Doug Berman of Sentencing Law & Policy Blog [LexBlog Q & A]

Doug Berman, professor at the Ohio State University Moritz College of Law, is today's LexBlog Q & A guest. Doug's Sentencing Law & Policy Blog is part of the Law Professor Blogs network. As early as 2004, the SL&P blog received national coverage in the Wall Street Journal after it was cited in testimony to the Senate Judiciary Committee and by New York's Second Circuit Court of Appeals.

Doug's latest project is Views From The Field, a blog designed to allow discourse between practitioners and academics in the criminal law world. Yesterday, the U.S. Court of Appeals for the Sixth Circuit cited a post from the blog authored by U.S. District Judge Richard G. Kopf.

1. Rob La Gatta: How did the idea for Views From The Field first develop?

Doug Berman: I’ve been blogging on my Sentencing Law & Policy Blog for a while, and have been inspired by the number of thoughtful practitioners who will say things in comments and through e-mails that give me really distinctive views on the federal sentencing world. Being involved with the Ohio State Journal of Criminal Law, I thought we ought to have an online supplement, one that avowedly focused on getting the perspective of thoughtful practitioners (rather than just providing opportunities for law professors to write smaller versions of longer ideas).

That was the model. I lucked out that there was a very capable student who had just joined the journal, who indicated an interest in getting involved in some new projects. He helped us run with it and put together a lot of the infrastructure. I’ve [also] been lucky - through my work on federal sentencing - to get to know a number of federal judges....I sent out an e-mail to a bunch of district judges and said "Hey, we’d like you to write for this." Fortunately, out of the 10 I wrote to, 4 not only wrote back, but actually wrote...and wrote really interesting stuff that, in a sense, comprised our first issue.

2. Rob La Gatta:
Do you believe blogs have played a positive role in how law professors teach/articulate their ideas and get their message across?

Doug Berman: Yes, absolutely...although I would say that blogging is a unique kind of media for expressing law professor ideas. I’ve been very fortunate to work in a field and to have kind of an A.D.D. attitude towards it that makes blogs a particularly useful way for me to get out a lot of smaller ideas. But I think for those who are interested in longer form idea development or other more traditional aspects of the scholarly conversation, blogs can be more challenging than beneficial. That’s where my big support for faculty blogging is based: a vision of the diversity of mediums that are valuable to get ideas out.

3. Rob La Gatta: I saw that for a death penalty course at the end of 2007, you were using a class blog. Was that successful, trying to incorporate a blog into the classroom? Were there any challenges?

Doug Berman: There are definitely challenges, in part because there isn’t the infrastructure for doing it easily. For a while, I was thinking about giving the students the password and having them blog directly, but for a variety of reasons I never quite got around to that; the comments sometimes got distracting; and because I try to maintain a lot of blogs, there were challenges with just keeping up.

But I very much believe in the blog medium as having - particularly at this stage - so many more upsides than downsides, that not only is it something that I’m eager to share with my students, but am eager to get them to experience the pros and cons of [as well].

4. Rob La Gatta: Do you think using a course blog is something you’ll do again in the future?

Doug Berman: I actually have a blog being used in one of the classes I’m teaching now, and I definitely will continue to gravitate towards integrating blogging with the course instruction, course development and project development. Basically, I’m so pro blog that my instinct is, “Hey, you’ve got an idea? Ok, good...why don’t you start a blog to work on that.” I think a lot of people I interact with get bored of hearing me talk about the opportunity that the blogs present.

There was a former prisoner, involved in a white collar offense who has gotten his life back in order, who wrote to me very nicely to say, “I really appreciate the work you’re doing...there are a lot of former offenders out here who are getting back on the straight and narrow, but there’s so much antipathy in various ways expressed to people who commit crimes, and such a misunderstanding of the opportunity for rehabilitation." And he asked, "What can I do to help with this?"

I said, "Well, you should start a rehabilitation blog, and have stories about people who have gotten their lives back together."  I’ve become kind of the hammer to that nail. Part of what has reinforced that is that I’ve heard feedback from many people who I’ve encouraged to go and blog, that they’ve been very happy with the experience. Nobody who I’ve encouraged to go blog who started blogging has come back to me and said, "You know, that was a terrible idea."

