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Developing a Comment Culture:
In the last few days, Balkinization and Above the Law have introduced new comment policies. Balkinization is mostly turning comments off, in light of the fact that its comment threads were pretty much unreadable: Above the Law is hiding them a bit and taking a somewhat more aggressive approach to moderation. Over at CoOp, Dan Solove comments:
It seems to me that different blog commenting cultures arise on different blogs. I bet that the readership for Balkinization and Concurring Opinions overlaps quite a bit, yet I have noticed that the comments at Balkinization are much as Jack describes them [that is, nasty and nonsubstantive]. Why have commenting cultures developed so differently at different blogs? I don't really know the answer, and it would be interesting to figure out why commenting cultures develop in the ways that they do.
  I suspect the explanation rests largely on the different moderation practices at different blogs. If a blogger doesn't moderate comment threads at all on a widely read blog, people who want to be shocking, mean, or just irrelevant realize they can do their thing and reach a decent-sized audience. They eventually push out the more thoughtful people: You end up with a mess, or, as Brian Leiter would put it, a "cess pool." In contrast, if bloggers moderate their threads reasonably well, deleting irrelevant or abusive comments — and in some cases, participating in the comment threads themselves to carry on the debate — then you end up with a shift in culture over time. Readers begin to expect that the comment threads will be reasonably good, or at least entertaining, and more thoughtful people consider commenting themselves.

  Over time, comment moderation practices end up having a profound impact on who comments, and different approaches either attract thoughtful commenters or keep them away. I think this explains the largely unreadable comment threads at Balkinization, for example; My sense is that Balkinization threads were lightly edited if not unedited altogether, with the bloggers themselves generally not participating in comment threads.

Related Posts (on one page):

  1. Comments Off:
  2. Developing a Comment Culture:
  3. Commenting About Commenting:
Math_Mage (mail) (www):
Well, it's not surprising that two blogs with overlapping readership could differ widely in the overall quality of the comment culture. It would be more interesting, and better justify the speculation above, if the quality of the overlapping commenters (the ones on both blogs) varied by blog. For example: "Joe Smith feels free to troll and be generally obnoxious on blog x, with an unmoderated comment thread; but on blog y, which moderates comments, he is generally more civil.". That would indicate to me that a blog's commenting policy can seriously alter the readers' perception of the comment culture.
1.29.2009 2:59am
Kevin Jon Heller:
Orin,

I have to ask, given that it's the elephant in the room: what do you, as one of the relative moderates on VC, think of your own comment culture? My politics are obviously different than most of the VC contributors, but as a regular reader I find your comment section far uglier -- and much more unreadable -- than Balkinization's. I'd be curious to hear your thoughts.
1.29.2009 3:07am
OrinKerr:
Kevin,

I mostly read my own comment threads, and only read the comment threads of other bloggers on occasion. But I think my own comment threads are relatively good: We get a wide range of opinion on most issues, and the level of contribution is pretty high for a site anyone can join.

Incidentally, I'm curious about what you mean when you say that a comment section is "ugly". Does that mean someone says something that you passionately disagree with, or does that mean that someone says something mean or insulting, or does that mean that it is barely in English? Or perhaps some combo of these? When I say a comment thread is unreadable, I generally mean it is filled with invective and/or not in complete sentences.
1.29.2009 3:12am
OrinKerr:
Kevin,

I should also point to Jack Balkin's own description of the Balkinization comment section:
[T]he comments sections are populated by regular trolls and many threads have turned into little more than name-calling. There is very rarely any serious analysis; mostly there is point scoring and vitriol.
That, in my view, is what makes a thread ugly and unreadable.
1.29.2009 3:16am
Jack Black (mail):
The problem with Balkinization is that although its bloggers are scholarly and brilliant, they are also incredibly liberal and often nasty toward public officials. This attracts extremist left-winger commenters with no scholarly credentials and maximal dimwittedness to revile conservative or centrist public officials or policies in nasty terms. That nastiness attracts right-wing idiots to defend any assertion of authority or public order, whether logic or prudence demands it, in somewhat less nasty terms, so that they may demonstrate the civilizing influence of conservatism and expose the barbarian lurking beneath the cosmopolitan veneer of every card-carrying member of the ACLU. In other words, Balkinization is balkanized because of Jack Balkin's style.

ConcurringOpinions and PrawfsBlawg both give greater voice to a diversity of opinions (sometime featuring conservative bloggers), pitch themselves primarily to academics, and their posts are substantive/academic rather than political/topical. Likewise for Opinio Juris.

Scotusblog ended its comments awhile ago because idiots started to hijack the threads and the high quality commenters (from Linda Greenhouse to practitioners of the Supreme Court bar to law students) were scared away by the nutbags. But Scotusblog erred. There should be public criticism of amicus briefs like this one, which was leaked to Scotusblog for propaganda purposes and, despite the names of the professors who drafted it, is airy, tendentious, and nary more than a press release/advert for the books these academics already have in print. They have Souter's vote guaranteed and the requisite appeals to Justice Kennedy abound, but that barely makes their motives non-frivolous.
1.29.2009 3:16am
Daryl Herbert (www):
The first 50 comments are the most important. Moderate the heck out of those, and then (for the most part) ignore the rest.
1.29.2009 3:22am
OrinKerr:
Jack Black,

Yeah, I had noticed that amicus brief: I was thinking of writing a post on it, myself.
1.29.2009 3:26am
Jack Black (mail):
Please do.
1.29.2009 3:27am
LM (mail):
I agree with Orin's response to Kevin. In fact, I wonder if this post isn't directed, at least in part, to some of his co-bloggers.

I think there's a range of commenting cultures here which confirms Orin's suspicion about how they develop. He's the most pro-active moderator, and his threads are the most civil. EV's the next most pro-active, and his threads, while a little more unruly than Orin's, are better than the rest. DB attracts a raucous audience, but he participates in the discussions as much as much as any of his co-bloggers, so he could tame things considerably if he was ever willing to chasten a commenter who agrees with him (something Orin and EV never hesitate to do). JL's and DP's politics posts are out of control, and totally out of control, respectively, reflecting their inattention, and total inattention, to what goes on in their threads. The others fall variously along that spectrum.
1.29.2009 3:42am
TruePath (mail) (www):
I doubt moderation matters as much as you think it does. Even sites with non-existant or rare moderation develop particular discussion cultures.

Really though I don't think there is anything here to explain. We are no less human when we comment on blogs than when we hang out with friends or join organizations. You might have one set of friends with whom you never let 5 minutes go by without a swear and some offensive remark. With another group of friends you might swear occasionally but even though no one objects or minds you just fall into a non-swearing sort of mode.

Often there are good reasons for these differences in interaction style but equally often there are not. Evolution makes us want to belong and reach a shared set of norms and behaviors with the rest of the group but what sort of behavior we settle on is often just random. The reason you always trade insults with your friend Andy but give Dave compliments may be simply because you first met Andy over an accidental disparaging remark that was then turned into humor. You might have long 1 on 1 conversations with your friend Alice but always hang out with Beth in large groups because Beth owned a PS2 in college so there were always lots of people hanging out while you got to know Alice in grad school in a 1 on 1 setting.

Similarly with blogs totally random factors like what the first popular post was and how casual the page layout looks determine what the initial commenting is like and very quickly a sense of what is and isn't appropriate for that forum develops.

In short once you have enough people commenting that you worry about the question it's already too late. Sure, moderation is important to keep away trolls and spam which, if unchecked, could drive away the good commenters but it's not going to turn around something like Balkanization. The people commenting there already expecting everyong else to be nasty and make non-substantial rhetorical points so they respond in kind and only the sort of people interested in that kind of partisan venting even bother to comment.
1.29.2009 3:48am
jim47:
I recall that when I used to read the comments section at Balkinization, there seemed to be about 3 or 4 regular who utterly dominated the comments section with their ongoing fights. You could count on each of them to give either 0 or 1 productive comments and then 4 or 5 yelling at each other. I thought it really demonstrated the ability of just a handful of people to dramatically affect the community if left unchecked.
1.29.2009 3:53am
None (mail):
I haven't researched the issue for a while, but I remember cases where a very active approach to comment moderation could generate liability for the site operator. I.e., by removing many comments but leaving some defamatory ones, the site operator had in effect endorsed the defamatory comment.
1.29.2009 4:05am
TruePath (mail) (www):
Just to clarify my above comment I think the biggest determiner of comment culture is the type and tone of the posts but once you fix this it's largely about inertia, expectations and evolved norms.

@Kevin Jon Heller

Orin,

I have to ask, given that it's the elephant in the room: what do you, as one of the relative moderates on VC, think of your own comment culture? My politics are obviously different than most of the VC contributors, but as a regular reader I find your comment section far uglier -- and much more unreadable -- than Balkinization's. I'd be curious to hear your thoughts.


First of all VC actually has several overlapping but slightly different commenting cultures since different conspirators tend to attract different sorts of readers to their posts. Some VC threads are pretty bad in the sense that they get pretty heated and people get offended but in the overall scheme of things that's actually an indication of health. After all if all the commenters are of one mind or you are a conservative visiting the daily-cos or a liberal visiting some crazed religious right blog you aren't going to take anything personally. When things get a bit nasty hear on the VC it reflects the fact that many commenters here expect a degree of civility.

But what makes a site worth reading is that you also have a decent fraction of actually thoughtful comments rather than short statements of support or total rejection.
1.29.2009 4:07am
LM (mail):

We are no less human when we comment on blogs than when we hang out with friends or join organizations.

I couldn't disagree more. There's any number of reasons* people feel allowed or compelled to behave worse online, and none to behave better.

[* anonymity, more perceived "otherness" from absence of personal audio/visual cues, safety from physical reprisals, to name a few]
1.29.2009 4:13am
Ricardo (mail):
Different bloggers at VC attract different kinds of commenters. The more political and partisan the post is, for instance, the lower quality the comments tend to be. I admit I've been reading VC using the following URL for quite a while and have noticed an increase in the quality of comments that I do read. Bernstein does sometimes have interesting things to say so I haven't included him -- yet:

http://www.volokh.com/?exclude=jim,davidk
1.29.2009 5:43am
ctw (mail):
"I should also point to Jack Balkin's own description of the Balkinization comment section"

IMO, Prof Balkin's description was (for whatever reasons) somewhat inaccurate. There are many fewer commenters there than here, and the primary problem is that one of those would comment on essentially every post, often first, and almost always adversely. This would precipitate a flurry of rebuttals, typically with invective, thus immediately drowning the comment section in (per Prof Leiter) "cess".

However, if one means by "troll" a commenter who is vacuous, vitriolic, or vulgar, I don't think the epithet applies. From a lay perspective, comments by this individual appeared to be substantive (though judging from the responses, often - if not mostly - incorrect). However, those in response to posts with political valence were invariably right-partisan - typically to the point of hackery - which tweaked some left-partisan readers.

I recently suggested that the individual be banned (notwithstanding that IMO the main fault was failure of the tweaked to simply ignore the tweaker) and am sorry that instead Prof Balkin chose the extreme of "banning" everyone.

There was a time not so long ago when I considered that on average, comments there were much more substantive than here, consistent with my observation that in general comment quality is inverse to commenter quantity. Amazing the damage one person can do.

- Charles
1.29.2009 6:18am
Vermando (mail) (www):
I've always liked the way Professor Kerr handles his comments, especially in how he engages those who make subtle but important logical or substantive errors.

The only one I don't like on this is Professor Bernstein, as I find that he tends to goad those who disagree with him on. The result is predictable, and then he acts offended by it, also predictable.

The only consistent problem I have seen on other VC threads is, indeed, that certain regulars will jump in and try to steer the discussion their direction usually, as Professor Balkin describes, resulting in a flame war with their usual enemies. This was much worse, though, during the election, a happy consequence of whose end is that the comments section here has become much more thoughtful and tame.

Just my 2 cents.
1.29.2009 6:24am
Jack Black (mail):
Yes, Charles. It is all Bart DePalma's fault.
1.29.2009 6:25am
Brett Bellmore:

Yes, Charles. It is all Bart DePalma's fault.


Darn, and I thought he might be referring to me. ;)

In a sense Bart and I, with some help from one or two others less often, are responsible for the nature of the Balkinization comment threads... In the sense that, without us, they'd be peaceful orgies of mutual left-wing self congratulation.

It seems to me that institutions, (Universities come to mind...) comment threads included, can pass a "tipping point" where they're sufficiently dominated by one partisan viewpoint that those partisans no longer feel the need to engage the other side, and resort instead to efforts to drive the other side out.

VC comment threads seem to be more civil, because they're not so close to that tipping point.

"(notwithstanding that IMO the main fault was failure of the tweaked to simply ignore the tweaker)"

They couldn't just respond substantively? The "tweaking" generally consists of substantive points raised civilly, after all.
1.29.2009 6:49am
TCO:
Orin:

1. In thinking about this question, it would be useful to consider community dynamics on forums for relevant insights as well as to think about similarities/differences from blogs to forums. I think some dynamics good and bad that happen in blog comments are more easily understood by looking at forums first. Also, that blog authors tend to have a bit of a blind spot for what motivates a lot of commenters, tend to over-rate the importance of the head post, etc.

2. Here is a picture of me:

http://redwing.hutman.net/~mreed/warriorshtm/godzilla.htm

3. You've really got this on your mind. Keep bringing it up. What's the problem, someone chapping your ass?

4. Read BURN RATE by Wolffe and think about his points on "chat". Also think about the whole "web 2.0" (some good net articles on it) as well as how Wikipedia is more of a social game than an encyclopedia.
1.29.2009 7:26am
M (mail):
I blame, to some degree, the registration/sign-in part of Balkin's comments for making them bad. To have a good comment section you need good voices (like mine, of course!) to help drown out the bad and keep the conversation going. But, I almost never comment at places that make me register and have a sign-in to do so- not because I'm opposed to it on principle, but because I already have too many pass-words and sign-ins and can't keep them all straight. I've tried a few times on such sites but after the 2nd or 3rd time of having a comment blocked because I can't remember what password or ID I used three months ago, the last time I wanted to comment, I just decide it's not worth it. I suspect I'm not alone. This leaves the people who are really dedicated to monopolize the conversation and often enough they are really dedicated because they are crazy.
1.29.2009 7:29am
CDU (mail) (www):
I haven't researched the issue for a while, but I remember cases where a very active approach to comment moderation could generate liability for the site operator. I.e., by removing many comments but leaving some defamatory ones, the site operator had in effect endorsed the defamatory comment.


There was a New York case along these lines in 1995 (Stratton Oakmont, Inc. v. Prodigy Services Co.). Section 230 was added to the Communications Decency Act the following year to preclude just this situation. It's now almost impossible for a website to be held liable for a comment regardless of their comment moderation policy.
1.29.2009 7:35am
Brett Bellmore:
Signing in is not difficult; Your browser can remember the details for each website. The problem for the alternative is that it makes it too easy for one poster to pretend to be another.
1.29.2009 7:39am
Hauk (mail):
In a sense Bart and I, with some help from one or two others less often, are responsible for the nature of the Balkinization comment threads... In the sense that, without us, they'd be peaceful orgies of mutual left-wing self congratulation.

WHO CARES if they are?! Get a life.
1.29.2009 7:48am
Anderson (mail):
The problem with Balkinization is that although its bloggers are scholarly and brilliant, they are also incredibly liberal and often nasty toward public officials.

