Why I Write ‘Legal Scholarship’

The question is posed:

PrawfsBlawg: Why I Write. (No, Really, Remind Me Again — Why Do I Write?): I want to ask the question: why do we write? This is a surprisingly difficult question on which I'd be curious to hear from my fellow bloggers (or blawgers, or…forget it). Let me limit it to the question, why do we write legal scholarship?

You could say that before I got tenure, I wrote for tenure. And there's a grain of truth to that; I certainly made it a goal to write so much that the faculty — which claims to hold to a norm that you should not vote against a person unless you have read all their writing — would find voting 'yes' to be the lesser of two evils.

But by now I have had tenure for some time, so I don't really have to write. Failure to write at all would cost me some respect — unless it's for good cause (say, service to the community or intense involvement in pro bono litigation). That said, law teaching is a surprisingly monastic life. I don't actually spend much of my day talking to anyone. And Miami is far enough away from other places where people do what I do that getting to them is an Event. And rare. So respect or its lack actually has little implact in my daily life. So that can't explain why I write several times as much as the uncertain minimum needed to avoid the cold shoulder.

Is it for money? Legal academic writing is unpaid. If a keynote address pays anything over expenses, it's a memorable payday. It doesn't happen very often. I once scored in the low four figures for a speech and a paper and thought it the most amazing thing. At the margin, in some years, the Dean has a very tiny amount of discretionary money to throw towards people who he wants to reward, and writing is one thing he says he wants to reward. Although, 102% or even 104% of a salary that is increasingly behind the norms of the trade is still a salary that is falling behind the norms of the trade — and when coupled with increases in health insurance costs, one that may be losing real buying power. So I guess I'm not doing it for money. Or if I am, I'm an idiot.

So why write then? I think it varies. Let's look at the last five years or so:

++Some articles I wrote because I wanted to understand something, and only writing it down would make it clear.

• ICANN & Anti-Trust , 2003 ILL. L. REV. 1, (with Mark Lemley).

• The Death of Privacy?, 52 STAN L. REV. 1461 (2000).

(Almost everything fell into this category in the early days — I'm not sure if that's because Internet law was new, or because I was, or both. But my digital signatures and certificates work, and also my crypto work, generally fell in this category. And, my next big project does too…)

++ Many articles I wrote because the idea seemed cool so I wanted to share them, and/or I wanted to work them out on paper to better understand them..

• Virtual Worlds, Real Rules, 1 N.Y.L. SCH. L. REV. 103 (2004) (with Caroline Bradley).

• Habermas@discourse.net: Toward a Critical Theory of Cyberspace, 116 HARV. L. REV. 749 (2003).

• Speculative Microeconomics for Tomorrow's Economy, in INTERNET PUBLISHING AND BEYOND: THE ECONOMICS OF DIGITAL INFORMATION AND INTELLECTUAL PROPERTY 6 (Brian Kahin & Hal Varian eds., 2000), (with James Bradford DeLong).

• Semi-Private International Rulemaking: Lessons Learned from the WIPO Domain Name Process, in REGULATING THE GLOBAL INFORMATION SOCIETY 211 (Christopher T. Marsden ed., 2000).

++ Some articles I wrote because I was angry and wanted to fix something.

• ICANN's UDRP: Its Causes and (Partial) Cures, 67 BROOK. L. REV. 605 (2002).

• Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 DUKE L.J. 17 (2000).

++ I wrote an article because someone attacked me, seriously mis-stating both my arguments and the relevant law.

• Form and Substance in Cyberspace, 6 J. SMALL & EMERGING BUS. L. 93 (2002).

++ Some articles I wrote because someone I like asked me to and/or because it was the price of admission to a conference where I got to meet nice people and learn interesting things…

• When We Say US™, We Mean It!, 41 Hous. L. Rev. 839 (2004).

• Commentary: Time to Hug a Bureaucrat, 35 LOY. U. CHI. L.J. 139 (2003).

• ICANN 2.0: Meet the New Boss, 36 LOY. L.A. L. REV. 1087 (2003).

• Anonymity in the Balance, in DIGITAL ANONYMITY: TENSIONS AND DIMENSIONS (C. Nicoll et al. eds., 2003).

• Internet's International Regulation: Emergence and Enforcement, in EVOLUTION DES SYSTEMES JURIDIQUE, BIJURIDISM ET COMMERCE INTERNATIONAL / THE EVOLUTION OF LEGAL SYSTEMS, BIJURALISM AND INTERNATIONAL TRADE (Louis Perret & Alain-Francois Bisson eds., 2002).

• The Collision of Trademarks, Domain Names, and Due Process in Cyberspace, 44 COMM. ACM. 91 (2001).

Which motive produces the best articles? That's perhaps not for me to say.