A Study In Exasperation

The Volokh Conspiracy is a popular law blog, founded by Eugene Volokh of the UCLA School of Law, and featuring some two dozen bloggers, most of whom are law professors.

I was originally drawn to The Volokh Conspiracy because one of the more prominent bloggers on the site, Orin Kerr of the George Washington University School of Law, specializes in research on cybercrime law, including the Computer Fraud and Abuse Act (CFAA), under which Aaron Swartz was indicted.  Professor Kerr has written about the Aaron Swartz case, as well as other related cases.  He also testifies before Congressional subcommittees responsible for cybercrime legislation.

Readers at The Volokh Conspiracy typically have lively discussions about the issues which the law professors opine about and otherwise bring up for discussion.

I was participating in a handful of these conversations when I ran into difficulties with the DISQUS Commenting System.  Unable to diagnose the problem, I wrote to Eugene Volokh.  There ensued this curious exchange, which Professors Volokh and Kerr have graciously consented to permit me to reproduce here.

~~   Frachtwagens von Kauderwelsch  ~~
Dear Professor Volokh,

A few days ago, I ran into a perplexing glitch while participating in the comments sections of Volokh Conspiracy.

When I try to enter a comment with my DISQUS ID, the comment posting box remains unprocessed.

I tried logging out of DISQUS and posting with my well-known alternate screen name, and that worked at first, but then that also glitched.  I tried clearing cookies, to no avail.

I am now seeing this error message in the comments below your latest post:

You do not have permission to post on this thread.

I am wondering if there is some other problem -- perhaps something other than a technical glitch with DISQUS.

I would be grateful if you would kindly ask one of your staff to help diagnose and correct the problem.

Regards,

Barry Kort

_____________

Barry Kort, Ph.D.

Visiting Scientist (Retired)

Affective Computing Research Group

MIT Media Lab

Cambridge MA

-- 
"Whereof we cannot express a theory, we must narrate a story instead.''  —Umberto Eco

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Barry,

You cannot comment at the blog because I decided that it was in the best interest of the blog to end your commenting privileges.  I apologize, but my conclusion was that your many comments were just too often not closely related to the posts:  In particular, your comments tend to be about subjects of interest to you, rather than about the subject of the thread, which led to frequent "thread jacking" and side discussions of little relevance to the posts that made the threads lose their focus.  I also thought some of your comments came off as rude, although I realize that you may not have meant them that way.  

Just to pick one example, in the comment thread about NYU's new dean, you turned a discussion about an outside dean hire at a law school into a discussion of internal hiring in corporations, focused on an issue that you are apparently interested in (how corporations may "kick someone upstairs") that wasn't related to the subject of the post (Morrison was an outside hire, so he obviously wasn't promoted for that reason).   And then when I noted (in response to someone's comment) that becoming a law school dean wasn't very good training to be solicitor general because "you're not only not practicing law, you're not even thinking all that much about it.," you responded, "Orin, do they teach metacognition within the corridors of law schools?"  That was either an obnoxious comment to me or else yet another comment about some topic of interest to you (who teaches "metacognition") rather than of interest to the thread.  

Anyway, I apologize if you're unhappy with the news. But our preference is to try to maintain a comment thread that stays pretty closely to the subject of the posts, and your comments consistently veered the discussion away from that focus.  Again, my apologies. 

Orin

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Orin, 

Thank your for disclosing your responsibility in terminating my posting privilege on Volokh Conspiracy.  That resolves my perplexity, exchanging it for one of astonishment and vexation.

I would like to respectfully request a public hearing, review, and discussion, before a representative panel of your peers and other veteran and respected participants in the conversations at Volokh Conspiracy, regarding the issues of fairness, appropriateness, and due process, in decisions such as the one you have enacted here.  

That is, I would like to propose the above open conversation in the spirit of truth and reconciliation among fellow academics who seek to converse among their peers in a collegial and congenial manner, in accordance with the highest principles of scholarly ethics and good faith.

Barry

"Whereof we cannot express a coherent theory of law, we must narrate a whimsical story instead.''  --Moulton

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                Prof. Kort:  It’s just a blog, and in particular our blog.  We run it and the comments threads in the way we think is best, and we run it as a sideline to our day jobs.  If we had to have a big procedure before such decisions are made, we basically couldn’t effectively moderate comments, which we means that we wouldn’t have comments at all, so that neither you nor anyone else could post comments.  And, it being our dinner party, we get to set up the guest list.

                But the good news is that it’s a very big Internet out there.  There are millions of blogs you can comment on them, and of course you can easily set up your own as well.  So public hearings, review, discussion, and due process strike us as rather out of place given that it’s our blog, and given the extremely small value of the privilege at stake.