Oh yeah, that was the problem all right.

The threads were dragged down by a 50/50 combo of (1) the neo-Stalinist commenter Bart, who would repeat any pro-Bush assertion no matter how many times debunked in the past, and (2) his opponents who simply would not ignore him, no matter how fruitless they knew dialogue with him to be. In sheer volume, indeed, the latter were even more obnoxious than the former.

I sympathized with the inclination to lash out at Bart, &succumbed to it myself on occasion, but also many times suggested that he simply be ignored, upon which I came in for some invective myself from the anti-Bart crowd.

Anyway, w/ the departure of Marty Lederman, the deletion of threads came to an end, which was even more annoying.
1.29.2009 7:52am
Definitely Not Hoosier Posting Under a Fake Name:
[Silly me! I'd been blaming Brian DePalma.]

What impresses me about our "little tribe" here is that the discussions have tended to remain at a rather high level. The election drew a large number of cranks, but most appear to have returned to Crankistan. DB's posts also generate a whopping-great amount of vitriol. But David posts frequently about the Israel/Palestine, [For some reason, "l+/" now appears as that Polish-w letter "l/". Sorry.] so that is unavoidable.

The best cure is prevention, which mean self-discipline: Don't respond to the cranks. Don't grab the bait. They'll leave.
1.29.2009 8:00am
Soronel Haetir (mail):
What made(?) the situation on Balkanization so odd to my mind is that the threads remained relatively short, certainly compared to what regularly crops up on the VC. For an author to not take part in a thread that doesn't even reach 20 comments shows a certain sort of disregard to the reader.

In regard to ATL, I dislike the comments enough that I don't bother reading them. But I think that's more a function of the items covered. You cover tabloid law, you're likely to get tabloid comments.

One example I would give to show that agressive and public moderation need not kill a blog's comment section would be climateaudit. Marking where text has been removed, often with a comment why leads most participants to toe the line. And it's less annoying than the spam filter here which sometimes balks on terms that are completely relevant to the topic.
1.29.2009 8:18am
devil's advocate (mail):
Kevin Jon Heller


[OK] as one of the relative moderates on VC


Come on, he's my favorite member of the VRWC and the best you can do is call him a flaming moderate, or was that double entendre intended to refer to his engagement with comments as moderat[or].

On substance [sorry], there seems to be a pretty serious water-off-a-duck culture in the comments here.

You can go directly from the nastiest snearing ad hominems to light touch with substance or humor (or both). While most commentors seems to read the comments threads they tune out vitriol - occasionally chide it, but usually ignore it.

The election had some impact on that, and my recollection is that 2008 was more affected by that phenomenon than 2004. But I'm not sure that was a bad thing, although it got stale.

I also have not identified particular commentors who 'take over' threads to such an extent that only predictable and obvious left/right progressive/conservative takes are played out. While there are some familiar names I feel like anyone always has the chance to say the most relevant thing in the comment threads. I think that actually makes people [with exceptions that prove the rule] more thoughtful. Every comment is an argument in moot court -- even when the substance is less legalistic.

Jack Black


Scotusblog ended its comments awhile ago because idiots started to hijack the threads and the high quality commenters (from Linda Greenhouse to practitioners of the Supreme Court bar to law students) were scared away by the nutbags. But Scotusblog erred. There should be public criticism of amicus briefs like this one,


Seems a little odd to condemn thread hijacking in this context, although I think water-off-a-duck applies here and even amongst hijackers (myself occasionally included), there is a sense of what would interest those following a particular thread.

Sounds like Oren will blog about that amicus brief, so I still have a few moments to gather my thoughts as to what I think about a bunch of like-minded academics rehashing how they would rule if they were on the court instead of in the classroom[complicated by the fact that this is one of the few areas where I do not automatically add my own name to any effort that has Richard Epstein's name attached to it]. It is not that I don't see consistency in Epstein's outlook but there are other axes of consistency as well, and one of few arguments I don't think he won outright is when he effectively debated Yoo (with two other panelists) on this area of law at the FS a couple years back.

Lastly, as to "unreadable", I post my most common lament -- couldn't we get a comments engine that allows you to correct your posts? I bet there are even sophisticated ones that would allow readers to toggle to the original if they thought that a commentor has used the corrections feature to change the argument post hoc.

And another request that is more of an outlier judging by the fact that I seem to be the only one who mentions it: a search engine that allows the comments to be searched. The way PICO search works is it searchs any page that has a link on a smaller set of entry pages, e.g. volokh.com, so it searches the archives pages, thus searching the text of all the original posts, but there is no link on volokh.com to the pages on which comments appear (except those threads currently on the front page) so if you remember a comment thread from 6 months ago and are trying to find it, you are SOL.

I think that all of the archive pages could be added to the PICO search site addresses, and that would fix it, and or a different search engine.

Brian
1.29.2009 8:31am
wm13:
Turning away from Balkinization for a minute, I was surprised that people thought there were problems with the comments at Above the Law. I thought they were funny. They were, however, several notches to the right of the official culture at most law firms (not to mention most law schools!). I.e., the commenters at Above the Law generally don't value diversity, or believe in helping the less fortunate, or support civil liberties for terrorists, or believe that good lawyers can come from any law school. I'm guessing that is what offended some people.
1.29.2009 8:44am
Snaphappy:
"amicus briefs like this one, which was leaked to Scotusblog for propaganda purposes"

I'm interested in your definition of the word "leak." How exactly does a firm that co-runs a blog (Howe &Russell) "leak" a brief that it wrote and filed in court to its own blog?
1.29.2009 8:50am
Soronel Haetir (mail):
My problem with the ATL comments was their brevity and lack of anything new to add to the topic. That is something I very much like about the VC, most of the head posts are more than just posting something seen elsewhere and many of the comments are value added. I never got that sense with ATL.
1.29.2009 8:52am
Snaphappy:
What offends me about comments at above the law is that the first 20 or so are variations on "First!," and the rest are often double, triple, quadruple or more posts of the same thing. David Lat then boasts that a particular post received 200 comments. Well sure, counting the ones that aren't really comments at all, and triple counting the rest, also.
1.29.2009 8:53am
_Jon (mail) (www):
I agree with you Orin. It is good to see that someone else realizes the importance of good moderation. I've stopped reading a few blogs because, while I'd like to comment on their posts, the trolls and such make it impossible to have a conversation or debate on the subject.

I also think that having he original poster being involved in the comment thread is important. No post is a be-all, end-all dictum on a topic. One of the cornerstones of the internet and blogs is the ability of the author to interact with the readers. This interaction can (and does) result in more clarity on the topic and more knowledge for the author.

A lot of people are not in favor of enforcing rules of conduct because they may chase away readers and dissuade comments. But - like many other ares of customer service - being strong and consistent in dealing with your clients results in a better product, environment, and better customers. It isn't easy for some people.
1.29.2009 8:57am
devil's advocate (mail):
LM


We are no less human when we comment on blogs than when we hang out with friends or join organizations.



I couldn't disagree more. There's any number of reasons* people feel allowed or compelled to behave worse online, and none to behave better.

[* anonymity, more perceived "otherness" from absence of personal audio/visual cues, safety from physical reprisals, to name a few]


It is hard to tell if you really mean this in such a categorical way. All of the problems you allege that in terms of some sense of self-restraint and the discourse in an online community have countervaling propositions.

More people are going to read your ideas, ergo if you want them taken seriously....

There is not pure anonymity on blogs. The conspirators commonly invite the public, including the readers and commentors here, to in 'in-person' fora around the country. I can't say that I know that many of the commentors, but I know a number of the conspirators -- probably to their chagrin, I'm a high maintenance guy. And I have heard from people who have read my comments here.

Cues are passed differently in this context, but is there any reason not to harken to Burke, Ricardo, Mills, SMith, the great intellectuals whose ideas werre shared moreso in letters to one another than in person [or on TV or radio....]

I'm not saying it is identical but it was a big part of their intellectual communion. The audience was narrower for each installment (until generally posthumous publication) and they did occasionally meet in person for intellectual and social discourse, but that is not so different than this circumstance.

Brian
1.29.2009 9:01am
Xanthippas (mail) (www):

I suspect the explanation rests largely on the different moderation practices at different blogs. If a blogger doesn't moderate comment threads at all on a widely read blog, people who want to be shocking, mean, or just irrelevant realize they can do their thing and reach a decent-sized audience. They eventually push out the more thoughtful people: You end up with a mess, or, as Brian Leiter would put it, a "cess pool." In contrast, if bloggers moderate their threads reasonably well, deleting irrelevant or abusive comments — and in some cases, participating in the comment threads themselves to carry on the debate — then you end up with a shift in culture over time. Readers begin to expect that the comment threads will be reasonably good, or at least entertaining, and more thoughtful people consider commenting themselves.


I think that's right. One note about ATL though; they claim to have always moderated their comments, but if so they do a poor job of it. Frequently they solicit "tips" from readers in their comments, but you can't read a single comment thread without finding a substantial number of racist, sexist, hostile and abusive comments; for me at least this defeated the purpose of even reading their comments for information, because you had to wade through so much trash. Now they're "hiding" them, which I don't think even begins to solve the problem; if anything it'll make it worse.

As for Balkinization...in the time I've been reading them, they've never garnered very many comments for a single post. I've participated in some threads that were good as far as comments go, but they might see 10 comments at most. I don't really know why that is; maybe because they focus so much more on substantive (and often confounding or complex) legal issues than Volokh does and so don't attract many people who feel qualified or interested in commenting. I think this blog does a good job of hitting all sorts of subjects, which attracts a wide readership, while still staying strongly focused on law and legal issues.
1.29.2009 9:13am
devil's advocate (mail):
sorry, practicing my new comments strategy of only making a dozen points per post -- trying to drastically increase my influence and take over the conspiracy.

On that question of the envrionment in a particular blog, and the differing identity and approach struck by different of the marquee participants, I think an interesting dichotomy emerges.

There is no question that headliners who join the comments threads (and notice those who join comments on posts they did not make - very collegial (the spelling engine doesn't recognize collegial, what's up with that?)) adds to a sense of engagement although response to your specific post by commentors is almost of the same inspiration.

But recognizing these ideas, I've noticed that it guest-bloggers, who often have attentive response to comments, nonetheless generally get the least comments. Now some of this has to do with the parochial content that attends the guest-blogging gig at Volokh, but surely some has to do with the lack of familiarity with the blogger that perhaps does not permit as free a criticism.

That's kind of a guess, but I think that there is some reflextion of boredom with these topics, but a degree of self-disicpline that transcends arguments about anonymity and lack of restraint in such an environment that folks are less likely to pile on someone here for a week than to take a shot at one of the long established bloggers.

Brian
1.29.2009 9:18am
Xanthippas (mail) (www):

The threads were dragged down by a 50/50 combo of (1) the neo-Stalinist commenter Bart, who would repeat any pro-Bush assertion no matter how many times debunked in the past, and (2) his opponents who simply would not ignore him, no matter how fruitless they knew dialogue with him to be. In sheer volume, indeed, the latter were even more obnoxious than the former.


I don't think that's the problem. The problem is Balkinization never attracted enough commentators to make up for single people who commented on almost every post. Bart only stuck out because he was a regular commentator, a rare breed at Balkinization. And I certainly never agreed with anything he said, but I never found him to be hostile or abusive. As for the second part...that happens everywhere; again, it was only a problem on Balkinization because there are so few regular commentators.
1.29.2009 9:20am
devil's advocate (mail):
Truepath


With another group of friends you might swear occasionally but even though no one [because my wife] objects or minds you just fall into a non-swearing sort of mode.


also did 10 years on talk radio, you can go from gutter language in the bar to nary a four letter word pretty easily. i was actually better, i.e. not one slip, on the radio than on the home front. of course it didn't hurt that my radio persona was not one of deliberately walking up to the line and trying to use coarse language that would not have been used on the radio 10 years ago.

and having a strikethrough button is the best feature of this comment engine (although underlining would help occasionally, and writing your own html works differently blog to blog).
1.29.2009 9:26am
Jack Black (mail):

I'm interested in your definition of the word "leak." How exactly does a firm that co-runs a blog (Howe &Russell) "leak" a brief that it wrote and filed in court to its own blog?



You're right. It's not a leak. It's a conflict-of-interest. Thanks for pointing that out.
1.29.2009 9:42am
Bart (mail):

Orin: My sense is that Balkinization threads were lightly edited if not unedited altogether, with the bloggers themselves generally not participating in comment threads.

You make a very good point. The initial posts over at Balinization usually responded to the blogger then often drifted off into collateral issues and name calling. If the bloggers monitored the posts to remove all cursing, name calling and non-topical posts and then bothered to respond to the quality posts, then the threads would be steered into more quality debates.


Jack Black (mail): The problem with Balkinization is that although its bloggers are scholarly and brilliant, they are also incredibly liberal and often nasty toward public officials. This attracts extremist left-winger commenters with no scholarly credentials and maximal dimwittedness to revile conservative or centrist public officials or policies in nasty terms. That nastiness attracts right-wing idiots to defend any assertion of authority or public order, whether logic or prudence demands it, in somewhat less nasty terms, so that they may demonstrate the civilizing influence of conservatism and expose the barbarian lurking beneath the cosmopolitan veneer of every card-carrying member of the ACLU.

On behalf of the two "rightwing idiots" (Brett and I) who regularly posted over at Balkinization, I doubt either one of us were under the illusion that conservatism performed a civilizing function among our leftist fellow bloggers. While I cannot speak for Brett, my purpose was to attempt to draw the professor bloggers out to defend what I considered to be frequently radical positions and get a real debate going. Most profs at my law school used these debates as teaching moments. Unfortunately, this does not appear to be the culture at Balkinization.

In contrast, Orin and a couple other professors here have been far more forthcoming in participating in their own threads and kind enough to respond to my points when they believe them to be of interest. I would suggest that involvement of the bloggers creates a much better comment product.
1.29.2009 9:44am
alkali (mail):
@Brett Bellmore: They couldn't just respond substantively? The "tweaking" generally consists of substantive points raised civilly, after all.

The particular comments made by Bart DePalma and BB at the Balkin blog were all stated in a civil tone. It was their practice of immediately responding to every single post by reframing the discussion as a left-right political dispute that made the comment threads useless. There was no genuine attempt to persuade, or openness to being persuaded, just contradiction.
1.29.2009 9:48am
Assistant Village Idiot (mail) (www):
I have not yet adjusted to thread culture. I still regard comments as if everyone were standing in the same room - a single cocktail party. As such, I have trouble ignoring comments, considering them part to the group conversation even if they are unhelpful. As a result, when people are rude or inflammatory, my impulse is to engage in social or logical correction, to tell them that they are violating norms. This is of course almost always worse than useless.

Cues by others to ignore a known troll are quite helpful. Otherwise, I am likely to think "this knucklehead shall not go unanswered in a public forum! Ha!"

I have never deleted a comment on my own site, save spam. I do have one occasional commenter who simply cannot give others credit for honest disagreement, who I eventually tell to have the last word with my blessing, as I have made my arguments as well as I can in previous comments.
1.29.2009 9:50am
Snaphappy:
"You're right. It's not a leak. It's a conflict-of-interest. Thanks for pointing that out."

