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Monday, August 11, 2008

Boycotts at the Retail Level: Of Casebook Selection and Ideology

As a footnote to the AALS boycott debate, note this comment from Professor Anita Bernstein on the Legal Ethics Forum:

For those who teach in law school, slightly O/T: When you are choosing casebooks for your courses, do you take into account the ideology of the editors, bearing in mind that you're sending revenue their way? When I mentioned this penchant of mine, a sales rep for one of the Big Three told me that as far as she can tell, only women share it.

I find this comment fascinating.  I assume that Prof. Bernstein is not simply suggesting that, when considering casebooks, she keeps in mind whether or not she disagrees with the regnant ideology of the casebook itself; I assume she means that she also considers whether or not she wants to subsidize individuals whose ideologies she disagrees with, somewhat (although I assume far from completely) separately from any consideration of whether she likes the casebook itself.  (She's welcome to correct me if she wishes.  I make this assumption because I take it as a given that one can refuse to select a casebook one dislikes on substantive or pedagogical grounds, and her comment seems to suggest more than that to me.)

Do others share this approach?  Do you think her slim anecdotal suggestion that such activity is more prevalent among women is accurate, and if so why?  And while I assume that an academic has the raw power to make such a decision, is it a sound academic decision?  I assume that such a decision entails no necessary drop-off in quality if one selects an alternate casebook, so that students do not suffer for it; but is it, as it were, an action that is ultra vires our role as academics?

As my writing on the boycott itself suggests, I respectfully disagree with the idea that one should refuse to select a casebook on the basis that one doesn't want to enrich someone with what one considers a disagreeable ideology, although I suppose every such principle has its "can't-help" limits.  I also worry that it is a short logical step down the slippery slope from such a decision to the view that one should approach faculty hiring or promotion decisions in the same spirit; that kind of thing has occurred in the past and likely still does.  But I am less interested in airing my own views than in sounding out what others do and think, and whether you think Prof. Bernstein's brief observation that women academics are more likely to do so is accurate and why.  Comment away. 

Posted by Paul Horwitz on August 11, 2008 at 12:49 PM in Paul Horwitz | Permalink


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Tracked on Aug 24, 2008 11:56:47 PM


nice post

Posted by: John Petrucci | Dec 31, 2008 2:45:54 AM


Thanks for taking me to the woodshed so gently.

Sarah does make an excellent point. To add to it -- it seems that if you publish, then you have a platform from which to respond once you detect criticism. In fact, being criticized for one's ideas is actually a recognition that they are at least worth that many pixels and words. Being criticized for being overly prickish in a comment carries no such pride though. :)

In other words, when I find my personal blog postings criticized, I'm happy. I'm happy that I have started a discussion. That is the whole point.

Posted by: Marc J. Randazza | Aug 13, 2008 11:58:02 AM

That said (and I do apologize for my tone), I'll re-post with greater civility.

Of course it isn't "bullying."

You post, someone comments to praise or criticize, readers decide. That is the marketplace of ideas at work.

To attempt to re-define this kind of discourse as "bullying" is a sign that the re-definer lacks confidence in his or her ideas, not that there is some kind of pernicious disease that needs to be cured. If you publish your ideas, there is an implication that you have invited both praise and criticism.

Adding a step to slow down the process by requiring or requesting that the criticized author be part of the process is counter productive, silly, and unnecessary.

That said, any time I have criticized someone and they have asked for a forum in which to reply or defend themselves, I have always granted it. While there might be a time and place where I would not, I can not envision such a scenario.

It is important to note that this is the kind of thing that brings about valid criticism of academia. The term "bullying" is hot right now... and trying to redefine the term to encompass valid criticism is irresponsible and worthy of ridicule. I find it hyper-hypocritical that the notion comes from an author who has demonstrated very little civility in tolerating ideas counter to her own.