                Eugene Volokh

~~~~~~~~~~~~~~~~~~~~~~~~~~~

Professor Volokh,

I understand your position, and I respect it.  But permit me to make you aware of the subtle implications of your community's policy and practice.

As you know, the modern concept of law descends from practices originally introduced into civilization by figures like Solon and Hammurabi. It's instructive to take a look at the very first law of Hammurabi's Code:

1. If any one ensnare another, putting a ban upon him, but he can not prove it, then he that ensnared him shall be put to death.

Capricious and arbitrary ostracism is not an issue to be taken lightly, at least not by those whose traditions descend from deep regard for the Rule of Law.

When Thomas Jefferson and the other Founders drafted the US Constitution, one of the provisions they put in Article One was a prohibition against Bills of Attainder. As you know, a Bill of Attainder is the technical term in the law for declaring a person to be an unwelcome outlaw or outcast (without respect to having violated any specific law that applies equally to everyone). The Founders excluded Bills of Attainder from the tools of governance because 4000 years of political history had demonstrated that such a toxic practice is corrosive and ridden with corruption, and invariably sinks any regime that comes to rely on it.

So what is the remedy? One amusing answer can be found in the second law of Hammurabi’s Code. As Hammurabi advises, the solution is to call upon the alleged miscreants to go jump in the lake.

Or as they say in Yiddish, “Nem zich a vaneh!“

So yes, it's just a blog. Just a blog exemplifying the best scholarship, best thinking, and best practices of some two dozen of America's most visible academics in the field of law.

Professor Volokh, is this the best your scholarly community can do in terms of setting a worthy example for young and impressionable students of law to learn ethical best practices from their elders?

Regards,

Barry Kort

_____________

Barry Kort, Ph.D.

Visiting Scientist (Retired)

Affective Computing Research Group

MIT Media Lab

Cambridge MA

"Whereof we cannot express a coherent theory of law, we must narrate a whimsical story instead.'' --Moulton

~~~~~~~~~~~~~~~~~~~~~~~~~~~

The Rule of Law is very important when it comes to government action. It may even be important for large organizations in which membership matters a great deal, such as private universities -- though even there that's not clear, given that many private employers operate without quasi-legal procedures for dismissals, demotions, and so on (and derive many advantages from being able to do so).

But I've certainly never felt bound to decide whom to invite to my parties -- or whom to exclude from my parties -- through the Rule of Law. It's hard to see much of a connection between that and bills of attainder. The blog is a big party. You've been here for a while, but now we'd rather not have you. There are very many others you can go to. Hammurabi has his domain, we have ours.

Eugene

~~~~~~~~~~~~~~~~~~~~~~~~~~~

Professor Volokh,

Do you mind if I share our correspondence with others, outside of the community at Volokh Conspiracy?

Regards,

Barry

--
"A blog is not a Just Place. It's just a place." —Caprice

~~~~~~~~~~~~~~~~~~~~~~~~~~~

Please feel free to.

~~~~~~~~~~~~~~~~~~~~~~~~~~~

                Sorry, hit enter too quickly -- please feel free to share my messages to you; as to Orin’s message (and any others’, if there are), please check with them.

~~~~~~~~~~~~~~~~~~~~~~~~~~~
Thank you, Eugene.

Orin, may I also have your permission to share with others, outside of the community at Volokh Conspiracy, your correspondence (in situ below) to me, explaining and defending your decision to ban/block/excommunicate me from participation in the conversations at Volokh Conspiracy?

Regards,

Barry Kort

--
"When it comes to quixotic quests, perhaps none is more intractable than nudging a hopelessly dysfunctional system in the Bokononic direction of enlightenment.'' —Moulton, "Inherit the Windmills"

~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Barry, 

When I wrote it, I didn't intend that my message would be posted publically: It was an explanation to you, not to the world. At the same time, I don't think I have a way to stop you from sharing it if you decide to do so.   So if you do share it, I would appreciate it if you would point out that the message I wrote you was intended for a private audience of you, not a public audience. 

~~~~~~~~~~~~~~~~~~~~~~~~~~~
Hi Orin,

Thanks for getting back to me.

I'll give you several options to think about, Orin.

1.  You can rescind the ban or block and accept my suggestion to discuss the issues that divide us, in the spirit of truth and reconciliation, and in a manner commensurate with an academic culture of collegiality and congeniality.

2.  You can sustain your decision, ipse dixit, and respond (or not) in the venue(s) I select to examine, reflect on, and discuss my unsettling experience at Volokh Conspiracy.

3.  You can sustain your decision, ipse dixit, and suggest an amicable conflict resolution exercise in a mutually agreeable venue apart from VC, supervised and/or moderated by someone with credentials comparable to those of Hal Abelson, whom we would both trust to be fair-minded, constructive, impartial, and equally helpful to both of us.

Do you have a preference, or perhaps a fourth alternative to suggest?

Regards,

Barry

-- 
"Whereof we cannot express a theory, we must narrate a story instead.''  —Umberto Eco

~~~~~~~~~~~~~~~~~~~~~~~~~~~

                Actually, while I normally defer to the judgment of my cobloggers, at this point I’d like to take the matter out of Orin’s hands, unless he strenuously objects.  Prof. Kort, you are a high-maintenance commenter who is doing more to interfere with what we’re doing than to advance it.  You are therefore no longer welcome on our blog.  I don’t want to spend more time discussing this with you.  My guess is that if you select venues to examine, reflect on, and discuss your experience, other readers of those venues will likewise see what I’m seeing here, and will sympathize with our decision to no longer have dealings with you.  But of course it’s entirely up to you (subject to Orin’s request in his 2:24 pm message).  You can say whatever you want to say; I’m just happy that you will be saying it elsewhere.