Obviously, people get engaged in the blogging enterprise in different ways...but to me, that’s the not only unique, but a uniquely valuable aspect of the medium: you can make it what you want to make it, and there are very few conventions, very few expectations, very few demands other than those that you put on yourself. That’s why I find the blog format so liberating. You get to make your own choices rather than have a set of expectations that you must live up to.

5. Rob La Gatta: How have you seen traditional law reviews adjusting to handle the growth of the blogosphere?

Doug Berman: These online supplements are a very direct acknowledgment of one thing that the blogs have contributed to the law professor universe: sometimes, law professors have things they want to say and can valuably say in 500 words rather than 500,000 words.

As a byproduct of a lot of forces, law reviews had a size creep, where the standard article grew and grew (partially because technology made it easier to print more pages), and it got to the point where the norm of a law review was so massive and time consuming that even very senior and established faculty, who could get traditional scholarship placed in all sorts of ways, saw the virtue of expressing themselves and doing work in a blog setting.

Then, (particularly younger) law students who are very tech savvy and who didn’t enjoy sitting in a dank library checking footnote #427, felt that they could use the law review stature and resources to become a more active participant in the online dialogue. That has been great, because among the other virtues of the blog and the blogosphere, there is very little true competition…there’s a lot of collaboration. If I see a law review that does a bunch of pieces about federal sentencing, I’m not going to say, “Oh, they’ve taken away from OSCJL Amici.” I’m going to say, "Did they cite us?  Great!" Then we can cite them, and link back. And then, the world just keeps on growing.

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Eric Goldman, professor at Santa Clara University School of Law [LexBlog Q & A, part 2 of 2]

It's Friday afternoon, and before the LexBlog Q & A takes its weekend recess, we've got to wrap up what we started yesterday: our interview with Santa Clara University School of Law professor Eric Goldman. (Before you continue, make sure to get up to speed by reading part 1).

Yesterday's post saw Eric talking about his initial exposure to blogs; today, the discussion wraps up with his take on how law professors view the blogosphere - and how they expect it to grow in the future.

1. Rob La Gatta: When speaking to other law professors around the country, have you gotten a sense of the general attitude toward blogs held by law profs? Do you think that, as is the case with lawyers, law professors are becoming more and more willing to venture into the blogosphere?

Eric Goldman: I think many law professors are aware of blogs now. Frankly, blogs are almost impossible to avoid in our community, especially blogs that discuss and gossip about the law professor business like Brian Leiter's Law School Reports, PrawfsBlawg, and Concurring Opinion. Given the prominence of these blogs catering to the specific informational needs of law professors, plus the rich content being generated by niche-y substantive legal blogs, I suspect that many professors now read at least one blog regularly.

Several hundred law professors are now affiliated as a co-blogger at one or more blogs, and I anticipate that number will continue to increase over time (but I'd be remiss if I didn't note the speculation that legal blogging has reached a plateau).

Eventually, in the next few years, it wouldn't surprise me if most law professors are affiliated with at least one blog, though many new bloggers will probably join existing blogs rather than start their own. I also expect blogging to follow a typical 80/20 rule, where 20% of the law professor bloggers will be responsible for 80% of the blogging. So many law professors will be bloggers in name only.

2. Rob La Gatta: Ultimately, where do you see blogs taking legal scholarship in the future? In 2008, what do you think will be some of the most significant developments to shape this medium, specifically with regards to legal publishing?

Eric Goldman:
The law professor community is actively wrestling with (and perhaps obsessing over) these questions. At the most recent law professor annual conference (AALS in NYC), several panels broached this topic, and the topic arises perennially at that conference. Everyone wants to know the answer to these questions, but there do not appear to be easy and obvious answers.

Personally, I think blogs are an excellent complement to legal scholarship. As I mentioned, they expand our options to disseminate our ideas, and there are many bloggable ideas (what Eugene Volokh has labeled "micro-discoveries") that would not be worth publishing through other options.

I think the issue gets more complicated when discussing whether blogging can substitute for other types of scholarship. I could see blogging count as a partial substitute for some scholarship, but only a bit. In the end, I expect a law professor helping to shape the discourse will want to develop lengthy, complex and heavily sourced expositions for which blogging isn't the best communication choice.