Posted by: Marc J. Randazza | Aug 13, 2008 11:52:07 AM

Thanks Marc.
On the merits of what's bullying, I found this comment by "Sarah" on the thread over at Prettier than Napolean very interesting:


Sarah writes:
The use of the word "bullying" is also quite odd. Presumably the objection here to lack of notice is that the original poster doesn't know about the response and can't respond. But surely you can't be bullied unawares; bullying depends on the victim being conscious of being subjected to the threat of force. The only potential bullying would come from the original poster's feeling criticized, and that would come into play however the original poster learned of the criticism. In fact, depending on the circumstances, my sending you a personal email saying "I'm about to call you a total waste of space in my blog in response to your post on Snape's eating habits" might actually intensify your feelings of being under assault.

And yes, I realize that, on Ann's logic, I am now a bully by lifting a comment by another person on another blog post without giving notice and comment. But have pity on me: there was no email address attached to Sarah's comment!

Posted by: Dan Markel | Aug 13, 2008 11:43:24 AM

Point taken. My tone was overly harsh.

Posted by: Marc J. Randazza | Aug 13, 2008 11:31:14 AM

Marc, your views are tolerated but not your tone. Please be mindful if you intend to post here in the future.

In any event, as the local school-marm here, I will keep in mind one of the choice passages from a link Ann provided:

You May Be The Bully: Have you thought about how your blog’s opinions, your blogging voice, how you respond in comments, or how you comment on other blogs could be interpreted as bullying? Maybe you might be the blog bully? It’s hard to play nice-nice all the time, and sometimes we let our emotions move faster than our brains. Never forget that once it is on the web, it’s there forever - well, almost forever. It’s really hard to take it back. Think first, type second.

Posted by: Dan Markel | Aug 13, 2008 9:49:49 AM

Of course it isn't "bullying."

You post, someone comments to praise or criticize, readers decide. That is the marketplace of ideas at work.

Only a moron who has nothing but rotten tripe to sell in the marketplace of ideas needs to take a negative term like "bullying," and then re-define it to protect her inability to bring anything worth buying to the marketplace of ideas.

Naturally, that is classic academic liberalism at its core... so don't expect the notion to go away anytime soon. In fact, it will likely catch on. I can see it now, coming to the Journal of Victim Crisis Studies: NOTE: Criticizing someone's ideas hurts their self-esteem, therefore, criticism is a hate crime.

Posted by: Marc J. Randazza | Aug 13, 2008 9:31:15 AM

The thread about letting people know they are being discussed on a blog is interesting but strikes me as very odd. Am I the only person who uses so many vanity alerts that I quickly know whenever my (admittedly common) name appears on a blog...? Eric.

Posted by: Eric Goldman | Aug 12, 2008 11:51:21 PM

I'm left agreeing with D.M., and am basically left puzzled and wanting to hear from people who agree w/Ann that posting about people without letting them know might feel like bullying (which, I think, is the basic argument). Because this is off-topic, a bit, I've opened up a thread at CoOp, without naming any of you, (including you, Anon 12:45:00!), where people can take this discussion if they care too.


On the merits, Paul has it right - the practice smells the same (but is certainly less bad, though about as common) as ideologically-determined hiring.

Posted by: dave hoffman | Aug 12, 2008 8:14:56 PM

Also, I'm now embroiled in a large number of e-mail conversations about this thread with people who want to discuss this issue with me, but emphatically NOT HERE. I don't have all day to devote to this, so I'm out.

Posted by: Ann Bartow | Aug 12, 2008 2:06:25 PM

Ann, I apologize for the inconvenience--I'm not the moderator of this thread, but when I just looked on typepad, it doesn't indicate that there's a message waiting for any approval. We don't moderate comments ex ante and I didn't see it in the spam filter. In any event, please send it to me again if you don't mind and I will ensure it gets posted. Thanks.

Posted by: Dan | Aug 12, 2008 1:57:52 PM

Dan, I wrote a comment that addressed some of this, but you have not allowed it through moderation.

Posted by: Ann Bartow | Aug 12, 2008 1:50:20 PM

I'd like to avoid having anyone cast aspersions on people's motives such as "intentionally mis-stating."