I'm now interested in your definition of the word "conflict." How is it a conflict that a blog run by lawyers as a part of their Supreme Court practice posts a brief filed by those lawyers in the Supreme Court?
1.29.2009 9:58am
David M. Nieporent (www):
The threads were dragged down by a 50/50 combo of (1) the neo-Stalinist commenter Bart, who would repeat any pro-Bush assertion no matter how many times debunked in the past, and (2) his opponents who simply would not ignore him, no matter how fruitless they knew dialogue with him to be. In sheer volume, indeed, the latter were even more obnoxious than the former.
Please, Anderson. The proposition that Bart is to blame is easily falsified by looking at the reaction over there to any right-of-center ideas, including from bloggers/guest bloggers themselves. Look how nasty people are to Prof. Paulsen. Or the immediate knee-jerk hate reaction last week when a liberal blogger expressed some doubt over the cult of personality surrounding Obama.

Here's pretty much every comment thread at Balkin:

* Long, substantive blog post on why Bush is evil today because of A, B, and C.

Regular #1: Yes, Bush is Hitler.
Regular #2: Long rambling post about how 50 years ago, everyone knew how evil people like Bush and Hitler were.
Regular #3: In Europe, everyone knows Bush is Hitler.
Regular #4: No, Bush is Hitler squared!
Regular #5: No, Bush is Hitler infinity!
Bart: Actually, Bush is right about this. You're ignoring precedent X, Y, and Z which say so.
Regular #1: Bush is evil, and Bart is stupid! And a troll!
Regular #3: No, Bush and Bart are Hitler!
Regular #6: I hate Bart. [Note that he's "regular" only in that he regularly appears to attack Bart.]
Regular #4: Why isn't Bart banned from here so we can get back to our moment of hate regarding Bush?
Regular #5: I wish to insult Bart but I'm not witty!


And then it degenerates from there.

If Balkin et al. even once acted like Orin in slapping down the nastiness from people who agree with them -- including one poster whose sole contribution to the site is calling Bart names -- the quality of the comments would improve. Hell, if Balkin et al. simply came into the comment threads occasionally to act like the adults in the room, as the VC bloggers do, the quality would improve. But instead Balkin et al. ignore the vitriol in the threads except for every so often posting a separate blog post to call an unnamed commenter (Bart) a troll.
1.29.2009 10:02am
loki13 (mail):
Prof. Kerr,

I think the phenomenon you are trying to describe is "broken windows". I am sure you are familiar with it as applied to NYC and police work (when one window is broken, more windows break as people know longer feel a need to maintain the appearance of an area). It has been shown in many studies- if an area is clean, people are less likely to leave litter than if has trash in it already. Some people (I saw this on kottke.org) have extended this idea to comments on the web. If a website has comments that tend to be polite and sophisticated, it is less likely to have someone being making rude and trollish comments. OTOH, if a comment thread is populated with trolls, it is easier for someone to simply post another 'trollish' comment because, hey, there isn't civil discourse anyway, might as well.

I think the problem is easy to identify- that the more "rundown" the comments are, the more rundown they will become in a downward cycle until they are unreadable. Conversely, if the comments are good, they will continue to attract good comments.

The solution, however, is harder. How do you keep good comments? You do an excellent job of moderating your comments. What happens when the comments become too numerous or your time too scarce? Do you farm it out to trusted delagatees? Trust the wisdom of crowds (slashdot)? Let it go unmoderated and allow the downward cycle to start?

Anyway, wonderful job.
1.29.2009 10:02am
David M. Nieporent (www):

The particular comments made by Bart DePalma and BB at the Balkin blog were all stated in a civil tone. It was their practice of immediately responding to every single post by reframing the discussion as a left-right political dispute that made the comment threads useless. There was no genuine attempt to persuade, or openness to being persuaded, just contradiction.
"Reframing" the discussion as a left-right dispute? Every single post is about how Bush is evil, Republicans who support him are also evil, Democrats who support him are quasi-evil (except Lieberman, who's totally evil) and Democrats who merely fail to vigorously oppose him are spineless losers.

I agree that there was no real attempt to persuade, but I think lack of "openness to being persuaded" would, at the least, fall equally on each side.
1.29.2009 10:05am
Calderon:
Just to echo what some people have already said, Above The Law's commenting culture seems to have been driven by its topics and what the blog posts about. Also, it apparently drew whatever remained of the Greedy Associates crowd. I don't know that you can really expect much civil or enlightening discussion when you're posting about lesbian summer associates or talking about how bad bonuses are, which inevitable will result in angry rants in the comments.

Balkinization, on the other hand, seems to have an issue common to blogs that are dominated by one side politically. Whenever someone from the opposing viewpoint posts, ten people feel the need to shout him or her down as a troll (mostly by using caricatures) regardless of how civil the opposing poster is or how substantive their points are. You can see the same kind of thing happen in the comments to Pandagon and Michelle Malkin's blog. VC seems to have a built-in advantage in that the diversity of viewpoints prevents that dynamic.
1.29.2009 10:05am
Bama 1L:
I agree that Balkinization threads really became all too predictable. I don't think I've ever agreed with Bart or Brett but sometimes it happened that they raised interesting issues and one of their regular interlocutors met their arguments. So I will miss that. But on the whole, it never went anywhere. It did seem odd that the Balkinization bloggers never interacted with the commenters the way you see here or--and this is a blog with a totally different culture and comment density--at Prawfs.

This blog's comment dynamics are less predictable, too, except on the most overtly political/current-events topics. So that makes the comments generally worth reading and interacting with.

Also I got my note topic here and some good answers to law-school questions, so that's something..
1.29.2009 10:08am
JK:
Several people note there there are different comment cultures here depending on the poster, which is probably true, but the main split I've noticed is between "political" and "legal." Legal topics, even ones that are humorous, generally get thoughtful comments, but posts that deal with topics you would see on general "political blogs" tend to get a much worse signal to noise ratio.

I always wonder if the political posts get linked by more extreme right-wing sites, as it would seem odd for a bunch of knuckleheads to read the blog regularly only to post on political wedge topics once every couple of days or so (albeit during the election they had far more opportunities, and the comments sections temporarily became unreadable).
1.29.2009 10:10am
Bama 1L:
[Note that he's "regular" only in that he regularly appears to attack Bart.]

Bartbuster?

I halfway thought that particular poster was Bart himself. I mean, has anyone ever seen them together?
1.29.2009 10:16am
Clayton E. Cramer (mail) (www):
The reason that I have comments disabled on my blog is that I don't have time to moderate what would rapidly turn into petty and personal insults.
1.29.2009 10:20am
Anderson (mail):
I don't know that you can really expect much civil or enlightening discussion when you're posting about lesbian summer associates

But it sounds very much like a worthy experiment.
1.29.2009 10:21am
Soronel Haetir (mail):
As a perfect example of how the topic can drive the direction of a thread compare DB's two latests threads. The thread about overblown warnings has remained entirely civil, with the occassional humorous counterpoint. The thread about Gaza and international law had practically degenerated from the very beginning with the same tired roles already assumed.
1.29.2009 10:22am
Just an Observer:
The zooey quality of comment threads was one factor, albeit not the only factor, that caused me to mostly stop commenting for a long time. When I did comment earlier, I confess that I sometimes rose to the bait of the regular agent provocateurs, so perhaps I share some guilt.

I concur that judicious moderation by the top-level bloggers is useful -- not just to put a hard stop to uncivil behavior, but to politely and authoritatively challenge the "unusual" legalistic arguments often advanced by such agents. (Such polite professorial comments on similar arguments made in an academic setting typically accompany a low mark on the student's work.)

In any event, none of us commenters ultimately have much to complain about with regard to blogs, as we are simply guests mooching in the forum provided by our blogger hosts. The one practice I find maddening is for a top-level blogger to invite comments, let the thread develop, then later delete it.

@ Brian a/k/a devil's advocate:

A useful workaround to search comment threads is to use the advanced search feature in Google and restrict your search to the volokh.com domain.
1.29.2009 10:27am
Anderson (mail):
The one practice I find maddening is for a top-level blogger to invite comments, let the thread develop, then later delete it.

Lederman, IOW.

I should add that Just an Observer, CharleyCarp, sometimes Arne, PMS Chicago, and other commenters at Balkin's blog taught me a lot -- you could learn as much from the threads sometimes as from the posts, which testifies to how valuable the commenting could be.

When it all degenerates back into the umpteenth discussion of whether waterboarding is torture, however, there's just not much you can say.

And maybe part of that's the setting. The VC hasn't taken any "stand" on torture etc., so yet another discussion of whether waterboarding is torture doesn't surprise me much over here.

I wouldn't go to a Catholic blog and waste time in comments arguing that there is no God, or that Jesus didn't exist. That's just being hostile.

Similarly, where a blog like Balkinization had clearly staked out a position, and invited debate as to various nuances of that position, I think it was hostile to *incessantly* post comments challenging the fundamental culture of the blog. And I think that after a few weeks or months, hostile commenters like that should have been gently asked to play elsewhere, or else banned.
1.29.2009 10:35am
wm13:
"Balkin's blog had [sic: sc "has"] plenty of excellent posts by Balkin, Lederman and others, and I know that Prof. Kerr among others found their posts valuable."

I don't think that anyone denies that, but the main, regular bloggers at Balkinization rarely post anything that doesn't advance a left-wing, anti-Bush agenda. In contrast, Prof. Volokh and his co-conspirators post on a wide variety of topics, not always political, and not invariably partisan even when political.

I would think Prof. Balkin would have been embarrassed to ban Mr. DePalma from commenting, since he has always been perfectly civil and advanced reasoned arguments, though his politics are usually a little to the right of mine. Talk about a heckler's veto!
1.29.2009 10:38am
Anderson (mail):
I don't think that anyone denies that, but the main, regular bloggers at Balkinization rarely post anything that doesn't advance a left-wing, anti-Bush agenda.

I am not entirely clear why you think that opposing torture is "left-wing."

Regardless, see my 10:35 on blog culture, above. If a blog's too left-wing for you, drop in &taunt 'em now and then, but don't take up residence under the bridge and jump out every time someone walks across.

Trolls are like weeds -- it's all about where you find 'em.
1.29.2009 10:41am
Just an Observer:
Lederman, IOW.

Yes, I found those occasions at Balkinization frustrating, although I understand why he felt like he had been colonized by a parasite. Also, I noticed a couple of similar deletions of threads here recently, in some of Prof. Posner's posts. I did not understand why.
1.29.2009 10:46am
trad and anon:
As a perfect example of how the topic can drive the direction of a thread compare DB's two latests threads. The thread about overblown warnings has remained entirely civil, with the occassional humorous counterpoint. The thread about Gaza and international law had practically degenerated from the very beginning with the same tired roles already assumed.
The Israeli/Palestinian conflict generates by far the worst comment threads at the VC. Gay marriage is next, followed by the War on Terror/Iraq War/detainee policy.
1.29.2009 10:47am
M (mail):
it was only a problem on Balkinization because there are so few regular commentators.

This is part of what I was getting at with my complaint about registration. (Yes, Brett, I know you can save passwords on computers, but I'm often on different computers or don't want to save them for various reasons.) I might want to comment, but not if it means I have to remember another log-in and password or spend several minutes registering or being reminded of my password. Those who are willing to go through the trouble are often the more disturbed types who think there opinions are very important and so will comment on everything even if they know nothing. So, except in special cases, I think registration is a bad idea and that it helped make the comments on Balkanization worse.
1.29.2009 10:48am
Bart (mail):
Bartbuster is my personal cyber stalker who has been following me around the net for years now. I apologize for his antics, but he has declined my repeated invitations to ignore one another and appears to have made it his mission in life to attempt to make any blog in which i participate unreadable. Indeed, this character was just left a post over at my blog chortling over the fact that Balkinization has shut down its comments.

Take him for what he is.
1.29.2009 10:52am
Elliot123 (mail):
My observation is that comment culture at VC is less a function of the Conspirator, and more a function of the topic. I bet most of us could read a selection of intial posts, without naming the Conspirator, and predict how the eventual thread developed.
1.29.2009 10:55am
Jack Black (mail):

I'm now interested in your definition of the word "conflict." How is it a conflict that a blog run by lawyers as a part of their Supreme Court practice posts a brief filed by those lawyers in the Supreme Court?



Conflict-of-interest is a term of art. Perhaps you lack an understanding of it because you are not a native speaker of the English language. That may also explain why you do not know what a leak is. One can leak their own press releases; that is what PR agents are paid to do.
1.29.2009 11:01am
Thales (mail) (www):
I often enjoy the comment culture at the VC, but it does have a Wild West quality to it. I have occasionally myself succumbed to the urge to generate more heat than light (not to be construed as a comment about "AGW"), but actually do enjoy the occasional thoughtful interplay with other commenters and the posters.

That said, there's an awful lot of baseless insults and bullying around certain topics (the election, gay rights, global warming, civil liberties) and I'm afraid it does tend to come more often (though not always) from one end of the political spectrum.
1.29.2009 11:03am
Just an Observer:
Similarly, where a blog like Balkinization had clearly staked out a position, and invited debate as to various nuances of that position, I think it was hostile to *incessantly* post comments challenging the fundamental culture of the blog. And I think that after a few weeks or months, hostile commenters like that should have been gently asked to play elsewhere, or else banned.

I have commented on some blogs where I sometimes share and sometimes disagree with the majority viewpoint. Once upon a time I commented fairly regularly on ConfirmThem (now in semi hiatus). But that blog attached itself and its logins to the rabid orthodoxy of RedState, which made even polite dissenters feel like swimmers in a piranha-invested river. So I asked that my login be canceled.
1.29.2009 11:04am
Jack Black (mail):
Let's be honest. The problem at Balkinization was that the bloggers were too partisan. D. Nieporent is right: a blog about the evilness of Bush the Evil will generate stupid, vitriolic comments.
1.29.2009 11:09am
Anderson (mail):
Anderson, so far, on a thread about civility and blog commenting culture no less, you've called your interlocutors a jerk, intellectually shallow, a troll, and a neo-Stalinist.

"Troll" is a term of art here, and I think I just said that whether one's a troll depends on the context. Nieporent is trying to back off his comments, but I think they were shallow, and I know he's *not* typically a jerk, so I counseled him against it. (He has returned the favor.) I see that Jack Black got the same thing out of Nieporent's comment that I did.

It's just silly to reduce Balkinization down to "Bush is evil." Oooooh, look, I said something was silly. How incivil of me.

As for "neo-Stalinist," that's not mere invective; it's a description of a full-time apologist for a criminal regime. If I used the term inaccurately, I would be happy to have that demonstrated.
1.29.2009 11:14am
Thorley Winston (mail) (www):


I agree with Jack Black, it isn't just the moderating or lack thereof but often the blogger in question who sets the tone for the comments section. If the initial post is nasty in tone, it's probably going to attract like-minded people who agree with the nastiness and an equally nasty response from those who disagree. If you have enough nasty posts, then eventually that becomes the default mode for a lot of the comments on the site, even if other posts are more civil in nature.

Case in point, Megan McArdle used to blog at Asymmetrical Information and we had lively and almost invariably civil discussion with people across the political spectrum. When she moved to the Atlantic, the comments section became dominated by commenters from the other Atlantic bloggers who often took a decidedly nastier tone in their posts and her comments section deteoriated rapidly.
1.29.2009 11:19am
WGWAG:
Anderson, you're bending over backwards to justify a great deal of incivility. If I called you a "Libtard Quisling," and passed it off as "not mere invective" but "a description of a terrorist-aiding traitor to the country," would that be alright then?