From a technology standpoint, I think we are just at the beginning of exploring how to use online synchronous and asynchronous communications (using blogs or otherwise) to advance the scholarly dialogue. Some interesting early examples include:

I'm excited to see how else we as academics can engage each other in productive conversations using new technologies.

Interested in hearing more? Recent LexBlog Q & A posts:

Or, see our full list of legal blog interviews.

Eric Goldman, professor at Santa Clara University School of Law [LexBlog Q & A, part 1 of 2]

Another two part LexBlog Q & A begins today, as we offer up part one of our e-mail interview with Eric Goldman.

Eric is a professor at Santa Clara University School of Law who focuses his teachings on legal issues surrounding technology. He writes two blogs - Goldman's Observations Blog and the Tech & Marketing Blog - and is well-known among law professors around the country for his active role in the blogosphere.

1. Rob La Gatta: When did you first start blogging, and what prompted you to do so?

Eric Goldman: I started blogging about 3 years ago, in February 2005. In Fall 2004, two particularly net-savvy students in my Cyberlaw course repeatedly encouraged me to blog, and they promised to regularly read my blog. Thus, I figured I would start with 3 readers — these two students, plus my mom.

Ironically, I don't think my mom has ever read my blog, and I'm not sure if my two students (who have since graduated and become lawyers) still do. Fortunately, in the interim, I've added some new readers.

2. Rob La Gatta: How do you think you've grown, both professionally and personally, as a result of your experience monitoring, reading and writing blogs?

Eric Goldman: Blogging has changed my life in a number of ways.

First, it has forced me to efficiently organize my data in-flows, which has made me a better researcher and a more informed community member. Not only do I have a carefully selected roster of RSS feeds that I monitor constantly, but I have set up alert systems in various databases that help me identify important new developments. If it wasn't for blogging, I would not have taken these steps.

Second, I like writing, and blogging has given me an outlet for my works. I was always writing before blogging — I wrote op-eds, articles for bar journals, even consumer reviews at Epinions — but I never had a natural home for my written work until I launched my blog. Now, I can write whenever I want and publish my works without having to seek out a publisher.

Third, blogging has definitely elevated my profile, especially among journalists. I remember that when I first became a law professor, I rarely got reporter calls. So when there would be a new development in my area of expertise, I would sit in my office thinking, "Hey reporters, call me, I have brilliant thoughts about this!" But the phone rang only occasionally.

In 2005, when I launched my blog, my media appearances roughly tripled from 2004. In 2007, my media appearances roughly tripled from 2005, meaning I'm now getting about 9x the number of reporter calls I got in 2004. Spending this much time with reporters creates other challenges, but it’s a good problem to have.

Finally, I've made some fantastic friends through blogging. There's an inherent kinship among bloggers, so I immediately became part of a special club just by blogging. Further, I frequently cross paths (both physically and virtually) with like-minded bloggers, which has allowed me to befriend some really interesting and nice people.

3. Rob La Gatta: Do you believe blogs have played a positive role in how law professors teach and articulate their ideas? Can blogging have any serious impact on a law professor's reputation?

Eric Goldman: Blogs are one of many channels that law professors can use to communicate their ideas. This makes blogs a useful new publication option; they allow us to join (or start) a dialogue quickly and informally, and to establish ongoing communications with an audience of non-academic readers. But blogs aren’t our only option for publishing, and we always still have to decide the best dissemination medium for what we want to say.

Blogging definitely can affect law professors' reputations. Typically, it has a significant positive effect, but as with any publication, there is always a downside risk. Fortunately, the blogging community is pretty fault-tolerant; an occasional mistake or misstatement by an otherwise credible blogger will not be fatal to the blogger's reputation. Even so, I always remain keenly aware of the effect that blogging could have on my reputation, especially as a pre-tenure faculty member.

Interested in hearing more? Recent LexBlog Q & A posts:

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Legal blogs as scholarship : Views from Canada

Ottawa's Michel-Adrien Shepard shares a story from Lawyers Weekly on Canadian law scholars view of legal blogs being scholarly works.

