguez (see for yourself). Given that she shares her name with a Spanish actress, a University of Texas lecturer, and an executive editor at HarperCollins, it is highly improbable that an employer googling her name would ever stumble upon this video. Similarly, it is unlikely that the New York bar's character and fitness examiners would have become aware of this incident through Google.

Until now. Though this law student had completely G-rated Google results prior to the story, in less than 12 hours the Daily News article has already shown up in Google as the 21st result for her name, and is likely to enter the top 10 relatively soon. In other words, the Daily News did not report on an existing controversy--it actually created a controversy when none existed prior to its involvement.

2) The Daily News ignores the OTHER third year Brooklyn Law School student who appeared on the Playboy Channel

But perhaps the most perplexing aspect of the Daily News's coverage of this "story" is its application of double standards. While the Daily News plasters Ms. Dominguez's photo on the front page of the newspaper and makes repeated references to her career as a lawyer being in jeopardy (including the possibility of not making it through character and fitness), the article fails to mention that, according to several sources, the male performer in the video is also a third year student at Brooklyn Law School. This individual is not a mere bystander--he has dialogue, and participates in the much-written about spanking scene (see here--note that while the link contains censored pictures and commentary, it is not safe for work).

Don't get me wrong: I do not believe that either of these students should be subject to increased scrutiny by the character and fitness committee, let alone have their law licenses denied as a basis of their participation in this video. But if the Daily News and other media outlets are going to place her photo on the front page, identify her by name, and speculate that the video "could have dire consequences for the would-be lawyer," result in "tough questions from the Committee on Character and Fitness," and potentially "wreck her future," should they not subject her male law student co-star to comparable scrutiny? Or do the Daily News and Brooklyn Law School believe that it is perfectly acceptable to appear in a pornographic video as long as you are a man?

3) What's the Daily News's agenda?

Make no mistake about it: there was an agenda here. Everything from the front page placement to the failure to mention the male law student indicates that we are not looking at an unbiased and neutral piece of journalism. Someone--whether the reporter or whoever contacted the reporter--wanted this article to run in the form it did, and unfortunately we have no way of knowing who that someone is or what that someone's motives are. I wish I could say this is an isolated incident, but having been the victim of similar hit pieces, as well as having friends who work at traditional media outlets, I suspect stories like this are the rule rather than the exception.


Are some bloggers biased or have a hidden agenda? Most certainly. Are many blogs factually inaccurate? Of course. Do some bloggers lack civility and use their blogs to ruin the reputations of others? You bet.

Does this make blogging worse than the traditional media? No: it's just that many bloggers will acknowledge all of the above, while the traditional media simply refuses to acknowledge that it suffers from these same problems.

As for a blogger code of ethics, I think we should pass for now, in the interests of regulatory parity--we can revisit that subject once the traditional media starts to take ethics seriously.

Cigarette Advertising and Web 2.0

Unlike other industries, cigarette firms have engaged in very little--if any--advertising on the internet. In fact, most cigarette manufacturers do not even have websites for their cigarette brands. The official Philip Morris website, for instance, explicitly states that "[i]t is not intended to market, advertise, promote or offer coupons for [its] cigarette brands." This is not surprising, since the Ciagrette Labeling and Advertising Act (15 U.S.C. § 1335) makes it "unlawful to advertise cigarettes... on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission," which includes the internet.

But then came YouTube:



Of course, it's unlikely that uploading a decades-old black and white cigarette commercial to YouTube will have any impact whatsoever on anyone's smoking behavior. But what about the following example of user-generated marketing:



Are such YouTube videos unlawful under the Cigarette Labeling and Advertising Act? If not, should the act be amended? Would the analysis change if a cigarette company offered these YouTube users gifts (such as an all-expense paid trip to the Marlboro Ranch) without explicitly requiring or encouraging the bloggers to promote their brand online (a la Microsoft's laptop giveaway to bloggers)?


I will address these issues in my essay Joe Camel Meets YouTube: Cigarette Advertising Regulations and User-Generated Marketing
(forthcoming in the University of Toledo Law Review), and potentially on this blog as well.

The Perils of Publishing in Online Law Reviews

APRIL 13 UPDATE: See follow-up post here.

(Alternate title: Why Author Agreements are Important)

Yesterday afternoon I discovered that the Yale Law Journal's Pocket Part altered an essay I published last year to include a link that refers readers to a webpage that contains false and misleading information about my former employer and me personally. This was done without my consent, and without even contacting me before a decision was made to get my input. I have been told that the Pocket Part did this due to pressure from certain individuals within the Yale Law School community who were upset about perceived inaction by my former business partner on issues that I had absolutely no control or authority over. My essay, which was about the impact blogs have on student scholarship, had absolutely nothing to do with this recent controversy except that it mentioned the position I held at the time in my author byline at the very end of the essay.

I have blogged about online supplements before (see here and here), as has at least one of my co-bloggers (see here). Though many have written about the drawbacks of law journals that are published exclusively online (such as the potential that the site hosting the law journal may one day simply disappear), I do not recall anyone seriously raising the possibility that a law journal may alter an article or the webpage hosting the article out of an animus against the author after publication--likely because no one would consider that a serious academic publication would actually engage in such behavior. Unfortunately, now that it has happened once, I expect it to happen again.

But it won't happen to me. I believe the arguments I make in my papers are important, and I want those papers to be read by the widest audience possible. However, as an author I simply cannot take the risk of publishing in an online journal when there is a very real possibility that some future board will alter my article itself or the webpage containing the article long after publication. Neither I nor any other author should be put in a position where we have to worry that one day we will not be able to refer people to a paper published in an online journal because the page now links to a page whose only purpose is to engage in character assassination and to damage one's professional reputation.

Based on this experience, from now on I will insist that my author agreement contains provisions that explicitly forbid my article or the webpage containing the article from being edited in any way without permission after publication. If an online journal refuses to include such a provision, I will not publish there. Since one never knows when one might end up on the wrong side of the news cycle (or just the wrong side of an Editor-in-Chief), I would encourage other authors considering online journals to take the same protective measures, if only for peace of mind.

I really wish this wasn't necessary since I know from firsthand experience that there are many great online journal editors who do not engage in these underhanded tactics and strive hard to try to get the same amount of respect as print journals. But unfortunately journal boards turn over every year, so there is absolutely no guarantee that future Editors-in-Chief will share the same views as the Editor-in-Chief one deals with during the submissions and editing process.

Law Professor Performs Palsgraf

Twenty Five Years of Student Scholarship in Judicial Opinions

Blake Rohrbacher, a Richards Layton & Finger associate, has uploaded a very interesting study on citations to student scholarship in judicial opinions. You can download it here.