To then issue a further challenge to you to prove me wrong -- as if the onus is on you to prove my epithet "inaccurate" -- is a little rich. But that is precisely what you're doing here.
1.29.2009 11:31am
Anderson (mail):
Well, I certainly didn't mean to be incivil, and I apologize.
1.29.2009 11:47am
Steve:
I think if a law professor wants to make an argument that Bush has broken the law, that argument rises or falls on its merits, and reducing it to "Bush is evil" is just unnecessary invective. Conservatives who claim that only crazy moonbats believe Bush could have possibly done something illegal are playing the same rhetorical game as liberals who claim that only extremist wingnuts oppose affirmative action. The agenda is to win an argument not on the merits but simply by declaring victory.

As to the issue of Bart's civility in comparison to the other Balkanization commentors, I respectfully suggest that it is a red herring. When you constantly opine that your political opponents hate everything that makes America great, seek to lose a war for political gain, and want to make common cause with terrorists, these comments are going to be provocative in the extreme regardless of how polite your choice of words may be. The reason why the VC has better threads is not a higher threshold of civility, but simply a better signal:noise ratio, which is to say there are enough thoughtful and interesting comments that people can simply ignore the predictable bleatings of folks like DangerMouse or whoever his lefty equivalent might be.
1.29.2009 11:49am
David M. Nieporent (www):
If the initial post is nasty in tone, it's probably going to attract like-minded people who agree with the nastiness and an equally nasty response from those who disagree

I would be happy to see three links to three "nasty" posts at Balkinization.
Contra Thorley, I wouldn't call the posts at Balkinization "nasty." They were always civil in language; they were just extremely vehement in content. "George Bush: War criminal who should be executed, or just a war criminal who should be imprisoned for life?"
1.29.2009 11:51am
Anderson (mail):
I see btw that Balkin has a new post up on the comments issue, with the following very true remarks:

It takes two to troll. A comments section can usually get away with one person who acts uncivilly every now and then, because other people can ignore that person, and, over time, the members of the group can learn how to police misbehavior, but once you have two or more such people, they tend to egg each other on and draw other people into their disputes.

This is about what I said about Bart and his "fan club," as it were.

Comments to Balkin's post on comments are disabled ... though I see that Prof. Tamanaha remains optimistic, opening comments on a post about Yoo's latest op-ed.
1.29.2009 11:52am
Anderson (mail):
When you constantly opine that your political opponents hate everything that makes America great, seek to lose a war for political gain, and want to make common cause with terrorists, these comments are going to be provocative in the extreme regardless of how polite your choice of words may be.

Word.
1.29.2009 11:52am
Prof. S. (mail):
I really wish I could have read this a lot sooner so I could have posted "first." Then I'd come back and say things like "Guys in my high school use to write obnoxious comments on some blogs and thoughtful ones on others all of the time. It was no big deal."

Now we'll see how much of an overlay between here and ATL there really is.
1.29.2009 11:53am
Alexia:
I don't have a single blog in my feed that does not allow comments. IMHO, when comments are not turned on, the author either does not have the strength to face detractors, or he does have an ego that is beyond all reason.

Another thought: Not on this blog, but in other blogs arguing with trolls is considered an opportunity to hone rebuttals.
1.29.2009 11:53am
Snaphappy:
Jack Black: Your insults (and improper use of hypehnation) aside, you might want to look up that term of art, along with the word "leak." They don't mean what you think they do. See conflict of interest.

Scotusblog's interest is in promoting its lawyers' Supreme Court practice is entirely consistent with its action of posting a brief that its lawyers wrote and filed in the Supreme Court. It brings attention to the firm, showing that they have authored a brief in an important case by a number of constitutional heavy hitters. Pray tell us, with what other interest of Scotusblog or its lawyers does posting the brief conflict?

And it makes no sense to say that public information that has been officially released has been "leaked." While you might leak a press release before it has been released, a disclosure of information that has already been disclosed isn't a leak. See, e.g., leak.

While I think you're being overly defensive and generally an ass, I would like to compliment you on the bolding of your responses to me. It makes them much easier to find.
1.29.2009 11:59am
David M. Nieporent (www):
I think if a law professor wants to make an argument that Bush has broken the law, that argument rises or falls on its merits, and reducing it to "Bush is evil" is just unnecessary invective. Conservatives who claim that only crazy moonbats believe Bush could have possibly done something illegal are playing the same rhetorical game as liberals who claim that only extremist wingnuts oppose affirmative action. The agenda is to win an argument not on the merits but simply by declaring victory.
I am not calling them "crazy moonbats," or even wrong on every point (although I think they are with regard to habeas at Gitmo *); indeed, I described their posts as substantive. But the underlying thesis of them was always that Bush was evil wrt something: torture, habeas, firing U.S. Attorneys, etc.



* And Sandy sometimes verges on "crazy moonbat" with his obsession about amending the constitution just to get Bush out of office. (Yes, I know he claimed that his positions on the subject were independent of his Bush hatred; I just don't find that overly persuasive.)
1.29.2009 12:00pm
Gordo:
I'm assuming that the individual conspirators moderate the comments on their individual blog posts. This would explain the differences in tolerance.

For example, after David Bernstein's crabby complaint about inaugural lollapaloozas I posted three words, "What a grump!" Someone saw fit to delete that comment in its entirety, I assume the rabbit-eared Professor Bernstein.

Other conspirators would probably chuckle at the impertinence.
1.29.2009 12:01pm
Calderon:
I really wish I could have read this a lot sooner so I could have posted "first." Then I'd come back and say things like "Guys in my high school use to write obnoxious comments on some blogs and thoughtful ones on others all of the time. It was no big deal."

Now we'll see how much of an overlay between here and ATL there really is.


We should also pounce on any grammatical errors in an original post, calling into question the intelligence, professional competence, and parentage of the Conspirator. We should also tell all non-EV conspirators that they're nowhere near as good as the original EV and should stop posting. If there's some other topic we believe VC should be covering, we should post relentlessly in every comment thread asking for an open thread on that topic until they succumb to our demands. Oh, and we should also make the same post multiple times in a row (is that from a problem with ATL's software? I've never understood why they have so many multiple posts)
1.29.2009 12:04pm
Matt P (mail):
I would find the ability to ignore certain posters for the foreseeable future via a button on their post most useful. If I feel that someone is a troll I would never have to see their posts again. If enough people agree than the troll in question would have their posts ignored by enough people to starve them of the attention they feed on.

I humbly suggest two simple rules:

1. Never assume you know someone else's motivation. No one here is a mind-reader and if you want to talk about someone's motiviation, ask them what it actually is first.

2. Don't feed the trolls. We all have our trollish moments, and for me, at least, they come out most when I want to respond to someone I think is a troll.
1.29.2009 12:04pm
Hoosier:
Hoosier, you're a jerk!
1.29.2009 12:04pm
Anderson (mail):
And Sandy sometimes verges on "crazy moonbat" with his obsession about amending the constitution just to get Bush out of office.

Definitely a hobbyhorse, though I think he's sincere about wanting that implemented even though the Age of Obama hath dawned.

Hoosier, you're a jerk!

Takes one to ... ah ... ?
1.29.2009 12:07pm
OrinKerr:
Be civil, Hoosier. ;-)
1.29.2009 12:08pm
Hoosier:
Matt P.

2. Don't feed the trolls. We all have our trollish moments, and for me, at least, they come out most when I want to respond to someone I think is a troll.

I'm with you on this, oh my brother.

Isn't there some way that the Conspirators can color-code readers for trollish leanings? That way we can tell who is causing trouble and avoid them. And if a poster gets to the high-warning level--let's say "Orange"--then they will feel compelled to post some very polite comments to get themselves back to, say, "Lavender." [Or maybe "Sea-foam"? I haven't really thought about this as much as I should.]

Finally, let's have a rule that the first respondent to any post must mention Hitler, so we can get it out of the way early. And let me be the first to admit that I have made this mistake many times myself, allowing others to invoke Hitler because I failed to go first.
1.29.2009 12:10pm
Anderson (mail):
Isn't there some way that the Conspirators can color-code readers for trollish leanings?

Oh, like little YELLOW STARS? Just like the NAZIS would've done? Just like on HITLER's blog?

-- There, we're caught up now.
1.29.2009 12:14pm
Hoosier:
I should have clarified the "First mention of Hitler" thing. Isn't reading through posts like having a first date with a cute girl? It's going really well, and you seem to be hitting it off. So by the time desert comes along, you are just about ready to puke, because you aren't sure if you're supposed to try to kiss her goodnight when you drop her off.

I say let's just be adults, and get all that the NRA* out of the way right away, as they say.



* Nazi Reference Anxiety (DSM IV)
1.29.2009 12:16pm
Hoosier:
Anderson

Thanks. I think my mention of Hitler counted as a meta-reference. So you got the job done.

Mea maxima culpa.
1.29.2009 12:17pm
Anderson (mail):
Always happy to help, as you know.

I think we should also distinguish between trolls and meta-trolls; indeed, I feel myself becoming the latter on the present thread.
1.29.2009 12:19pm
krs:
I agree with the post. I think Prof. Kerr's moderation has done a lot for the quality of the comments threads here.

I also agree that lack of moderation is what

On the al-Marri brief, I don't understand Jack Black's "conflict of interest" bit either. Scotusblog doesn't claim to be a neutral newspaper. It's a blog run by Supreme Court practitioners who are out to promote their business. Maintaining the best source of information on the web about the Supreme Court probably helps with that. I don't see what's wrong with the bloggers promoting their own work on there. They do pretty well keeping the self-promotion posts and the news posts "separate."

As for the content of the amicus brief, I haven't studied it closely, but it wouldn't surprise me. From what I know of the professors, about half of them are the worst of the worst self-promoters in legal academia. They're also very intelligent, but I'd have to imagine that the Court would take anything they say with a grain of salt, especially a press release dressed up as a brief.
1.29.2009 12:22pm
Jack Black (mail):

Scotusblog's interest is in promoting its lawyers' Supreme Court practice is entirely consistent with its action of posting a brief that its lawyers wrote and filed in the Supreme Court.


Actually, no. Scotusblog shut down it comments section because Tom Goldstein viewed the blog as providing a public service and serving the public interest in Court practice generally, especially with its 100k readership, and the comments were devaluing the benefits that many readers derived from the blog. The complaints about the blog's comments section came from Supreme Court practitioners in other firms and, notably, Linda Greenhouse, who was arguably the most widely read Supreme Court reporter at the time. Furthermore, Howe &Russell is not the firm associated with the blog; Goldstein moved to Akin Gump. Your claims are not just inaccurate; they are absolutely wrong.

In any event, the conflict-of-interest (which is a term-of-art in ethics generally, not just in legal ethics) arises from the representation that the blog serves the public and the amicus brief is noteworthy for its public value; in truth the amicus brief is little more than an advertisement for the books in print of the blog owner's pals and its content, in terms of advocacy, is shallow and thin. While the post linking to the amicus brief purports to say "Look at this compelling issue before the Court," what it truly says is "Laurence Tribe and Bruce Ackerman want royalties."


Scotusblog doesn't claim to be a neutral newspaper. It's a blog run by Supreme Court practitioners who are out to promote their business.



Actually, that is not true. They have a Supreme Court reporter on staff who is independent from the law firm, as well as a staff that is independent from the appellate practice run by Goldstein at Akin Gump. Lastly, the brief at issue was not drafted by Akin Gump attorneys. Your confusion is only proof of how misleading their practices are.
1.29.2009 12:49pm
hattio1:
Professor Kerr,
You're probably not still reading the thread, but if you are let me throw out two other possibilities that may have more effect. The Founder effect; were the first handful of commenters on a blog usually civil or not. I have to say this is pure speculation since I almost never go to Balkinization, and, while I'm a regular reader of this blog, I've never gone back to look at what happened originally. The second is, because some blogs are just aimed at a more scholarly level. The knives come out on these comment boxes in generally two situations; when someone is talking about a controversial subject of general interest, rather than a legal discussion of a case/statute, or when it is a legal issue, but is a super hot-button issue, abortion, etc. I would note that when it's a legal discussion of a hot button issue, the commenters who draw knives usually ignore the statute, case whatever at the heart of the blog, even if the Conspirator begs people to only comment if they've read the statute/case.
1.29.2009 12:50pm
Jack Black (mail):

While you might leak a press release before it has been released, a disclosure of information that has already been disclosed isn't a leak.



Court documents are hidden by practical obscurity. Practical obscurity is another term-of-art you may not understand.
1.29.2009 12:51pm
ed (mail) (www):
Hmmm.

My solution?

Bashin' 'n Battlin' commentators!

1. Set up a system where you must be registered to record comments.

2. Allow people to "score" comments by either upchecking or downchecking them, this score is then tallied and recorded by user.

3. Every upcheck adds +1, every downcheck subtracts 1.

4. At the end of every week any registered user with a sub-zero value gets automatically removed as a registered user but the -username- is permanently recorded and cannot be reused.

5. Invite people to upcheck and downcheck each other viciously, vicariously and repeatedly.

...

Result? Lots of pageviews, ad revenue and you get to ignore the trolls because they'll spend their time annoying each other.
1.29.2009 12:56pm
Ubertrout (mail):
Jack Black, I just wanted to say that you hit the nail on your head with the first post. VC doesn't have the same comment culture because the discussion is more lawnerdy and less partisan. Certainly it's not non-partisan, but the conspirators don't toe the party line (cf Orin and others regarding the wiretapping program being a statutory but not constitutional violation).

Equally so, note how David Bernstein's posts on Israel get the same if not worse comments as many Balkinization threads. The balkanizing (sorry, couldn't resist) quality of a post regarding its ideological content will directly relate to the comment culture it produces.
1.29.2009 1:07pm
Fub:
Anderson wrote at 1.29.2009 11:52am:
Word.
Actually a broadly general application of two words I think: Gresham's Law.
1.29.2009 1:20pm
pete (mail) (www):
You moderate comments, and yet still call yourself a libertarian blog!

Instead of writing about comment policy, you should be writing about why the current stimulus bill does not give me a pony.

Why are you still allowed to post on this blog, since after all I pay good money to read it?

Only someone who has actually written a blog before and moderated comments, should be commenting on how to moderate comments.

Hoosier is just like Hitler/Stalin/Bush/Obama.

Everyone who disagrees with this comment is a troll.
1.29.2009 1:21pm
Snaphappy:
Here's the post shutting down the comments. It mentions nothing about the public interest. It just says that they are shutting down comments because they were unable to control "unproductive sniping."

As for Akin vs. Howe &Russell, I can't blame you if you're ignorant of the relationship between the two firms, but you might at least have looked at the "authors" to see that Howe &Russell's name partners are authors of the blog, as is one of their employees. Akin might pay the Scotusblog bills, but H&R is a full participant. As for having a Supreme Court reporter as an author, you note yourself that he is independent from the firms. What better way to promote your site as the place to go for Supreme Court news?

Posting a brief in a case before the Supreme Court does in fact serve both the firm's interest and the public interest because as you also note, the brief might otherwise be difficult to find. (The fact that it could be hard to find is contrary to the interests of the amici and the authors, who would not have done the brief without a belief that it had some significance to the debate.)

As for your allegation that the brief is an advertisement for the amici's books, even if true, how does that conflict with any interest of the blog or the lawyers who authored the brief?