To pick up Anon's question, let me note that Ann earlier wrote: "Posting somebody's personally identifiable comment from another blog without giving them notice and opportunity to respond is viewed by me and many acquaintances as a form of bullying". Not speaking for others, I wonder who else believes that and why? None of your links that I read make that clear. Your comment at 544pm would make some sense to me if the new post was critical of the prior comment, but the mere fact of reporting that X said Y or that X is to be praised for saying Y should not count, I think, as bullying. You said earlier that if I didn't think fairness required this notice and comment, "suit yourself", but that's not really responsive unless it's supposed to signal a concession that it's not really "bullying." Since I or others here don't want to be bullies, (though given 27 comments of back and forth, we might be perceived to be) it would help if you could clarify one last time for the thick among us if you are retracting the claim that failing to inform in all or some cases constitutes bullying or ... it does not but might nonetheless be unfair in some cases. I'd also be curious whether you think this norm operates or should operate only among academicians or more generally among journalists, regular folks.

Posted by: Dan | Aug 12, 2008 1:38:58 PM

Also, you are intentionally misstating the content of my comments here, yet again. See my comment at Aug 11, 2008 5:44:34 PM

Posted by: Ann Bartow | Aug 12, 2008 1:09:30 PM

One of the comments that did not post yet (supposedly it will be "reviewed by the moderator") addressed this already.

Posted by: Ann Bartow | Aug 12, 2008 1:06:05 PM

Ann, I've just gone through most of the links you've appended. Perhaps you can point out which one(s) in particular support your claim that there's a norm or even a view shared by more than 2 people that bullying occurs when someone blogs about someone's comment after failing to give that commenter notice and opportunity to comment prior to posting? I think most of us can recognize garden-variety "bullying" in the academy or outside of it. But this earlier claim of yours doesn't seem supported by the links you're providing. And I'm afraid the variety of links without specificity will just distract people from the issue on the table that you have placed there.

Posted by: Anon | Aug 12, 2008 12:45:00 PM





Posted by: Ann Bartow | Aug 12, 2008 12:29:40 PM





Posted by: Ann Bartow | Aug 12, 2008 12:21:32 PM

Thanks for the link, Ann. I've scrolled through the posts, as well as the comments to that NYT article, and certainly agree that lots of people have suffered from bullying in academia--and don't disagree that there's a strong gender element to this.

I just don't see how Paul's post could possibly have qualified. It's so . . . nice. It isn't dismissive, demeaning, disrespectful, or rude in the slightest. How could his mere failure (if he had failed, which he didn't) to inform Anita of his intent to post constitute bullying, particularly given that Anita would surely have heard about the post in any case? And how does this square with how we talk amongst ourselves in the real world?

Posted by: Hillel Y. Levin | Aug 12, 2008 12:13:02 PM

Above is only one link of a number I tried to post, let me see if I can get these through:



Posted by: Ann Bartow | Aug 12, 2008 12:12:00 PM

Oops, our comments crossed paths. Thanks Ann. Much appreciated.

Posted by: Dan Markel | Aug 12, 2008 11:58:27 AM

Ann, if you send along those links to me via email, I'll be happy to post them. Thanks. And fwiw, I still wonder if you think fairness requires notice and comment even for purely neutral reporting or praise in order to avoid the charge of bullying. As you can see a few of us don't "get it" but are genuinely curious about why.

Posted by: Dan Markel | Aug 12, 2008 11:56:59 AM

For anyone who is interested, there is a series of posts about academic bullying here:


Posted by: Ann Bartow | Aug 12, 2008 11:56:21 AM

Clarification: In my opening paragraph above, I did not mean to imply that Paul's post was impolite or substantively self-defeating. I meant that if he hadn't discussed with Anita in advance, at WORST he could be accused of being mildly impolite, or his post substantively self-defeating. The question is how THAT (failure to inform, particularly given the tone and content of the post) would possibly constitute bullying.

Posted by: Hillel Y. Levin | Aug 12, 2008 11:26:10 AM

I'm just a bit confused as to the use of the term "bullying" here. When I was a kid, I thought that bullying meant something like intimidating or strong-arming others, showing them who is boss--something like that. Paul's post was obviously intended in the spirit of honest debate. Even if there's implied or overt disagreement there, nothing about the post is unkind or mean. What could possibly be "bullying" about this? Mildly impolite, maybe. Substantively self-defeating, perhaps (because it could deprive Paul of Anita's thoughtful reply). But bullying? How?