                Eugene Volokh

~~~~~~~~~~~~~~~~~~~~~~~~~~~
It would be helpful if I understood what you are doing, Eugene.

All it says is "The Volokh Conspiracy is a group blog.   Most of us are law professors."

That says what you are, but not what you are doing.  Evidently I don't apprehend what you are doing.  I searched for a Mission Statement but found none.  You adopted a curious name, "Conspiracy," but I have no clue what your community of bloggers is "conspiring" to do.

Color me vexed and perplexed on that one, Eugene.

Also, it would be helpful if you could put a noun phrase to "see what I’m seeing here" as the word "what" has no antecedent.  Please enlighten me.  What is the proper name of that which you are seeing here?

Regards,

Barry

-- 
"Whereof we cannot express a theory, we must narrate a story instead.''  —Umberto Eco

~~~~~~~~~~~~~~~~~~~~~~~~~~~

Prof. Kort:  As I mentioned, I don’t want to spend more time discussing this with you.

Eugene Volokh

~~~~~~~~~~~~~~~~~~~~~~~~~~~
I acknowledge your state of exasperation, Eugene.

Peace.

Barry

-- 
"Whereof we cannot express a theory, we must narrate a story instead.''  —Umberto Eco

~~~~~~~~~~~~~~~~~~~~~~~~~~~
Banhammerama

With apologies to Joséito Fernández, Julio Iglesias, José Feliciano, and Wyclef Jean

Banhammerama
Guajira Banhammerama
Banhammeraaaama
Guajira Banhammerama


~~~~~~~~~~~~~~~~~~~~~~~~~~~~
It's My Party

Title: It's My Party
Artists: Eugene, Orin, and Moulton
Composer: John Gluck, Wally Gold, Herb Weiner, and Barsoom Tork Associates
YouTube: It's My Party -- Lesley Gore (1965)


Eugene
Nobody knows where Barry has gone
Moulton left the same time
Why was he scolding our band
Is he opposed to some crime?

It's my party, and I'll cry if I want to
Cry if I want to, cry if I want to
You would cry too if he scandalized you


Orin
Playin' my game, testifyin' all day
Leave me alone for a while
'Till Gohmert's dancin' with me
I've got no reason to smile

It's my party, and I'll sigh if I want to
Sigh if I want to, sigh if I want to
You would sigh too if it happened to you


Moulton
Eugene and Orin just walked through the door
Like a liege with his king
Oh what a sudden surprise
Orin's makin' me sing

It's my problem, and I'll cry if I want to
Sigh if I want to, try if I want to
You would try too if it baffleplexed you

It's my problem, and I'll cry if I want to
Sigh if I want to, try if I want to
You would try too if it baffleplexed you

It's My Party

Brenda Walsh as Laverne - Beverly Hills 90210

~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Non Più Commenti

Title: Non Più Commenti (You Shall Comment No More)
Artist: Yehven Kauderwelsch
Libretto: Benjamin Miller
Music: Wolfgang Amadeus Mozart
Original Aria: Non Più Andrai (You Shall Cavort No More)
Opera: Le Nozze Di Figaro (The Marriage of Figaro)


You shall comment no more professor Kort
O' you've perturbed and disturbed my legal blog
O' you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe
you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe

No more will you question us on our logic
though with no better reason, our endeavor is tragic
and though we feel that your math is black magic
Yet, we know that you have your acclaim
Yet, we know that you have your acclaim

It's our game, though it's a shame
we'll ban your name, and proclaim
you are no longer welcome

You shall comment no more professor Kort
O' you've perturbed and disturbed my legal blog
O' you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe
you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe

Now we all dance the fandango
trading thoughts while never questing
to discover, if our precedence
shall uncover bigger question
are we right, or are we mistaken
trading thoughts, while you're forsaken  
while you're forsaken
while you're forsaken
And in mistaking not uncover
the thought of none but one and other
Our montage may seem quite phony
in our reason there's bologna,
strudel, pastries, and minestrone,
fresh spaghetti, and spumoni
mac and cheese and a cigar

It's our game, though it's a shame
we'll ban your name, and proclaim
you are no longer welcome

You shall comment no more professor Kort
O' you've perturbed and disturbed my legal blog
O' you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe
you've disturbed and perturbed my lawyer friends
O' Barry Kort my distinguished Academe

Professor Kort we are victorious
though as inglorious as we are!
Professor Kort we are victorious
though as inglorious as we are!

Non Più Andrai (Le Nozze di Figaro)