Jack, do you have something against Howe &Russell or the listed amici? It certainly seems you are going to great lengths to accuse them of wrongdoing for a very unremarkable action.
1.29.2009 1:25pm
David Warner:
"shocking, mean, or just irrelevant realize they can do their thing and reach a decent-sized audience. They eventually push out the more thoughtful people: You end up with a mess, or, as Brian Leiter"

One wonders whether the beginning and end of this string were just coincidentally in such proximity.

Cultures are highly non-linear and self-ordering (and disordering) things. Mu hunch is that it has a lot to do with the vibe set by the original posters, who attract (at least some) like-minded and like-temperamented folks.

EV, Somin, Kerr - there are few men with better temperaments, on or off line, and no one on the VC approaches anything like Leiter or Greenwald territory. Don't get me wrong, linkmobs still make their wilding way through, but the underlying culture is strong.

My other theory is that feral comment cultures arise from the same phenomenon as feral children - neglect. The occasional appearance of the OP in the VC comments makes a world of difference.
1.29.2009 1:34pm
Jack Black (mail):

It mentions nothing about the public interest. It just says that they are shutting down comments because they were unable to control "unproductive sniping."



You are obviously not a long-term reader of the blog. The commenter policy evolved over time. It started as a free-for-all, then moved to a names-no-handles-policy, and then comments were eventually shut down. I was referring to the entire evolution of the policy, which Tom Goldstein -- who for the last time, works at Akin Gump -- solicited comments on from regular readers. You might try a search for those posts as well, including the critical response to Linda Greenhouse's push for a no-handles policy. Lastly, Amy Howe is Tom Goldstein's wife, and Goldstein used to be a named partner in a firm with his wife. Obviously, the smaller Supreme Court litigation practice she runs with Kevin Russell is still associated with the blog, as Tom Goldstein, by all accounts, is a decent husband. That does not mean the website is run by Howe &Russell. Again, you have no idea what you're talking about. I'm done.
1.29.2009 1:45pm
Jack Black (mail):

As for having a Supreme Court reporter as an author, you note yourself that he is independent from the firms. What better way to promote your site as the place to go for Supreme Court news?



That the site is not really a place for objective reporting would be the conflict-of-interest you claim to fail to see. Now, I am truly done.
1.29.2009 1:47pm
David Warner:
Loki13 and LM,

I now see that, as usual, you've both beaten me to the latter point. I read LM and thought "Broken Windows", then of course Loki already had it. What oft was thought yet ne'er so well expressed.
1.29.2009 1:52pm
TCO:
I think this blog, it's writers and its commenters, are the best on the net.

I'm surprised and impressed that my gibes are not risen to--this is like the WC Feilds club, which is good because it refuses to have me as a member.

My single troll where I really did start getting traction (joyous delight in the mischief!) was with Kerr's colleague who makes tendentious arguments and locks threads from comments, refuses to allow comments, etc. I'm actually more of a gung-ho conservative than that dude, but when I see such instrinsic wimpitude, I just want to rally the entire board to a delicious torch and pitchfork storming of the manor.
1.29.2009 1:56pm
Just an Observer:
Jack Black: Let's be honest. The problem at Balkinization was that the bloggers were too partisan. D. Nieporent is right: a blog about the evilness of Bush the Evil will generate stupid, vitriolic comments.

Let's be honest about who makes vitriolic comments.
1.29.2009 2:02pm
Snaphappy:
At some point, I start to feel like the guy in that cartoon: (from out of the panel): "Honey are you coming to bed?" (man typing on computer): "In a minute. I have to finish this because someone on the internet is WRONG."

Sorry Jack, but there was neither a leak of the brief, nor a conflict in posting it. A place can both be "the" source for Supreme Court news and include objective reporting, yet still be run by lawyers who are interested in promoting their Supreme Court practice by, among other things, posting the things they have written and filed in the Supreme Court.

If anything, this farce that you and I have engaged in shows the need for the Scotusblog comment policy. I'm happy that you're denied the opportunity to post there.
1.29.2009 2:16pm
Hoosier:
pete

Hoosier is just like Hitler/Stalin/Bush/Obama.

In that I, respectively: Am vegetarian/was in seminary/have a wife who's smarter than me/used to live in Chicago?

Or did you mean something else?
1.29.2009 2:23pm
Matt L. (mail):
I think this blog, it's writers and its commenters, are the best on the net.
+1

I'd agree with almost everything Prof. Kerr said. The moderation is tremendously important for keeping comments civilized. (Though this thread appears to have become a bit contentious...)

And also, when a potential commenter feels like the post's author is actually paying attention to the thread (which is obviously the case when the author actually responds!), s/he will tend to put more effort and thought into the post.

The problem at Balkinization was that the bloggers were too partisan.
-1

My biggest problem with Balkinzation is that they don't have a favicon.ico!
1.29.2009 2:26pm
U.Va. Grad:
Jack Black: The problem with Balkinization is that although its bloggers are scholarly and brilliant, they are also incredibly liberal and often nasty toward public officials.

Noted lefties like Paulsen and Stras? The problem with Balkinization's comment section was the lack of moderation, not the political views of the authors.

wm13: They were, however, several notches to the right of the official culture at most law firms (not to mention most law schools!). I.e., the commenters at Above the Law generally don't value diversity, or believe in helping the less fortunate, or support civil liberties for terrorists, or believe that good lawyers can come from any law school. I'm guessing that is what offended some people.


To be sure, ATL's comment section has outspoken posts to the right of general law firm (and law school) culture. But the offensive, nasty stuff that got the comment policy changed had nothing to do with that--instead, it was repeated posts in every thread that, for no reason, said things like "Bend over, you b***h, and spread those buttcheeks." There were surely people who read ATL's comment section and were offended that someone might dare defend waterboarding, but that's a whole different level of offended from what one might expect out of repeated posts making light of anal rape.
1.29.2009 2:29pm
Soronel Haetir (mail):

Really? That might explain why I never called Scotusblog partisan and just called Tom Goldstein an ostensibly decent husband.



You were the one who brought out the terms leak and conflict of interest in relation to what they do.
1.29.2009 2:31pm
einhverfr (mail) (www):
I think the key is to have a consistent policy which is enforced with reasonable consistency. Other things can be done to further improve things, but if you don't have that, you don't have anything.

BTW, this blog has done really well regarding ensuring good comments and you are right to pat yourselves on the back.
1.29.2009 2:36pm
Bart (mail):
Steve:

As to the issue of Bart's civility in comparison to the other Balkanization commentors, I respectfully suggest that it is a red herring. When you constantly opine that your political opponents hate everything that makes America great, seek to lose a war for political gain, and want to make common cause with terrorists, these comments are going to be provocative in the extreme regardless of how polite your choice of words may be.

I have suggested in a number of venues that:

1) Government leakers and the media who disclose legal top secret intelligence gathering programs to the enemy are felons who violated the US Code and fall one intent element short of treason.

2) When Pelosi, Reid and Murtha lied by claiming that the Iraq War was lost and suggested the surrender of Iraq to get out the vote of their base, they sought to lose the war for political gain.

3) Those who share and attempt to advance the goals of our enemies are effectively making common cause with those enemies, whether they intend to do so or not.

These are all admittedly very provocative assertions. However, I would assert that they are all factually correct and are less provocative than the acts I am condemning and blogger posts in support of or excusing those acts.

Advancing provocative supported assertions does not excuse name calling and the like. Do not blame me for others' rude and childish behavior.
1.29.2009 2:50pm
Anderson (mail):
Government leakers and the media who disclose legal top secret intelligence gathering programs to the enemy are felons who violated the US Code and fall one intent element short of treason

And of course, if they're secret, then we just have to accept the government's assurance that they're legal.

When Pelosi, Reid and Murtha lied by claiming that the Iraq War was lost and suggested the surrender of Iraq to get out the vote of their base, they sought to lose the war for political gain

Classic. The war was "won" when we conquered the country. How long to occupy it is a political question. "Sought to lose the war for political gain" -- wow.

And Bart would turn this spigot on all the time, over a period of years.

The other commenters (including myself, back when I frequented the place) should've ignored him, but you can see the difficulty. If Bart had been banned, the blog would have comments enabled today.
1.29.2009 3:04pm
Just an Observer:
I almost enjoy the irony of some of the most prolific trolls in the legal blogosphere commenting in this thread and pretending not to be part of the problem.
1.29.2009 3:10pm
Anderson (mail):
I almost enjoy the irony of some of the most prolific trolls in the legal blogosphere commenting in this thread and pretending not to be part of the problem.

Ouch!
1.29.2009 3:16pm
Jack Black (mail):
If anything, this farce that you and I have engaged in shows the need for the Scotusblog comment policy. I'm happy that you're denied the opportunity to post there.

Interestingly enough, I never posted there. But I did read the comments, and thought many practitioners had interesting things to say about legal briefs or pending cases linked to on the site. That dimension of the site is unfortunately gone.
1.29.2009 3:18pm
Garth:

The other commenters (including myself, back when I frequented the place) should've ignored him, but you can see the difficulty. If Bart had been banned, the blog would have comments enabled today.


word
1.29.2009 3:31pm
lucia (mail) (www):
Orin,
I admire the job you do keeping your comments civil. It's impossible to say precisely what is required to keep comments civil, while still fostering discussion. Elements seem to include:
1) Keeping a fairly civil tone at the top of the fold.
2) Actually asking people to behave while not suppressing any particular point of view.
3) Monitoring for name calling and telling people to stop when they resort to that.
4) Being even handed about (2).
5) Banning when necessary.
6) It helps to blog about things that don't generate flame wars on other blogs.

Most people will behave fairly well based on 1-4. I think fairly well is generally good enough. Unfortunately, you sometimes have to ban those who just won't moderate their trollish-ways.

FWIW: I wrote a plugin to deal with the troll I attracted. The plugin modified Wordpress to show the troll his own comments but prevent others from reading them for a period of 6 hours It worked for a while but the trick prevented me from caching my posts. When my page views rose, the pages hung up because my host saw my blog drawing too much CPU. Someday, I'll figure out how to make the troll plugin compatible with caching-- but not today.

I eventually just banned the troll.
1.29.2009 3:53pm
Anderson (mail):
*Is* banning feasible in Blogspot, btw? Anyone know?
1.29.2009 3:54pm
jukeboxgrad (mail):
bart:

Those who share and attempt to advance the goals of our enemies are effectively making common cause with those enemies, whether they intend to do so or not.


Those who adopt a transparent double standard obviously don't intend to be taken seriously. Here's something GWB said while Americans were being held as POWs:

Victory means exit strategy, and it's important for the President to explain to us what the exit strategy is


Many similar statements from GOP leaders can be found here. Are you upset that GOP leaders were "making common cause" with our enemies?

I realize I'm feeding the famous troll.
1.29.2009 3:57pm
LM (mail):
Anderson,

If Bart had been banned, the blog would have comments enabled today.

For the reasons discussed here, I rarely read the comments. Was there a comment policy Bart violated, and if so was he warned? If not, why not? If so, why do you suppose he wasn't banned (and anyone else who qualified)?
1.29.2009 3:59pm
Dilan Esper (mail) (www):
These are all admittedly very provocative assertions. However, I would assert that they are all factually correct

I actually think Bart DePalma has unwittingly identified the actual problem here.

Bart is, for lack of a better word, a Joe McCarthy conservative. I know that term is loaded, but let's examine this intellectually. Basically, Bart sincerely believes that there are great threats to this country and our way of life, and further has a belief (that many who disagree with him would label a paranoia) that many elites in government, the political, judicial, legal, and academic communities, and elsewhere not only don't understand the threat but may even be actively attempting to aid those who threaten us.

People who believe this advocate:

1. Very, very strong, concentrated executive powers;
2. Deep, deep limitations on judicial review of such executive powers; and
3. Very few congressional checks on such powers.

Further, people who think this way are prone to allegations that those who disagree with them are not only wrong, but treasonous. That those who desire to protect rights that they don't think should be protected are "helping the enemy". That those who counsel that we should not abandon our basic values are simply not sufficiently informed to "understand the threat".

Thus, it isn't that Bart is defending the Bush Administration that earns him all the rebukes and pushbacks that he takes. Plenty of people defend the Bush Administration and get mostly substantive pushback. Rather, it's his frequently expressed attitude that liberals and the media and judges and Democrats and everyone he disagrees with are plotting to help the terrorists or at best are simply dupes who don't understand the threat the way he does. You take that attitude and just about any intelligent liberal is going to throw it back in your face.

The only other comment I would make is one I would say applies to everyone, not just Bart (it certainly applies to me). The farther off from one's areas of expertise one gets, the more bad arguments, factual misstatements, and general BS one is bound to utter. Bart, for some reason (perhaps because of his honorable military service), has learned a fair amount about military commissions and the law relating to seizure and detention of enemy combatants. I am not saying he is right in his conclusions, but he knows this stuff pretty well, including many of the major cases.

But he doesn't limit himself to the stuff he knows. Accordingly, I once embarrassed him in a discussion on torture (he had no idea that the arguments he had made about the vagueness of the CAT definition of torture and the US torture statute had been made in a US court and rejected). And there were several other discussions where he would just persist at getting things wrong in an area where I knew more than he did. Not because I am God's gift to lawyering-- I'm not-- but simply because I have different areas of expertise than he has (I happen to have litigated several torture cases).

This part of my post isn't meant as some sort of attack on Bart. We all do this. I do it too. One of Professor Volokh's great virtues is his willingness to say when he doesn't know enough about a subject to comment on it. Very few of us have that talent. But some of the meanest discussions over at Balkanization occurred when Bart got caught talking out of his behind about stuff he didn't really know about.
1.29.2009 4:52pm
pete (mail) (www):
A nice way to help commenters know how to be civil is to identify when comments have been removed and to say why.
1.29.2009 4:53pm
Bart (mail):
Anderson:

And Bart would turn this spigot on all the time, over a period of years.

My friend, disclosure of top secret programs, the Iraq War and praise for various policy goals shared by this nation's enemies were the subject of dozens, if not hundreds, of professor posts over at Balkinization. The tap was opened all the way before I posted.

Be honest. What you take exception to is not the subject matter, but rather my positions on that subject matter.

I assure you that I take as much of an exception to many of your views as you do mine. However, if I can restrain myself, then you can as well.
1.29.2009 4:56pm
OrinKerr:
Bart,

I've read your comments over the years, and I think the quality of the analysis and your civility are both below average. I haven't banned you, but I've certainly read your stuff and cringed. So instead of getting into spats, which you seem to do quite often, why not keep things super super civil and go out of your way to be nice to other commenters? That way you won't get banned here, too.

Steve,

I try to do that, but it's a mixed bag, actually. Soing so is also taken by some commenters as an invittation to revisit the decision and analyze whether the rationale truly justifies the deletion, whether there should have been some forced editing instead, whether there was a warning, whether the comments are being enforced even handedly, etc. Sometimes the only way to avoid comment moderation from triggering half hour of discussion is just to delete the comment.
1.29.2009 5:03pm
OrinKerr:
Oops, Pete, not Steve.
1.29.2009 5:04pm
Steve:
You just can't resist picking on the Steves of the world, can you?!?
1.29.2009 5:08pm
Nick056:
Anderson,

I really can't see the difficulty in ignoring that. It's the kind of thing that doesn't need refutation.