It is also worth noting that ours is a very small universe. Whether Paul informed Anita of the post in advance, she would no doubt find out about it and have an opportunity to respond.

I also don't really understand how this maps onto the real world. In the real world, if X says something that sounds interesting or strange to me at a conference (an idea about teaching, scholarship, whatever), when I get back to my home school, I may well pursue the point with colleagues. Do I need to inform X? Is it bullying if I don't? I see the "life of the law schools" posts on blawgs as an expanded version of the faculty lounge or (more likely) the hallway, and I would think that similar norms--hopefully civility, but not necessarily a need to tell someone that her comments are being discussed by others--prevail. Yeesh, I'm not sure I'd even want to live in a world in which every time people said something about an opinion I had shared, I was informed.

Finally, as I understand it, trackbacks were first introduced by movable type to facilitate conversations between blogs and as a way of giving props to the original person who presents an idea. I don't really think that it was an anti-bullying measure.

I've probably made more of this than I need to, but this thread does raise some interesting questions about norms in our community. One thing I like about prawfs and most other blawgs is that while debates are sometimes spirited, the prevailing norm is that they are undertaken civilly and honestly. So long as that norm prevails, I could do with fewer injunctions about how, specifically, authors ought to behave.

Posted by: Hillel Y. Levin | Aug 12, 2008 11:19:03 AM

I think the underlying issue of selecting casebooks on the basis of refusing to subsidize people you disagree with ideologically is the most interesting (and, of course, central) aspect of my post, and I hope people (including Ann!) will continue to add their thoughtful comments on this aspect of the post. Note that my post assumes that students will not suffer qualitatively if a professor selects another book: I assume that is true in Prof. Bernstein's case, and Ann makes quite explicit that it is true in her case. So the question is, even if students won't suffer, is it the kind of thing academics ought to be doing? As I said, my general view is no, although I'm sure an appropriately extreme case could test my resolve. My greater concern, although neither Prof. Bernstein nor Prof. Bartow have given any indication this is true of them, is that it is a fairly short step from this to ideologically based hiring and promotion and tenure. The other aspect of the original comment I continue to find interesting is whether it is more likely that women academics will do this than men, and why. I think Ann's example of choosing an equally strong (if not stronger) casebook in part because it will help to advance the career of some women, or show support for people she thinks are strong academics (but I take it their gender is at least somewhat relevant to her choice), is similar to but perhaps different from doing so on ideological grounds. And I wonder whether I wouldn't be more inclined to select a strong casebook where I think it would help advance the career of promising young people or non-top-15 people. Even so, I wonder whether this kind of selection can be characterized as one made on academic grounds, and if not whether we should resist the temptation to do so.

On the "netiquette" point, first let me say that the conversation about it, if off-topic, has been impressively civil, for which I'm grateful. Four quick points to reiterate what I said above. First, note that Prof. Bernstein herself said to me that she thought that posts and comments are fair game for republication and commentary elsewhere on the blogosphere. That doesn't mean she's right, but I happen to think she is. Second, that is is fair game doesn't mean there isn't room to be more polite and careful. That's what I tried to do because I think it's good manners; moreover, I think it is one way of trying to ensure that blog conversation is about the issues rather than about clashes of personality, misunderstandings, and so on. I wouldn't call the failure to do so bullying, but I would call the willingness to at least let someone know you will be commenting or have just commented on them a show of good faith and civility. That's especially so with comments, particularly where you're uncertain (as I was in this case) whether the name matches the actual identity of the writer. Third, I suspect there are some limits to this. If you're sure of the identity of the poster, if they are an active participant in the blogosphere, if they're evidently engaging in a debate in which there are lots of participants, and in some other circumstances, I think advance or contemporaneous notice, even if nice, is not necessary, and a failure to provide it is not a failure of "netiquette." But I'm happy to hear what people think; these are, after all, emerging norms, and we create them as we debate them.