  • University of Calgary law school dean Alastair Lucas sees blogs as scholarship. The law school is creating a blog dealing with Alberta courts and tribunals and those contributions 'will require theory development, synthesis, analysis and clear argumentation (...) We also expect that some blog pieces will be expanded into law review articles and the like. Strictly, these are not peer reviewed, in the law journal sense, but they will be reviewed and edited in the faculty under the supervision of senior faculty members.'
  • Philip Bryden, dean of law at the University of New Brunswick: Blogs offer 'timely publication and ease of accessibility', but adds, 'During my tenure as dean ... none of my colleagues has brought their blogging activity into the scholarly assessment process at UNB, but that is not to say it will not happen in the future.'
  • Bruce Archibald, a law professor at Dalhousie University in Halifax: Blogs 'are a source of ideas which would have to be acknowledged in a footnote if quoted. On the other hand, they are not peer reviewed and would not have the added cachet or weight of that status.'

Shepard goes on to reference a series of posts he's written on the subject.

Traditional legal scholars may resist the trend of legal blogs being viewed as legal scholarship, but the train has left the station on this one.

Just because a practicing lawyer or law professor writes to the net as opposed to a word document then published to law review does not by necessity make the piece one lacking value as legal scholarship. And the chilling effect of wide dissemination with immediate critique and comment from peer law professors and practicing lawyers is certainly the equal of a law review article reviewed by law students.

Sure, there are blogs published by lawyers that don't rise to the level of legal scholarship, but let's not throw the baby out with the bath water on this one.

Could publishing blog stifle a law professor's career?

Gosh, I would hope not but that's the jist of a couple posts I just read.

Carolyn Elefant picked up on University of Texas Law Professor Brian Leiter's post that blogs may hinder a law professor's professional prospects. Leiter writes:

Because blogs are easily accessible and thus easier to read in a spare moment than, say, a scholarly article or scholarly book, blogs that purport to treat scholarly topics are far more likely to solidify an impression of a professor's mind and overwhelm the merits of his or her actual publications (assuming the two have different merits).  This is why, it seems to me, it is particularly risky for either students or junior faculty to blog much:  the first, and perhaps dominant, impression of this person's work is likely to be defined by the blog, whether fairly or not.  If you're going to blog on scholarly topics, it had better be good!

Shocking as it sounded that we should insulate law professors and practicing lawyers from each further, I read more of Leiter's post to find that Law Professors were telling other scholars to go slow on blogs. Daniel Drezner, an associate professor of law at Tufts University and blogger himself, had some alarming things to say about blogs.

When I was an assistant professor at the University of Chicago, a senior colleague once told me his secret to academic success: One bad article equals five great ones. His point was that the worst thing a scholar can do is to publish too much, as opposed to too little. Any substandard publication creates a black mark that is difficult to erase.
.....

Blogs and prestigious university appointments do not mix terribly well. That is because top departments are profoundly risk-averse when it comes to senior hires. In some ways, that caution is sensible — hiring a senior professor is the equivalent of signing a baseball player to a lifetime contract without any ability to release or trade him. In such a situation, even small doubts about an individual become magnified.

The trouble with blogs is that they seem designed to provoke easy doubts. Blogs are an outlet for unexpurgated, unreviewed, and occasionally unprofessional musings. What makes them worth reading can also make them prone to error. Any honest scholar-blogger — myself included — could acknowledge a post or two that they would like to have back. At a place like Yale, one bad blog post can erase a lot of good will very quickly.

.....
Today's senior faculty members look at blogs the way a previous generation of academics looked at television — as a guilty, tawdry pleasure that should not be talked about in respectable circles. (Leitner pointed out that fellow professors did read his blog though)
.....

But Leiter's conclusion, where he first says in a perfect world law blogs would be ignored in the hiring process, gives me hope.

...[P]erhaps university committees should consciously factor in the positives — quality blogs allow scholars to link grand theory to real-world events, cultivate new ideas, and spark public debates — that come from scholar blogging.

Based on the panel discussion at Stanford Law School last week, we're closer to law faculty looking at the positives than Leiter thinks. Santa Clara Law Professor Eric Goldman and University of Illinois Law Professor Lawrence Solum found tremndous reputation enhancement through publishing a law blog. Solum found the benefits of publishing a blog far outweighed the benefits of publishing law review articles. There was little doubt in Solum's mind that law blogs were disintermeditating law reviews.