Trolls don't just appear when the windows are broken.

Trolls appear when they get a sense that the readers of a blog share a concept of a political boogeyman, and the troll wants to have a little fun being somebody's personal boogeyman, even if his online persona exaggerates his actual personality considerably. He could be a gay man married in Mass. with lovers on the side, an adopted kid, and a faith that the Supreme Court ought to grant gay marriage rights everywhere, or he could be a Georgian minister who marched on a courthouse to have the ten commandments erected outside, thinks all abortion is truly murder before God, but yet thinks that god loves of a government that asserts a right to detain and torture whomever it pleases (assuming its been doing so).

In short, communities that don't seem to have an idea of who the boogeyman is are less likely to meet him one cary night in the comments section.
1.29.2009 5:09pm
Joseph Slater (mail):
Instead of bringing attention to folks who do negative stuff (because they are probably seeking attention), how about giving some positive attention to folks who do positive stuff?

Specifically, it might be worth acknowledging folks who (i) frequently disagree with you, but (ii) typically make points that are valid/well-argued, are civil, and/or are amusing.

I'll start. Here are three people with whom I seem to disagree on the merits more often than not, but with whom I've had good exhcanges on this blog: Hoosier, David M. Nieporent, and Dave N.

That's not meant to be a definitive list of all such folks, but rather the first few I thought of off the top of my head.
1.29.2009 5:26pm
Bart (mail):
Orin:

Because you brought up the subject, I am curious: How do you propose that I improve the quality of my analysis and civility?

If there is another commentator who offers more citations, authority and substance in their posts, I would be pleased to emulate them. My experience in university classes and press is that conservatives are routinely asked to prove and justify their positions where others are not. Thus, when I submitted my articles for the paper or positions in class, I had already done my research and was prepared. I am actually grateful for the double standard because it made me a better and more prepared student and attorney.

Of course, if you believe that my positions are mistaken, you are free to offer contrary authority to rebut them. I believe your posts in our last discussion concerning the balance of war powers between the Executive and Congress consisted of assertions that you did not know others who shared my positions. That is an appeal to authority, not a citation to authority rebutting my position.

I do admit to losing my temper on occasion and for this I apologize However, if there is another commentator who allows more pure invective and bile to roll off his or her back without replying in kind, I would love to meet them.

I look forward to your instruction.
1.29.2009 5:31pm
lucia (mail) (www):
Joseph Slater--
I think, in a way, your comment highlights one of the reasons it's difficult to pin down the reasons some comments sections get filled with trolls and other do not. If a blog manages to attract a number of good commentors who express their points of view well and who are capable of ignoring trolls, the comments section flourishes. The few trolls who visit don't get the attention they craves, and they tend to move on. (Or, failing that, the act less trollish at some sites than others.)


Hoosier, DM Nierporent and DaveN are good interesting commenters. Unfortunately for those running, you can't know which commenters are going to end up being "good". So, figuring out how to foster the good commenters is difficult. Excessive moderation can drive the good out with the bad. No moderation lets troll's run free. Then the good commenters flee.

To some extent, VC's registration requirement may be useful. This is one of the few sites where registration is required but I don't seem to need to login constantly. This may deflect trolls who, oddly enough, do like their troll personas enough that they don't want to keep registering under new and different handles.

Still, VC did attract a number of good commenters. So, comments here are fun (at least for me. Though, for all I know, people cringe at my comments.)
1.29.2009 5:37pm
MarkField (mail):

Was there a comment policy Bart violated, and if so was he warned? If not, why not? If so, why do you suppose he wasn't banned (and anyone else who qualified)?


There wasn't really a comments policy there. They expected people to behave themselves. You will be shocked, shocked to discover that this didn't happen.
1.29.2009 5:39pm
zuch (mail) (www):
Steve:

As to the issue of Bart's civility in comparison to the other Balkanization commentors, I respectfully suggest that it is a red herring. When you constantly opine that your political opponents hate everything that makes America great, seek to lose a war for political gain, and want to make common cause with terrorists, these comments are going to be provocative in the extreme regardless of how polite your choice of words may be. The reason why the VC has better threads is not a higher threshold of civility, but simply a better signal:noise ratio, which is to say there are enough thoughtful and interesting comments that people can simply ignore the predictable bleatings of folks like DangerMouse or whoever his lefty equivalent might be.

This is part of the problem, I think. My main complaint about Bart DePalma is that he refused to consider and address the arguments of others, and instead repeated the same raw assertions over and over, ad nauseam. I made this point here (and elsewhere). There is merit in the suggestion that when he does so, the subsequent renditions should be ignored (although some wags have suggested that we simply institute a numbering system of stock responses pperhaps with links] for economy of blogspace.

Another complaint is his refusal to correct out-and-out mistakes (of fact or of law), even when pointed out (in some cases, multiple times). A truly "civil" discussion requires, at a minimum, that errors of fact are disposed of and that the original proponent then reframes the arguments with that in mind. If that doesn't happen, there truly is no purpose in the "debate"; you might just as well let each side put out "talking points" on their own website and let the buyer beware.

I'd note that the exquisitely tolerant Glenn Greenwald finally banned Bart, after Bart had made a slander against Glenn, and refused to substantiate it when Glenn requested this, but simply kept repeateing it. This is when Bart moved over to Balkinization, with the results we see.

David Nieporent:

Here's pretty much every comment thread at Balkin:

* Long, substantive blog post on why Bush is evil today because of A, B, and C.

Regular #1: Yes, Bush is Hitler.
Regular #2: Long rambling post about how 50 years ago, everyone... <*yadda-yadda*>


Care to cite your favourites from the many examples of such? I must have missed them all.

Cheers,
1.29.2009 5:40pm
zuch (mail) (www):
Bart DePalma says:

My friend, disclosure of top secret programs, the Iraq War and praise for various policy goals shared by this nation's enemies were the subject of dozens, if not hundreds, of professor posts over at Balkinization. The tap was opened all the way before I posted.

Bart claimed (more than once) that a majority of the Supreme Court had held that the N.Y. Times could be prosecuted post-publication in the Pentagon Papers case. I corrected him once. but he subsequently repeated this assertion in a later post. It is simply not true.

Cheers,
1.29.2009 5:44pm
ctw (mail):
Re my earlier description of the main problem re comments at Balkanization, QED. (Except that I didn't actually intend to D. My apologies.)

- Charles
1.29.2009 5:50pm
OrinKerr:
Bart,

I would be happy to help.

First, always add appropriate caveats and limitations to your arguments. If the law is murky, admit it up front: Never pretend that the law is more certain than it is. Relatedly, if someone points out an argument or case that cuts against you, thank them for it and ackowledge it: Don't come off as if you cannot be moved by a good argument.

Part of it boils down to attitude: Be humble. You write as if you think you are the smartest and most principled person in the room, and that you are being unfairly victimized by the leftist hordes. Assuming you genuinely think that, do your best to hide it: It comes off like you're just whining.
1.29.2009 5:53pm
Dilan Esper (mail) (www):
Professor Kerr is right in his advice, and I say this as someone who doesn't always follow his prescriptions as much as I should.
1.29.2009 6:07pm
Steve H:

My friend, disclosure of top secret programs, the Iraq War and praise for various policy goals shared by this nation's enemies were the subject of dozens, if not hundreds, of professor posts over at Balkinization. The tap was opened all the way before I posted.


First, the "shared by this nation's enemies" crap is snotty. I personally think that the US invasion of Iraq was a policy goal shared by this nation's enemies, such as al Qaeda. It certainly gave al Qaeda much aid and comfort. But if I were to constantly refer to those who advocated for or supported that war as traitors, it would get real old, real fast.

More importantly, repeating this crap in response to nearly every Balkinization post was obnoxious and rude. And it's no defense to say that the matters on which you were commenting were "the subject of dozens, if not hundreds," of posts at Balkinization, because it's their blog, not yours.

If the folks at Balkinization want to post dozens or hundreds of times on those subjects, what right do you have to complain? And if I want to go to Balkinization every so often to read those posts, I should be able to do so. But I found your repetitive responses very intrusive. Yes, you disagree with the general outlook of the posters there. I figured that out pretty quick. But by repeating your disagreement so often, you interfered with my ability to derive enjoyment from reading their posts and the intelligent comments that (sometimes) followed.

Finally, the tenor and frequency of your posts there made it clear that you were not interested in any sort of reasoned discussion about the issues raised in the posts, but rather just wanted to interfere with whatever the posters were trying to accompish. (And made it seem like you were desperate for attention.) That's pretty hard to take week after week, month after month.
1.29.2009 6:09pm
Sarah K.:
I definitely find it interesting how different blogs raise different moderation issues.

To me, ATL has had the biggest problem. The incredible juvenileness at ATL made the comments nearly unreadable, but the general juvenileness did little harm other than to degrade the forum. What killed me, however, was the way commenters trashed in the rawest terms possible subjects of posts who were not public figures. Because it is basically a gossip blog, posts from time to time deal with a stupid (or, sometimes, positive) thing some lawyer or law student did. This opened that lawyer up to all manner of raw critique about the subjects personal appearance or character. I was generally stunned. Of all the sites, this struck me as most calling out for moderation since these comments were likely read by the subjects of the posts and causing real damage in the world. I have a pretty low opinion of those running ATL for not getting that piece of it in hand sooner.

I've never been big into reading the comments at Balkinization, but they sort of bring to mind my original understanding of the term Troll from the mid-1990s which didn't mean an obnoxious poster but rather someone who was, in a way, tweeking the forum to get a reaction. In a more benign form, this meant reasking a question that had been done to death or asking a silly "newbie" question. Many would earnestly answer rather than heed the advice "don't feed the trolls." What happened at Balkinization seems like a less benign version of this: one or two commenters were aften the first to post a seemingly substantive but often outrageous comment that usually seemed deliberately designed to inflame the other regular commenters, and those commenters couldn't resist feeding the trolls and became more extreme in the process. (Which is not to say those instigators were never earnest, but...read a sampling.) Frankly, in this dynamic, shutting down the comments for a while may be the best approach. Maybe start over eventually with a different approach to moderation.

As a relative newbie here, let me offer this possibly incorrect observation (and not directed at the threads of any particular VC contributer): There is a tendency to immediately go afield from the specific content of the post to a debate about underlying principles related to the more general subject underlying the specific point of the post. It has, even to a newbie, the feel of rehashing old arguments. And it's both a little boring and a lost opportunity to have a more focused discussion about a post that was probably an interesting jumping off point for a conversation. But that's not a moderation issue.
1.29.2009 6:16pm
NTB24601:
alkali:

The particular comments made by Bart DePalma and [Bartbuster] at the Balkin blog were all stated in a civil tone. It was their practice of immediately responding to every single post by reframing the discussion as a left-right political dispute that made the comment threads useless. There was no genuine attempt to persuade, or openness to being persuaded, just contradiction.

I think that alkali really nailed it with this comment. The problem was that the comment thread would quickly degenerate into boring rehashes of political arguments. Everyone had read these arguments before and they drowned out intriguing discussions of the legal issues.

Bart:

Because you brought up the subject, I am curious: How do you propose that I improve the quality of my analysis and civility?

You didn't ask my opinion, but I am going to give it anyway.

First, its not your tone. I don't think I ever agreed with any comment of yours that I read at Balkinization, but I never recall you using an uncivil tone. (By contrast, I almost always agreed with Bartbuster and almost always found his tone sarcastic and uncivil.)

Instead, I think its your intention. I think you stated in the comments above that you intended to be provocative. My problem with your comments is that they seemed designed to provoke partisan debates, not to provoke substantive discourse.

My proposal would be that you write comments that try to persuade instead of trying to provoke. I would leave provocation to the original poster.

(I apologize if this comment was patronizing. I don't claim be better at this than anyone else. I'm just offering my opinion on what I like to read in comment threads.)
1.29.2009 6:16pm
Dave N (mail):
Joseph Slater,

Thank you for the shout out (and you too, Lucia). It always strokes the ego.

Not surprisingly, I agree with your point on this thread. The problem with the written word (whether it be a blog post, an e-mail, or even an appellate brief) is that tone is often missing. As a result, we mentally supply the tone--which may imbibe an otherwise inoffensive comment with meanings the author did not intend.

Most of those who read the VC are attorneys. As a result, we are advocates of one skill level or another. But in the courtroom, I make it a rule not to make things personal--after all opposing counsel is often a friend as a well as a colleague. I try to do the same here.

Attacking the speaker rather than the message is not only bad advocacy but also very weak couter-argument.

I appreciate zealous advocacy, both in court and here. There are many VC commentors, Joseph Slater, Mark Field, and Benjamin Davis (to name 3 semi-randomly from a longer list) with whom I usually vigorously disagree--but who present their viewpoints strongly without being disagreeable.

So my simple advice to anyone who posts here: It's the message that matters, not the messenger. If you are responding to the messenger and not the message, then all you are doing is flaming.
1.29.2009 6:18pm
Thales (mail) (www):
Incidentally, I've really enjoyed the comments of Hoosier over the past few years, even though we often disagree (I think civilly). I think that's a mark of a good set of commenters.
1.29.2009 6:18pm
pete (mail) (www):
Orin, I just brought that up since I did not think my comment was that uncivil (but was very sarcastic and fairly on point) and that is the first time I have ever been deleted/warned on this blog and have been a long time commenter. (not to drag out the process)

And by the way, since you disagreed with one of my comments that technically makes you a troll on your own blog if I go by the earlier standard of anyone who disagrees me is a troll. Hoosier agreed with my earlier comment so even though he is like Hitler/Stalin/Bush/Obama, he is not a troll.
1.29.2009 6:24pm
jukeboxgrad (mail):
steve h:

I personally think that the US invasion of Iraq was a policy goal shared by this nation's enemies, such as al Qaeda.


Some evidence to support that claim is here:

Al-Qaeda is watching the U.S. stock market's downward slide with something akin to jubilation, with its leaders hailing the financial crisis as a vindication of its strategy of crippling America's economy through endless, costly foreign wars against Islamist insurgents.

And at least some of its supporters think Sen. John McCain is the presidential candidate best suited to continue that trend.

"Al-Qaeda will have to support McCain in the coming election," said a commentary posted Monday on the extremist Web site al-Hesbah, which is closely linked to the terrorist group. It said the Arizona Republican would continue the "failing march of his predecessor," President Bush.
1.29.2009 6:24pm
Steve H:
Please, I don't want that to be a substantive point of discussion here.

I just used that example to show how extreme language like "shared by this nation's enemies" doesn't really add anything substantive to a discussion, it merely ticks people off.
1.29.2009 6:33pm
jukeboxgrad (mail):
Fair enough, I agree.
1.29.2009 6:35pm
Bart (mail):
Orin:

Genuine thanks for the perceptive response. Guilty as charged.

I am aware that I have a decided black and white world view with very little tolerance for grays. I do not do "maybe, maybe not" very well at all.

As an aside, I was amused to find that my Meyers Briggs personality category was a strong ENTJ off in the outer corner with folks like Napoleon and Maggie Thatcher and less than 2% of the rest of the population. However, I was impressed that the Meyers Briggs test pretty much pegged my personality and correctly predicted that I would prefer the military and trial attorney careers I had already chosen.

We are going to have to agree to disagree as to whether a black and white or a world of grays approach yields a better legal analysis. I would suggest that the rule of law is all about creating a black and white world, while a world of grays is more suited to the rule of men.