Finally, in the usual bid for self-promotion, those interested in these issues might check out my piece "Or of the [Blog]," which is available at my SSRN page. I argue there that although blogs should partake of the "freedom of the press," the legal norms that evolve in and around the blogosphere should be just that -- evolutionary -- and should take into account the different structures that exist for the print and internet "press." While newspapers typically have several layers of fact-correction through editors, corrections, etc., blog self-correction often comes precisely through the interlink of commentary by other bloggers. That means legal norms concerning libel and other legal remedies ought to be responsive to that fact; and, to my mind, it means that good bloggers ought to be active in linking to original sources and to the blogs and commenters they are themselves commenting on. It may also mean that, where it seems appropriate, it would be valuable for them to alert the person they are commenting on, so that the process of dialogue is given some opportunity to occur. Again, if the person being commented on is an active participant in the blogosphere and might be expected to know that conversation will take place elsewhere on the blogosphere, that fact may itself substitute for any need to let them know in advance of the post.

Posted by: Paul Horwitz | Aug 12, 2008 11:08:58 AM

Also: I tried to post some links but that comment would not publish, I guess because it looks like spam to your comments software.

Posted by: Ann Bartow | Aug 12, 2008 10:44:38 AM

Dan, I did "see fit" to introduce the issue myself in my initial comment, because I thought it would have been unfair to Anita if she didn't have notice that her comment, made at another blog, was being discussed here, and I'm glad Paul gave her same. If you don't think fairness required this, suit yourself.

Posted by: Ann Bartow | Aug 12, 2008 10:27:59 AM

Ann, what if someone here at Prawfs wrote a post saying, "The other day I saw a very subtle and shrewd insight made by Ann Bartow over at Con-Op in the comments. Here's what she wrote. yadayada. I think everyone should get on board with what Ann is urging."

The comment you've hypothetically made still serves as the lynch pin for the new post but it's completely florid in its praise for you.
It seems to me that if I did that without letting you know I was doing that and that constitutes "bullying," words have lost their meaning. Yes,all things considered, it would be nice and perhaps proper to do the opportunity to respond thing for something critical, but is that really necessary even in the case of praise or merely neutral reporting?

The reason this issue is worth some diversion from the topic of Paul's post is that you saw fit to introduce this issue yourself in your initial comment and it raises important questions about norms that are in flux re: the etiquette of blogging. If you say there are others who hold this view that even un-communicated praise can be bullying, I'd like to see some evidence of that before abiding by a norm that is taking me and apparently some others by surprise. Were any of the discussions you had on-line so you can drop some links to them?

Posted by: Dan Markel | Aug 12, 2008 10:00:49 AM

Dave, if you took a comment I made here, where I know I made the comment and can watch the conversation and continue to participate in it as I choose, and put it up at another law prof blog as the lynch pin for an entire post, without giving me any notice, I would consider that bullying. And I'm confident that many people share this view (although there may be somewhat of a gender divide) because it's been the topic of fairly extensive discussions I've participated in.

If track backs don't work at Con Ops, you can keep track of external links through your Sitemeter or use Statcounter or Technorati. In fact, Concurring Opinions has a link at the bottom of the right hand column that says "blogs that link here." All you have to do is click on it to see them. You're welcome.

Posted by: Ann Bartow | Aug 12, 2008 9:04:17 AM

1. Re Christian's thoughtful post above. I'd like to add another category. The issue is not just whether a boycott is ok as a personal consumption choice (sure), or as a part of life in an academic institution (maybe), but whether a person who is paid to teach, and who is supposed to be acting in best interests of his/her students, should choose class materials with an eye on providing financial support to authors supporting the professor's political agenda. If you want to spend your own money on politically-motivated consumption, good for you. But don't force your students to do the same under the guise of buying teaching materials. To me, this is clearly unethical.

2. Re Ann's "bullying" comment. The issue is not whether one "should" give a warning before commenting on another blogger's post, but whether the failure to do so is "bullying," as Ann announced. The word "bullying" has powerful legal implications, which immediately put the accused in the defensive position. Announcing an innocuous behavior to be "bullying" is, well, a form of true bullying -- the use of intimidating language to force another person into your own preferred form of behavior. I am waiting for Ann to announce that my refusal to submit to her bullying is itself bullying.