In addition to reputation enhancement for law professors, blogs open up the lines of communication between the practicing bar and academia in a way never before possible. Wisconsin lawyer Anne Reed, cited by Elefant, posts:

...[A]s far as I can tell [...] blogging has changed the way lawyers and professors talk to each other. Practitioners hear from professors daily, not when the quarterly review comes out. Professors hear from practitioners, instead of just each other. And whenever either side posts, the other side chimes in with comments. It's a discussion.

So much to be gained by law professors blogging. Let's hope the small minded folks don't prevail on this one.

Blogging scholarships for law students

Is your blog worthy of a $10,000 Scholarship? Do you maintain a blog and attend college? Would you like $10,000 to help pay for books, tuition, or other living costs? If so, read this.

Picked that up from the Editor at Blawg Review ('Ed'), who rightfully asked 'should scholarships be offered for writing law blogs?'

Ed spotted an opportunity to answer with the discussion surrounding the single best idea you'd offer newly appointed Dean Erwin Chemerinsky for reforming legal education as he builds the law school at UC-Irvine.

[I]f anyone had asked this writer, I'd have recommended that the Donald Bren School of Law be the first law school to offer a scholarship for exemplary legal blogging.

If not Dean Chemerinsky, which law school dean is going to have the foresight and clout to pull it off. When every law school offers law blogging scholarships, some law school is going to be able to say we were first. Why not your law school?

Law reviews and legal scholarship continue move to blogosphere

Bill Gratsch's post reminds me I forgot to mention the well researched article in ALM's Legal Times that the future of legal scholarship may headed to the blogosphere.

Margaret Schilt interviewed a number of blogging law professors, read law reviews which have portions published in blog format and opened with this statement:

If you are looking for the future of legal scholarship, chances are that you may find it not in a treatise or the traditional law review but in a different form, profoundly influenced by the blogosphere.

The big reason:

Blogging contributes to the shortened life cycle of a theory or idea, reflected in what is called the open access movement. Law review articles no longer meet their readers first in published and printed form.

Traditionalists may not appreciate the quality control the blogsophere offers.

Quality control in the blogosphere resides in the occasionally naive assumption that good ideas will rise to the surface and less fully theorized ones will eventually disappear. The relentless pace of blogging assists with the disappearance aspect; flawed or uninteresting ideas will be exposed and then ignored while the blogosphere moves on.

The theory is that good ideas will survive and be strengthened by the immediate feedback. The process is not infallible, though, and the people making the judgments are not all scholars. The law review could offer peer review by professional scholars rather than second- and third-year law students, enhancing the recognition and reputational value of print publication. Anyone can post on a blog; only peer-reviewed scholarship would achieve publication in a law review.

Schilt is hedging her bet with cautionary words such as 'occasionally naive assumption' and 'the theory.' My guess is after she spoke with leading professors and spent time reviewing law reviews in blog format she sees legal scholarship going to the blogosphere.

In addition to scholarship, UCLA law professor Stephen Bainbridge picked up on the public service aspect of academic law blogs. "Instead of scholars focusing inward, writing for and expecting to be read only by other academics, legal academics blog with the desire and the expectation that they will be read by the public."

No question that law professors and practicing lawyers are networking more because of blogs. Their blogs are referencing each others' posts, they're commenting on each others' blogs, and blogs published by academic are being cited in legal briefs and court opinions.

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Lawyer and law professor blog content is peer reviewed

Law blog skeptics often argue that law blog content is dangerous because unlike legal articles, law reviews and treatises, a blog post is not peer reviewed. Bunk.

A blog post via the power of RSS is peer reviewed with more immediacy by knowledgeable authorities than print copy. In addition, the motivation for a blog author not to put out flawed copy is far greater. Who wants to be called out for being a 'dumb ass' on blogs and news sites across the net? Blogs citing your stupidity indexed at Google forever. How fun can it be to Google your name and see links to citing your mistakes?

Great example of this has been living itself this week with Robert Scoble's flawed attack on Google, SEO, and search engines in general. Knowledgeable and well respected people came down on him like a ton of bricks. It's all over the blogosphere. There's no question that the reputation of Scoble, someone held in high regard by a lot of folks for his Microsoft and Podtech blog work, took a major hit.

Dave Winer, discussing the Scoble situation, puts it succinctly, 'We fact check your ass.