With that in mind, I will try to keep in mind that I am posting on academic blogs and do my best to tone it down a bit.

;^)
1.29.2009 6:47pm
LM (mail):
Orin,

[D]oing so is also taken by some commenters as an invittation to revisit the decision and analyze whether the rationale truly justifies the deletion, whether there should have been some forced editing instead, whether there was a warning, whether the comments are being enforced even handedly, etc.

I realize that vexes you, and with good reason. I'd suggest you give the brief, instructive announcements about the ban, and not let yourself get sucked into demands for protracted justifications. As you've pointed out, those demands are usually from commenters disinclined to modify their behavior, whatever you say.

Be humble.

I'd have that tattooed on my forehead if I weren't afraid it would get me shot.
1.29.2009 6:47pm
Bart (mail):
Steve H:

I just used that example to show how extreme language like "shared by this nation's enemies" doesn't really add anything substantive to a discussion, it merely ticks people off.

I use it as a method of changing the perspective and shaming a person advocating the attainment of enemy goals to reconsider and stop such advocacy.

Too Patton-esque for you?

Well, if you have a kindler and gentler means of achieving this, I would be glad to hear it.
1.29.2009 6:55pm
Dilan Esper (mail) (www):
Bart, I appreciate that you are saying that you will tone it down, but philosophically, I would also ask you to consider whether it is possible to maintain the Rule of Law without it always completely being a law of rules. Certainly a lot of American tort law (which is based on its English cousin), for instance, relies on jury adjudication based on a broad standard / guideline of what constitutes negligence, with outlier decisions being policed by appellate courts.

Now-- and for this discussion, let's leave out the more controversial areas of tort law and just focus on accidents between strangers causing serious injury, where I think everyone agrees that a negligent party should pay damages-- one could say that we don't have the rule of law in such situations. But I wouldn't say that. (See Esper and Keating, "Abusing 'Duty'", 79, So. Cal. L. Rev. 265 (2006) for a more detailed version of this argument.)

The tension between when bright line rules are needed and where decisionmakers need discretion is one of the oldest topics of jurisprudence and an area with no easy answers. But plenty of areas of the law are grayer than you would like them to be without being lawless. Part of being a good lawyer, I have found, is being able to figure out where the shades of gray are as opposed to the black and white.
1.29.2009 6:58pm
LM (mail):
MarkField:

There wasn't really a comments policy there. They expected people to behave themselves. You will be shocked, shocked to discover that this didn't happen.

Thanks. Not that I think a policy is required -- any blogger is entitled to publish or reject whatever s/he wants, from whomever s/he wants -- but if the object is to make the thing work, not spend half your time explaining why (see Orin's comment above), I think a comment policy is a good way to start.
1.29.2009 7:02pm
LM (mail):
Bart,

Kudos on the frank, dare I say "humble," acknowledgment.
1.29.2009 7:07pm
zuch (mail) (www):
I use it as a method of changing the perspective and shaming a person advocating [sucking the toes of Satan Himself and other various mortal sins...].

Which explains pretty much what happens at Balkinization. Doesn't seem to work, though. Which also explains what happes at Balkinization.

Cheers,
1.29.2009 7:08pm
Steve H:
I use it as a method of changing the perspective and shaming a person advocating the attainment of enemy goals to reconsider and stop such advocacy.


Whatever you think you are using it for, you aren't really doing that.

Has the fact that I pointed out that the Iraq War aided and comforted al-Qaeda caused you to reconsider and stop any advocacy for the Iraq War? Has that shamed you into realizing that you are a traitor? Are you ready to stop advocating?

Or do you instead disagree with my premise that support for the Iraq War is treason?

I am assuming you would disagree with my premise. (And probably dismiss me as an asshole for using such simplistic and unequivocal language to describe something that, in fact, might be subject to dispute.) Therefore, my describing support for the Iraq War as treason has accomplished nothing substantive.

More importantly, however, it's simply not your place to haunt Balkinization and repeatedly try to get them to reconsider and stop such advocacy. The first time or two, hey maybe you'll really convince someone. But after you do the same thing over and over, yet Balkin and Lederman and the others persist in their advocacy of treason, you surely have to realize that you aren't shaming anyone into doing anything, you are merely making an ass of yourself.


Well, if you have a kindler and gentler means of achieving this, I would be glad to hear it.


Sure. When it becomes obvious that you are not accomplishing anything substantive, but instead are impeding the ability of the posters and commenters of Balkinization to achieve their goals, stop doing it.
1.29.2009 7:09pm
zuch (mail) (www):
Dilan:

But plenty of areas of the law are grayer than you [Bart] would like them to be without being lawless....

Quite true. Which frustrated me a little in law school, coming out of the sciences and computers.

... Part of being a good lawyer, I have found, is being able to figure out where the shades of gray are as opposed to the black and white.

Indeed. As many have pointed out in the past, except for frootloops like Philip Berg (for which Rule 11 sanctions and/or disbarment may be the best remedy), most cases in law are decided on the grey edges; those with a "black and white" answer are usually quickly disposed of through summary judgement or settlement out of court (if not at the preliminary stage where your own lawyer tells you you're just SOL).

That's not to say that certain positions, particularly extreme ones, will find very little or no support in the existing law (and perhaps quite a bit of contrary authority), and be quite the up-hill battle. This is why any lawyer worth her salt will actually read the opposing briefs, and try to respond to them as best she can; not doing so can provide quite some embarrassment in court for those that care about such (not to mention poor representation of the client's interests).

Cheers,
1.29.2009 7:18pm
LM (mail):
It would also be nice if access to commenting was gated with a quiz to confirm you'd read the rest of the thread. Any volunteers to write that program?
1.29.2009 7:25pm
Anderson (mail):
Relocated my spatial coordinates 200 miles north, with the inescapable jiggle to the temporal coords as well ...

Just wanted to chime in re: the general respect for Dave N/Hoosier/Nieporent -- that in fact being why I was annoyed by Nieporent's strange perception of the Balkin blog; I assure you, there are people I would never waste my time asking not to be a jerk ... ;)
1.29.2009 7:30pm
Bart (mail):
Dilan:

I would also ask you to consider whether it is possible to maintain the Rule of Law without it always completely being a law of rules. Certainly a lot of American tort law (which is based on its English cousin), for instance, relies on jury adjudication based on a broad standard / guideline of what constitutes negligence, with outlier decisions being policed by appellate courts.

Dilan, you are going to get me in trouble for going off topic!

Real quickly, I view common law as a mixture of the rule of law and men.

In novel cases, the courts do create ex post facto liabilities based on their own personal view of what duties society should require of its members. This is the rule of men and women and not of the law.

Once the rules are established, enforcement of the common law is just as much the rule of law as enforcement of statute.
1.29.2009 7:36pm
Calderon:
... Part of being a good lawyer, I have found, is being able to figure out where the shades of gray are as opposed to the black and white.

Though a big part of being an effective lawyer is to figure out how to convince the court / opposing counsel / whomever that the shades of gray are actually black or white.
1.29.2009 7:38pm
Bart (mail):
At the risk of appearing too arrogant, all this talk of being humble reminds me of a little ditty by Mac Davis.
1.29.2009 7:42pm
Dilan Esper (mail) (www):
Once the rules are established, enforcement of the common law is just as much the rule of law as enforcement of statute.

That's a strange view of the common law. I read hundreds if not thousands of reported American negligence cases in preparing that article that I cited and certainly the prevailing trend for generations has been that juries have broad discretion over the issue of what constitutes reasonable care and that appellate courts will only step in if no reasonable jury would come to the same conclusion. In fact, attempts at setting down "rules" for use in negligence cases have almost always failed, such as the attempt by the US Supreme Court in the 19th Century to define the specific rules applicable to accidents between horses and trains. (My article was about a trend in the California courts towards cabining jury discretion through aggressive use of matter-of-law "duty" analysis-- but what was striking about this was precisely that it rejected a pretty established common law tradition.)

More generally, though, where you go wrong is your belief that broad standards that allow for discretion are inconsistent with the rule of law. While they certainly create a tension with the rule of law, in many circumstances they not only are not inconsistent with it but actually further the rule of law (by avoiding situations where judges and juries search to circumvent rules that if applied literally would lead to a bad result in a given case).

I won't go further off-topic, but you really ought to consider the various ways in which broader standards, judicial discretion, and deliberate ambiguity can be CONSISTENT with the rule of law.
1.29.2009 7:46pm
OrinKerr:
Thanks, Bart.
1.29.2009 8:20pm
lucia (mail) (www):
LM
It would also be nice if access to commenting was gated with a quiz to confirm you'd read the rest of the thread. Any volunteers to write that program?

The problem is many bloggers want more comments, not fewer. Have you seen how many bloggers write very long posts and have no comments at all? So may think that's fine--but the act of posting article publically rather than labeling them private generally means the blogger would like to think someone thought the material worth thinking about.

That's also why bloggers are sometimes reluctant to chastise or ban any visitors. Trolls know this.
1.29.2009 8:21pm
Bama 1L:
It's kind of suspect that we have to come to VC for the great Balkinization comments "where are they now," which in part takes the form of Orin Kerr mildly scolding Bart soon after having called Dilan out. Is this a stunt for sweeps?
1.29.2009 8:24pm
wm13:
Prof. Kerr has good advice, but, I have to say, it isn't advice that is followed by very many law professors, and certainly not by the bloggers at Balkinization, most of whom pretend that the law is very certain, and that, for example, John Yoo is undoubtedly a war criminal, or that the equal protection clause absolutely requires the legalization of gay marriages, or who respond to the election returns by jeering at Sarah Palin, etc. Really a nasty bunch of people. I think most blogs get the comments sections they deserve.
1.29.2009 9:05pm
Dilan Esper (mail) (www):
wm13:

Are you talking about law professors in class, law professors in their published scholarship, law professors authoring treatises or editing casebooks, law professors posting on blogs, law professors making media appearances, or law professors representing clients as their counsel? Are you talking about all law professors or just some of them? Or are you just generalizing without having actually compiled the data to make such a claim?
1.29.2009 9:28pm
loki13 (mail):
After seeing some of the posters on this thread, I have come to a realization. It is not "Broken Windows" in comment threads. It is "Balkin Windows" in comment threads.
1.29.2009 9:31pm
Anderson (mail):
Wm13's caricatures tell us something about him, but very little about "law professors."

I'm just a lawyer, not a law professor, but lack of standing has never stopped me before ...

(1) Yoo may or may not be a war criminal; there's very little precedent either way on his acts, but if he wrote his OLC memos with the intent of facilitating conduct in violation of the torture statute, that seems worth taking to the courts. Proving intent is of course the tricky part.

(2) I doubt that a majority of law profs "absolutely" think anything (see gray, shades of, supra). The equal protection argument isn't absurd, but I've seen it argued plausibly either way. Proponents of civil unions for gay people are on somewhat stronger ground I think.

(3) Mocking Sarah Palin is always in good form, any time, anywhere. Exhibit A, three words: "All of them."
1.29.2009 10:03pm
Jack Black (mail):

the bloggers at Balkinization, most of whom pretend that the law is very certain, and that, for example, John Yoo is undoubtedly a war criminal, or that the equal protection clause absolutely requires the legalization of gay marriages, or who respond to the election returns by jeering at Sarah Palin,



What an accurate observation.
1.29.2009 10:51pm
Hoosier:
Steve

Of course he can't resist picking on Steves. No one can, when Steves have exclusive access to the coolest thing in all of science.


Joseph Slater: Thanks for the good word. It's libs like you that make VC a fun place to . . . well, to bash liberalism, I guess.

Thales: I don't usually talk to Pre-Socratics. [They're usually dead.] But you're alright.

pete

Hoosier agreed with my earlier comment so even though he is like Hitler/Stalin/Bush/Obama, he is not a troll.

I agree with that too! Wow! I am totally not a troll today.


I appreciate all the nice things that have been said about me here today. Some of the compliments that some of us {ahem} have been exchanging here are evidence of exactly why I like this place so much: On what other political blogs will you find posters from right and left saying to each other that they appreciate the others' participation? I have never found an open-thread blog where this was imaginable.
1.29.2009 10:54pm
Brian K (mail):
Have you seen how many bloggers write very long posts and have no comments at all?

i think writing a long post and wanting more comments are two mutually exclusive things. in my experience, longer posts usually have less posts. it acts like a filter in that people who only really care about a subject will bother to slug through a who-knows-how-long essay. such posts, almost by default, will attract only a small subset of a blogs general readership.
1.29.2009 11:17pm
David M. Nieporent (www):
Care to cite your favourites from the many examples of such? I must have missed them all.
Not really; I'm not JukeBox. I read Balkin regularly (several times a week), and always read the posts, and sometimes venture into the comment threads. Just about any one that talks about Yoo, Guantanamo, Gonzales, etc., sounds like that. But I did forget to put in a mention of the guy who says "Rethuglican" in every comment he posts. (In no way, mind you, am I saying that liberals are worse than conservatives at this behavior. But at Balkinization, they were.)


As for Prof. Slater's ("Joe's") comments, blush. I want to return the compliment, and add Anderson and Mark Field and Dilan Esper as commenters I often disagree with but who I always find worth reading.
1.29.2009 11:34pm
David Warner:
Hoosier,

"Joseph Slater: Thanks for the good word. It's libs like you that make VC a fun place to . . . well, to bash liberalism, I guess."

It's probably not a good sign that that made me laugh out loud. Letterman, Hoosier, what is it with the wacky Indianans?
1.29.2009 11:38pm
David M. Nieporent (www):
I agree with that too! Wow! I am totally not a troll today.
Yeah, but you are a jerk, and I have it on good authority that you're a Hoosier.
1.29.2009 11:40pm
Soronel Haetir (mail):
block quote
It would also be nice if access to commenting was gated with a quiz to confirm you'd read the rest of the thread. Any volunteers to write that program?
block quote end

I would prefer to test this out with Congress first, quiz the members on what is in the bill, have them lock in their vote and then score the test. If the member doesn't get at least 85% their vote doesn't count.
1.29.2009 11:48pm
Christopher Cooke (mail):
I think Orin does a good job of moderating comments, so that makes a difference.
1.30.2009 12:06am
NickM (mail) (www):
Actually, Anderson, it only takes one to troll, if that one comments over and over, thus destroying the readability of comment threads. MKDP was the worst offender I can think of here (I recall one thread where 11 consecutive comments, some of them quite long, were from her. There may have been worse - I skip lots of comment threads entirely). Any discussion between other people is killed by something like that.

There are two things that IMO make VC comment threads much more enjoyable than comment threads on most other blogs.
#1: There isn't a significant party purity caucus ready to condemn someone who's normally on their side for expressing an opinion that diverges from theirs. People feel free to give their honest opinions.
#2: Humorous responses are publicly applauded, especially if they're at least somewhat on-topic.

Nick
1.30.2009 3:08am
T-Bone:
Might I suggest a "troll toll" to help with unwanted trolling at the VC. See http://www.youtube.com/watch?v=OutgI4XQ-Hs for a delightful explanation.
1.30.2009 4:43am
Public_Defender (mail):
Generally, when one of the conspirators delete a comment, they do a favor to the point of view advocated in the comment. That's because they tend only to delete the most obnoxious and least persuasive comments. It's truly painful to read an obnoxious comment advocating for your point of view.

I also appreciate the way Kerr interacts with comments.