Posted by: another anon | Aug 12, 2008 4:55:51 AM

To be fair to "anon", Ann, I think that your comment invited a response. I agree with you that folks who don't comment under their own names don't necessarily merit engagement, although I didn't think that Anon's comment spoiled for a fight, but rather pressed a legitimate point.

Unlike Dan M., I don't feel a need to send scholarship of mine that criticizes published articles of others to them - I do so often, to improve the arguments and make sure I've gotten the point right, but I wouldn't feel that doing otherwise was illegitimate. Similarly, if I were to take your comment and put it up on Concurring Opinions, I'd be really surprised to be seen as bullying you there. It is that word that sticks in my craw a bit. Sure, it's a bit discourteous to talk about people behind their backs (so to speak) in the real world, but online this kind of speech is common, and I don't see how it can be seen as bullying. People who write under their own names on the web expect that they've lost control over their use, and (I think) in most cases understand that criticism may come in many forms, in many venues.

(Your point about distinguishing posts from comments doesn't wash for me, largely because CoOp's trackback function hasn't worked, at all, for three years, and many folks, including you, have commented on our posts without prior warning, and I've only once been given warning before a post was quoted and criticized in a law review.)

On the merits, I'm basically in agreement with Paul's post, and pass along an anecdote. When I picked a contract casebook, I was told by a senior colleague that it would be crazy to use Randy Barnett's book, because he was so "extreme." (I doubt that s/he had read Randy's extremely well-edited book, that is as free from editorial intervention as any I've seen).

Posted by: dave hoffman | Aug 11, 2008 11:52:48 PM

Anon, it *is* off topic, here is my final effort: If you copy someone's comment, made under their real name, into a post at another blog, you should give them notice, in my view, so they are aware of it, and can respond if they want to. (Bloggers get a head's up via software that tracks links, but commenters do not.) I'm not interested in saying more than this, which I think is pretty clear. Especially to an "anon" who is rather transparently spoiling for a fight.

Orin, I switched books because the four authors of my current Copyright Law are all smart women I consider friends. My previous book was written by five smart men I like personally as well. I admit there was something about using a book by women authors that appealed to me. But I wouldn't have switched if I didn't think the book was at least as good as the previous book, and in fact I like it a bit better, particularly the chapters on "Acquiring, Keeping, and Transferring Copyright," and federal preemption, which bring a unique clarity to somewhat tricky subject matter.

Posted by: Ann Bartow | Aug 11, 2008 5:44:34 PM

This is a bit off topic Paul but Ann's claim warrants further exploration. She writes, "Posting somebody's personally identifiable comment from another blog without giving them notice and opportunity to respond is viewed by me and many acquaintances as a form of bullying, and I'm glad you aren't engaging in it here."

I know some prawfs here have advocated that prior to blogging or printing a critique of someone else's scholarship, there are good ethical and prudential bases for showing that person the comments for an opportunity to respond. But I can't for the life of me see how the failure to do so in the context of someone's public blog post or comment on a blog post works a form of "bullying." Ann, will you or someone else do us the favor of enlightening us with specific examples of what would be wrong and why?

Posted by: Anon | Aug 11, 2008 5:11:20 PM

I think there are two questions lurking here. (1) Is it desirable for people to consider the ideological aims of counterparties in transactions, even when those aims are not strictly relevant to the transaction? (More generally: To what extent is it a bad thing for people to make decisions concerning impersonal transactions based on things that are objectively irrelevant to the transaction itself?) They may do so because any utility to their political adversaries is a disutility to them - even if the utility is only money in the pocket. Or, arguably more understandably, because they don't want to advance adversaries' aims either by giving them more money with which to do so or by appearing to advertise some support for them as individuals. But imagine if everyone made market decisions based on ideology all of the time. I'm fairly certain I'd hate living in a world of permanent and ubiquitous boycotts. (Think of the very vague ideological identification of Costco and WalMart shoppers more starkly expressed and scattered over the entire economy.) Not to mention that the truly important boycotts would likely lose their sting.