  1. There are many of us. 
  2. We care about the truth. 
  3. We use colorful language.

As Winer says, 'this leads to a bunch of good blogger behavior.'

Law school blogs : Tons of potential

I follow law school blogs when I get a chance. Part of that comes from my passion to make the world a better place - something I always believed began with kids in colleges and universities.

I'll admit when I got to law school 28 years ago this month, more students were focused on BMW's than advancements in the law for the betterment of society. But my guess is that there were a number of fellow students like me who didn't wear their romanticism on their sleeves.

So I'm still looking for that idealism in law student blogs - to help keep this old guy's passion burning and to make the world a better place over the next 50 years. And truth be told, to recruit to LexBlog a law student or two who sees the potential of blogs and citizen journalism.

Looking to find good law school blogs? Illinois lawyer, Evan Schaeffer, helps publish The Weekly Law School Roundup. It's at #83 this week. Evan also includes in his blogroll at Legal Underground a list entitled 'Law Students--Aspiring, Current, or Just Finished.'

Also, via Evan, found a law student blogger directory kept current by an anonymous University of Michigan law student. Last updated August 7, there's 404 law student blogs from 118 law schools - not counting the unknowns, as noted.

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Law reviews taking online blog presence

Ken Strutin, an experienced law librarian, criminal defense attorney, and well-known writer and speaker, has published a nice piece at LLRX regarding law reviews taking an online blog or 'blog like' presence.

Common themes for why law schools are creating an online presence for their law reviews include:

  • Immediate reporting and commentary for recent changes in the law.
  • Critique and commentary from academics, practitioners, and law students.
  • Short form articles from scholars, practitioners, and students not included in law reviews.
  • Making the law review more relevant with the legal blogosphere. (love this one)

Here's a list of what Ken found on the law review front (let me know of more):

  • CONNtemplations, Connecticut Law Review. Features pieces from a number of authors on topics related to the relevance and future of legal periodicals.
  • Environmental Law Online, Lewis & Clark Law School's Environmental Law. Selected articles and essays from print journal, web-only articles, and an archive of 9th Circuit case reviews.
  • First Impressions, Michigan Law Review. Features op-ed length articles by academics and practitioners in order to fill the gap between the blogosphere and the traditional law review article so as to provide a forum for quicker dissemination of the legal community's first impressions of recent changes in the law.
  • Harvard International Law Journal Online. Web-based component of the Harvard International Law Journal, publishing brief, focused articles on a variety of international law topics.
  • Harvard Law Review Forum. Online extension of our printed pages that is intended to allow for a more robust scholarly discussion of our Articles.
  • iBlawg, Duke Law and Technology Review. Interactive environment dedicated to publishing brief commentary and facilitating an online discussion about published articles.
  • Ideas, Hofstra University Law Review. Vehicle for short pieces from the academy and from prominent members of the bench of interest to scholars and practitioners.
  • In Brief,Virginia Law Review. Short essays and responses by law professors, judges, practicing lawyers, scholars from other disciplines, and current law students.
  • Journal of the Business Law Society, University of Illinois College of Law. Weblog technology is utilized to allow students, faculty, and professionals to interact online through legal writing and scholarship; providing a unique complement to traditional law reviews. The purpose is to to provide our readers with information on recent developments affecting business law.
  • Northwestern Colloquy, Northwestern University Law Review. Features legal commentary written in the form of blog posts allowing scholars to publish their thoughts within days of an emerging legal development.
  • PENNumbra, University of Pennsylvania Law Review. Seeks to engage a broader audience in legal scholarship by serving as a link between legal academia and the 'blogosphere.'
  • See Also, Texas Law Review. Online companion to the Texas Law Review that presents responses and critiques of recently published articles in the Review in order to promote further discussion of the topics addressed in the Review.
  • Slip Opinions, Washington University Law Review. Online supplement featuring original commentary and debate by members of the legal academy, bench and bar.
  • TexSupp, Baylor Law Review. Insightful legal literature including essays, book reviews, responses and letters to the editor.
  • Yale Journal Pocket Part, Yale Law Journal. As publications often contain "pocket part" supplements with up-to-date information, the Pocket Part plays an analogous role by augmenting the scholarship printed in The Yale Law Journal.

Thanks to Michel-Adrien Sheppard for the heads up on Ken's piece.

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