Bernstein does have a heavier finger on the delete button than others, but he blogs a lot ob Israel and the Palestinians, and that topic brings out the crazies.

All in all, the conspirators are very open to very critical comments, and that's part of why this site works.
1.30.2009 5:29am
peter h. graber (mail):
i will post my two cents for what it's worth. i read balkinization regularly. my disclaimer... i read, and as noted below, i comment. my brother, mark graber, is one of the professors posting observations and comments which, especially recently, have attracted much attention and some (not so nice) comments in the threads.

while i make an occasional comment at balkinization, it is usually at the invitation of one of the original poster/professors. i was once a regular commenter on the threads, but stopped doing so about a year and a half ago when the comments section deteriorated markedly, as noted by professor balkin. at the time, i posted a comment in one of the threads stating my reasons, and noting that i would return if a level of civility returned as well.

while there is no need to name those those particularly egregious, the problem was clearly from both sides of the political spectrum. while i almost never agree with mr. depalma, his comments, for the most part, were civil, even if they were usually instantaneous to the original post (which considering that he is a practicing attorney i could never quite figure out) and completely predictable from a political standpoint. the reactions to his posts ranged from those who would try to make a civil comment to those who would immediately descend into name calling. there were one or two of those in particular. once the name calling started, it would descend into utter stupidity, and i would stop reading the thread. i made several comments in various threads asking that comments be kept on point. while some responded by saying they would try, i find it amazing that even to this day, some explicitly believe that responding with "zingers" is not only the correct response to those they consider trolls, but the only way of handling them.

this consider, i note that the "trolls" are not the only ones who have ruined balkinization, which i at one time considered among the very finest political/legal blogs on line. i also consider those who appear to enjoy hurling invective at the trolls equally responsible for its deterioration. i for one, am glad that professor balkin has for the moment deleted the comments threads, although i will miss the comments of those who took the issues discussed within seriously and commented accordingly.

phg
1.30.2009 9:36am
MarkField (mail):
I'm somewhat embarrassed (though secretly pleased, of course) to see my name mentioned. Thanks to those who did, and I return the compliment -- there are many posters here with whom I disagree most of the time, but they make important contributions and the site wouldn't be what it is without them.
1.30.2009 10:46am
Hoosier:
David Warner:

I can't say for sure why we Hoosiers are so funny. It may be a compensatory reaction to the mind-numbing boredom. But that's just a guess.

David M. Nieporent


Yeah, but you are a jerk, and I have it on good authority that you're a Hoosier.

Yeah, but consider the source of your info. Can he really be trusted?
1.30.2009 11:13am
Hoosier:
Mark Field

You've also expressed the 'humbling enjoyment' that I've gotten out of this thread. As well as the reason that I find VCers so much better intellectual companions than my faculty colleagues. Anonymity on blogs has it's disadvantages, of course. These have been discussed above. But the great positive result of anonymity, in my experience, is that no one has to pose. The posturing among U. faculty drives me batty: It's getting more difficult every year to have an honest, substantive conversation about anything controversial.

Academia: It's not just a job; it's a job in a cluttered office.
1.30.2009 11:22am
lucia (mail) (www):
peter graber--
It sounds like you tried to slow down the trollish behavior. Unfortunately, it read like you made one key tactical error: Threatening to leave if behavior didn't improve. Most people will curb their behavior because the want you to stay. Unfortunately, trolls delight in driving higher profile people away.
1.30.2009 12:08pm
Visitor Again:
OrinKerr:
Oops, Pete, not Steve.

Hee, hee. This brings back a memory. Back in 1964-65, I was editor of the student newspaper at U.C., Santa Barbara and my editorials generally supported the free speech positions (although not always the tactics) of the Free Speech Movement led by Mario Savio at U.C., Berkeley. The UCSB Chancellor was highly displeased with my writings, and, both at public gatherings and in personal encounters, he consistently referred to me as Steve instead of my given name, Pete (as I then preferred). Although I thought it a deliberate effort to insult or belittle me, I ignored it. He couldn't touch me because of the faculty's support of free speech, and I suppose he got some personal consolation and satisfaction from his petty disparagements.

Little did the chancellor know that a very few years later he would have to deal with student sit-ins and riots, including the burning of the Bank of America in Isla Vista, which was then occupied by the National Guard. I wondered whether he was still using the "call them by the wrong name" tactic and whether he found it effective in dealing with students whose conduct made me look like Caspar Milquetoast by comparison. The old boy died more than a decade ago, and I said a prayer for his soul.
1.30.2009 1:05pm
Just an Observer:
Unfortunately, trolls delight in driving higher profile people away.

A corollary is that agent provocateurs -- a particular breed of troll -- succeed if the bloggers feel compelled to shut down comments altogether. A characteristic of such agents is that they commonly deny that motive.
1.30.2009 1:08pm
Dilan Esper (mail) (www):
I want to return the compliment, and add Anderson and Mark Field and Dilan Esper as commenters I often disagree with but who I always find worth reading.

Thanks David, same to you. Indeed, one interesting thing about you is that you are much harder to pin down ideologically than most commenters (i.e., you will write a couple of comments defending "conservative / libertarian" positions, and then comment on a different thread in a more "liberal" direction), which suggests you are an independent thinker.
1.30.2009 2:10pm
Asher (mail):
Well, I was "tray," and I will miss the Balkinization comments section. Minus Bart and Arne, Brett at times, I thought everyone was fairly serious. Hopefully Levinson at least will keep comments up.
1.30.2009 3:01pm
Perseus (mail):
But the great positive result of anonymity, in my experience, is that no one has to pose. The posturing among U. faculty drives me batty:

Academics are poseurs? Say it ain't so!
1.30.2009 4:18pm
zuch (mail) (www):
David Nieporent:

[Arne]: Care to cite your favourites from the many examples of such? I must have missed them all.

[David]: Not really; I'm not JukeBox....


The proponent of an assertion has the burden of production. There's been a complaint that some comment sections are a bit long on accusations and a bit scarce on substance...

... I read Balkin regularly (several times a week), and always read the posts, and sometimes venture into the comment threads. Just about any one that talks about Yoo, Guantanamo, Gonzales, etc., sounds like that.

Well, surely, you could mention one of these, then? Then we can see if it truly matches the form you've described. But I'd note that your original assertion ("pretty much every comment thread") was a bit more general....

But I did forget to put in a mention of the guy who says "Rethuglican" in every comment he posts....

That might be thought by some to be a fair summing up of one of our major political parties (and its chief actor these last 8 years). Given the recent vote on the stimulus bill, I have no great hopes for change (BTW, if you take exception to my characterisation on that post there, perhaps you ought to simply scroll up a bit).

... (In no way, mind you, am I saying that liberals are worse than conservatives at this behavior. But at Balkinization, they were.)

There's more liberals there. And only a few "conservatives" [translated from Republican into English, "defenders of the maladministration no matter what they do"]. Which might explain the disparity. However, Balkinization is no different than many blogs in this respect (Glenn Greenwald's and ThinkProgress.org come to mind).

Cheers,
1.30.2009 4:36pm
zuch (mail) (www):
Asher:

Minus Bart and Arne, Brett at times, I thought everyone was fairly serious.

Oh, I was quite serious. And substantive when the occasion warranted it.

Cheers,
1.30.2009 4:38pm
LM (mail):

Minus Bart and Arne, Brett at times, I thought everyone was fairly serious.

Even Big Bird and Cookie Monster?
1.30.2009 4:42pm
zuch (mail) (www):
[S]ome explicitly believe that responding with "zingers" is not only the correct response to those they consider trolls, but the only way of handling them...

"Brevity is the soul of wit."

The author, of course, had some other, perhaps more controversial, opinions concerning lawyers which might call his assessment into question. ;-)

Cheers,
1.30.2009 6:07pm
SGEW (mail):
Extraordinary. This thread is like a reunion for everyone who stopped posting comments at Balkinization because of . . . well . . . you know. Hi y'all! Long time no see.

By the way, I'm personally waiting to see if Marty Lederman winds up mentioning Mr. DePalma by name in a memo for the OLC and cites him as a war criminal, just out of some sort of triumphant post-modern blogospheric naval-gazing spite.
1.30.2009 11:21pm
David Warner:
Dilan,

"you will write a couple of comments defending "conservative / libertarian" positions, and then comment on a different thread in a more "liberal" direction), which suggests you are an independent thinker."

Or perhaps it suggests that liberal and libertarian are not so different as one might suppose.
1.30.2009 11:47pm
Larry Fafarman (mail) (www):
The comment threads are often the most important parts of blog posts. The comment threads serve the important functions of presenting different views, finding flaws in the reasoning in the original articles, and correcting factual errors in the original articles. These functions are especially important on law blogs because law blogs are frequently authoritatively cited by law journals and are sometimes even authoritatively cited by court opinions.

The Internet has the potential to produce a quantum leap in our ability to exchange ideas. This potential of the Internet is sabotaged by suppression of visitors' comments on websites.

A related problem is the lack of peer review in law journals. Law journals are typically not peer-reviewed or even faculty-reviewed but are typically just student-reviewed! Furthermore, law journals are not just educational exercises for law students -- the Harvard Law Review alone was cited 4410 times in federal court opinions alone in the decade 1970-79 alone!

I participated in several discussions on Balkinization and I am very disappointed by the new comment policy there.

There is too much emphasis on civility. I allow name-calling on my blog if the name-calling is accompanied by serious arguments. I do not allow name-calling that disparages on the basis of race, sex, color, national origin, those kinds of things.
1.31.2009 5:46am
peter h. graber (mail):
The comment threads are often the most important parts of blog posts. The comment threads serve the important functions of presenting different views, finding flaws in the reasoning in the original articles, and correcting factual errors in the original articles. These functions are especially important on law blogs because law blogs are frequently authoritatively cited by law journals and are sometimes even authoritatively cited by court opinions

yes, but when the comments devolve simply into name calling and other such ridiculousness, they serve no purpose at all, and end up obscuring the point of the post and all comments that follow.
1.31.2009 9:31am
mattski:

First, the "shared by this nation's enemies" crap is snotty. I personally think that the US invasion of Iraq was a policy goal shared by this nation's enemies, such as al Qaeda. It certainly gave al Qaeda much aid and comfort. But if I were to constantly refer to those who advocated for or supported that war as traitors, it would get real old, real fast.


I think Steve put that very well. In my view Bart singlehandedly ruined Balkin's comment section. His intent was always to provoke, not persuade. His motivation clearly was hostile.

That the invasion of Iraq, to take a very illustrative example, might have actually been counterproductive is a possibility that Bart seems wholly incapable of processing.
1.31.2009 9:59am
Public_Defender (mail):

But the great positive result of anonymity, in my experience, is that no one has to pose.

Another advantage is that everyone has an equal starting point, so your ideas are as strong as they are or as weak as they are.
1.31.2009 11:05am
wm13:
"In my view Bart singlehandedly ruined Balkin's comment section."

Comment sections on a site like Balkinization will always be pretty much worthless. Blogs which consist almost entirely of tendentious, politically extreme posts usually attract only a handful of commentators, all of whom share the proprietors' views, and who generally egg each other on in an "Emperor's New Clothes" style. ("Bush should be impeached for his war crimes." "No, Bush AND Cheney should be tried by an international tribunal convened for such purpose." "No, trials are too good for such scum. String them up like we did to Mussolini." Etc.) The comments don't lead to productive discussion, just childish posturing. If you want to see a good example, try Unqualified Offerings. (Hey, maybe Mr. DePalma wants to start commenting there.)
1.31.2009 12:06pm
Larry Fafarman (mail) (www):
peter h. graber said (1.31.2009 9:31am) --
yes, but when the comments devolve simply into name calling and other such ridiculousness, they serve no purpose at all, and end up obscuring the point of the post and all comments that follow.

That's why my blog has a rule that name-calling must be accompanied by serious argument.

wm13 said (1.31.2009 12:06pm) --
Comment sections on a site like Balkinization will always be pretty much worthless.

I disagree -- I participated in some of the discussions on Balkinization and IMO they were good. Balkinization is a popular law blog and has no trouble in attracting good commenters. In some cases, the original article would have been very misleading without the comment thread.

IMO law journals and courts should have rules against authoritative citation of blogs that don't allow comments or that arbitrarily censor comments. The lack of peer review of law journal articles was bad enough, but now law bloggers are suppressing visitors' comments.

The bloggers on Balkinization have the option of allowing comments and I think that many of them will choose to do so because they want feedback, even if some garbage is mixed in. We will see what happens.
1.31.2009 3:00pm
Hank Gillette:
Bart:

I use it as a method of changing the perspective and shaming a person advocating the attainment of enemy goals to reconsider and stop such advocacy.

Wow, that must have been really frustrating for you.

You enthusiastically supported an administration that:

• authorized torture of people suspected of being terrorists
• asserted the right to hold people indefinitely without charging them of any crime
• defied legal subpoenas from Congress
• bragged about flouting the law

and did all this under unprecedented secrecy.

Yet, you were unable to shame people into agreeing with your position? I wonder why that didn't work for you?
1.31.2009 4:32pm
Hoosier:
Public

Very good. That hadn't occurred to me.
1.31.2009 6:29pm
LM (mail):
Public_Defender (and Hoosier):

Another advantage problem is that everyone has an equal starting point, so your ideas are as strong as they are or as weak as they are.

That's why I request a CV from every commenter who impresses me, so I can correct my opinion accordingly.
1.31.2009 10:04pm
LM (mail):
I request a CV

... needless to say, annotated with standardized test scores.
1.31.2009 10:06pm
Hoosier:
LM

You forgot to add that one can list only peer-reviewed publications on one's CV.

[Take that law faculty!]
2.1.2009 8:09am
LM (mail):
That's why I didn't take a write-on packet for law review. Why would I want to work for any publication that would have me as an editor?

[BTW, almost every word I've written since has convinced me that was a wise judgment.]
2.1.2009 10:28am
Blue:
Why do I have a bad feeling developing about the influx of exiled commentators from Balikinization....
2.2.2009 4:40pm
lucia (mail) (www):
I'm bummed out that Randy Barnett blogged on commenting policy with comments closed. Drat!
2.2.2009 6:14pm
ChrisTS (mail):
Blue writes:
Why do I have a bad feeling developing about the influx of exiled commentators from Balikinization....


Funny, but possibly a well-grounded fear. As one who enjoys Balkanization, I can say that the efforts of BDeP, *harles, and BBuster have had a deleterious effect on the quality of the comments and on the pleasure of reading and contributing. I am trying to disguise the user names a bit, as *harles, in particular, seems to have some system for finding any reference to himself and responding. And, I would defend Arne ('zuch'), as his forays into BDeP land seem ascribable to extreme provocation - ok, mitigating and not exculpatory, but something to be considered.

I recommend that the VC leaders keep an eye on the destroyers on both sides, and I wish Jack would employ the VC system.
Chris
2.7.2009 5:27pm
Sammy Finkelman (mail):
I noticed here that someone mentioned Peer Review. Peer review is actually a way, or can be a way to keep truth out, and to put nonsense in. (although in gebnerally noncontrversial areas or at least in areas without a PR campaign for something it may keep out nonsense.

I just read somewhere about somebody reading something with many footnotes and peer review and everything. But almost all of it traced back to a WHO publication, ans that in turn basically, ly to anecdotes. The numbers were nonsense.
2.10.2009 2:10pm

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