(2) Are decisions to use the work of another in academics any different, and how so? Is ideology of the author more strictly relevant when adopting a casebook than is the ideology of counterparties in other market transactions? I suppose it might be, but only if the book itself advances it. But if that's the case, then the decision not to adopt is based on the content of the book rather than the ideology of its author. Or, alternately, is the academic enterprise even more obviously injured than the marketplace in general when participants use ideology as a transaction criterion? I tend to think this is the case.

One more point - the close connection of the legal academy to the levers of power (some might laugh at this, but it tends to be lawyers and not, say, mathematicians or russian lit scholars that attain government positions in which ideology is translated into policy) make it seem as though more is at stake in the academic discourse. If one would protest pernicious government policies, then it doesn't seem too far a jump, though perhaps an impermissible one, to shun academics who advocate it. This close connection between academic discourse and political results drives the intuition that legal academic discourse can sometimes have serious consequences. It also, I think, argues for an even more active commitment to academic freedom in law than in other disciplines.

Posted by: Christian Turner | Aug 11, 2008 4:10:00 PM


When you say you switched in part because of "who the authors are," do you mean because you know and like the authors personality, or because of their gender, or because of something else? "All of the above" is also a choice -- just interested in what you meant.


Posted by: Orin Kerr | Aug 11, 2008 3:34:21 PM

Sounds like you did far more than circumstances required, which is great. Posting somebody's personally identifiable comment from another blog without giving them notice and opportunity to respond is viewed by me and many acquaintances as a form of bullying, and I'm glad you aren't engaging in it here.

As far as the substance of your post, things are a little trickier. I teach Intellectual Property courses, and all the texts I use have multiple authors who have disparate views of at least some aspects of IP law. And, the ideological splits in IP law are different than they are in other contexts - obnoxious self promotion moment, I recently wrote about that here:


I did switch from one perfectly good Copyright Law book written by a group of men to one I liked even better written by a group of women (that would be this book: http://www.coolcopyright.com/ ) in part because of who the authors are, but I wouldn't have if it wasn't a great text.

Whether one gender is more socially active and socially conscious than another generally has been the subject of a fair amount of research in other disciplines, fwiw.

Posted by: Ann Bartow | Aug 11, 2008 3:19:14 PM

Ann, I appreciate the suggestion. Rest assured that before posting, I contacted Prof. Bernstein to 1) confirm that it was indeed her posting (I didn't want to simply assume it was because her name was attached to it), 2) let her know I was interested in posting about the comment and something of the tenor of my post, and 3) seek her permission to do so and to use her name. Her very kind response indicated that she believes comments posted in the blogosphere are fair game for comment elsewhere, and I think she is right about that; this doesn't obviate the value of undertaking step number 1, but it does suggest that she didn't believe steps 2 or 3 were strictly necessary. But I meant the post in a spirit of friendly and open inquiry, not hostility, although I indicated in my post (and to her) that I tend to disagree with the approach her comment suggested; I certainly wanted it to be about the subject of the post and not the personalities involved. And so, out of politeness and an abundance of caution, I contacted her well before posting and let her know when I would be posting. I trust that satisfies your perfectly valid concerns -- and would love to hear what you think about the questions raised in the post itself. Best, Paul

Posted by: Paul Horwitz | Aug 11, 2008 2:18:33 PM

Paul, if you haven't already, I think that out of fairness you need to make Anita Bernstein aware that you are over here, using her name and soliciting comments about a comment she made at another blog. I know she is one of the bloggers at the Legal Ethics Forum but it wasn't her post that you linked to, so there is no reason to believe she has seen a track back that would point her here.

Posted by: Ann Bartow | Aug 11, 2008 1:57:23 PM

Interesting. I have heard of choosing casebooks to avoid an excessive ideological clash between author and professor: If the professor looks at the field one way, it may be too jarring to students to use a text that has a very different take. (It might not, as there are benefits to teaching against the book, but I have at least heard this.) But the idea of picking course materials based on a wish to help fund people who share one's ideological views is new to me. It's hard to imagine why women would adopt this view more than men. Maybe the "personal is political" notion is more widely embraced among feminists who are more likely to be women than men, such that the choice of who should receive $$$ for casebooks becomes a political choice? I don't know.

Posted by: Orin Kerr | Aug 11, 2008 1:38:12 PM

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