Archives For blogging

shepherd-joannaTruth on the Market is delighted to welcome our newest blogger, Joanna Shepherd. Joanna is a Professor of Law at Emory School of Law and holds an adjunct position in the Emory Economics Department (where she also earned her PhD). At the law school she teaches Torts, Law and Economics, Analytical Methods for Lawyers, and Legal and Economic Issues in Health Policy. She also frequently teaches economics courses to law professors and federal and state judges.

Joanna is also a senior scholar at the International Center for Law and Economics.

Joanna’s research focuses on various law & econ topics. Her recent research has examined issues related to the healthcare and pharmaceutical industries, tort reform, litigation practice, and judicial behavior. Her works has appeared in the Michigan Law Review, Vanderbilt Law Review, Southern California Law Review, New York University Law ReviewDuke Law JournalUCLA Law Review, The Journal of Legal Studies, The Journal of Law & Economics, The American Law & Economics Review, Health Matrix, and The American Journal of Law & Medicine, among others. Joanna is also an author of the textbook, Economic Analysis for Lawyers, with Henry Butler and Christopher Drahozal. Her research has been discussed in numerous newspapers, including the Wall Street Journal and the New York Times, and has been cited by several courts including the Supreme Court.

You can find links to Joanna’s scholarship on her SSRN page.

Welcome Joanna!

Profile-Pic-3-professional-200x300Truth On the Market is pleased to announce that Kristian Stout of the International Center for Law and Economics (“ICLE”) has joined our team of writers. Kristian was recently hired by ICLE as Associate Director for Innovation Policy, bringing with him over ten years of experience as a technology professional and entrepreneur. In his role at ICLE, Kristian’s work is focused on the areas of Innovation, Data, Privacy, Telecom, and Intellectual Property.

Kristian has previously been a lecturer in the computer science department of Rutgers University,  is frequently invited to speak on law and technology topics, and has been published in law journals and legal treatises on intellectual property and innovation policy. Kristian is an attorney licensed to practice law in New Jersey and Pennsylvania, is a partner at A&S Technologies, a software services firm, and sits on the board of CodedByKids, a nonprofit organization that provides STEM education to underprivileged children.

Kristian graduated magna cum laude from the Rutgers University School of law, served on the editorial board of the Rutgers Journal of Law and Public Policy, and was awarded a Governor’s Executive Fellowship from the Eagleton Institute of Politics.

He is excited to join the TOTM team, bringing with him a fusion of technological-optimism and a belief in the power of free markets to enhance the welfare of all humanity.

Over at the Center for the Protection of Intellectual Property (CPIP), Mark Schultz has an important blog posting on the Mercatus Center‘s recent launch of its new copyright piracy website,  The launch of this website has caused a bit of a tempest in a teapot with a positive report on it in the Washington Post and with a report in the Columbia Journalism Review pointing out problems in its data and errors in its claims.  (It is a bit ironic that a libertarian organization is having trouble with the launch of a website at the same time that there is similar reporting on troubles of the launch of another website on the opposite side of the political spectrum, Obamacare.)

Professor Schultz, who is a Senior Scholar at CPIP and a law professor at Southern Illinois University, makes many important points in his blog posting (too many to recount here).  One of his more important identifications is that the website reflects an unfortunate tendency among libertarian IP skeptics, who seem to fall victim to an error that they often identify in leftist critiques of the free market, at least on non-IP issues.  That is, some libertarian IP skeptics seem all to quick to deduce conclusions about actual, real-world business models from solely theoretical knowledge about what they think these business models should be in some “ideal” world.

Professor Schultz also identifies that, despite protestations to the contrary, Jerry Brito has explicitly framed his website as a “blame the victim” defense of copyright piracy — stating explicitly on Twitter that “Hollywood should blame itself for its piracy problems.” Consistent with such statements, of course, conventional wisdom has quickly gelled around the website that it is in fact a condemnation of the creative industries’ business models.  (Professor Schultz backs up this point with many references and links, including a screen grab of Jerry’s tweet.)

Professor Schultz ultimately concludes his important essay as follows:

perhaps the authors should simply dispense with the pretext. All too often, we see arguments such as this that say ‘I think copyright is important and abhor piracy, BUT . . . ‘ And, after the “but” comes outrage at most any attempt by creators to enforce their rights and protect their investment. Or, as in this case, advice that excuses piracy and counsels surrender to piracy as the only practical way forward. Perhaps it would be less hypocritical for such commentators to admit that they are members of the Copyleft. While I think that it’s a terribly misguided and unfortunate position, it is all too respectable in libertarian circles these days. See the debate in which I participated earlier this year in Cato Unbound.

In any event, however, how about a little more modesty and a little more respect for copyright owners? In truth, the “content” industry leaders I’ve met are, as I’ve told them, way smarter than the Internet says they are. They are certainly smarter about their business than any policy analysts or other Washingtonians I’ve met.

The movie industry knows these numbers very well and knows about the challenges imposed by its release windows. They know their business better than their critics. All sorts of internal, business, and practical constraints may keep them from fixing their problems overnight, but it’s not a lack of will or insight that’s doing it. If you love the free market, then perhaps it’s time to respect the people with the best information about their property and the greatest motivation to engage in mutually beneficial voluntary exchanges.

Or you can just contribute to the mountain of lame excuses for piracy that have piled up over the last decade.

This is a compelling call to arms  for some libertarians doing policy work in the creative industries to take more seriously in practice their theoretical commitments to private ordering and free enterprise.

As the blogging king (Instapundit) is wont to say: Read the whole thing.

Over at Cato Unbound, there has been a discussion this past month on copyright and copyright reform.  In his recent contribution to this discussion, Mark Schultz posted an excellent essay today, Where are the Creators? Consider Creators in Copyright Reform, that calls out the cramped, reductionist view of copyright policy that leads some libertarians and conservatives to castigate this property right as “regulation” or as “monopoly.”  Here’s a small taste from his essay:

I am genuinely puzzled when copyright discussions treat creative works if they are a pre-existing resource that the government arbitrarily allocates. They are not. They aren’t an imaginary regulatory entitlement, such as pollution credits. They aren’t leases or mineral rights on public land handed out to political cronies. Creative works are, instead, the productive intellectual labor of private parties. Real people make this stuff.

At this point in the discussion, a common rhetorical move is to reject what some scholars describe as the romantic myth of authorship. Copyright skeptics point out that authors build on the work of others and that many creative works are the work of corporations, not individuals. This argument was provoked by many decades—a couple centuries, really—of rhetoric that put the individual author on a pedestal. Even if one concedes that authors have, perhaps, been idealized, taking them for granted goes too far.

The absence of creators from the critique of copyright is one of many reasons I doubt the political (and moral) appeal of much of the case for copyright reform we have heard from a few libertarians and conservatives. At the risk of dredging up tiresome memories from the recent presidential election, the argument over “you didn’t build that” was very familiar to me as a scholar of copyright. In both instances, there is a divide between those who value (or, even, romanticize) individual achievement and those who emphasize how much that achievement depends on a social context.

This follows Mark’s earlier and equally excellent essay, Copyright Reform through Private Ordering, in which he identifies how defining and securing copyright as a property right is consistent with and advances the private-ordering regimes embraced by advocates of the free market.  Again, here’s a small taste:

Like other forms of property, copyright thus represents an invitation to a transaction and an opportunity to bargain. This opportunity for parties to transact and bargain is one of the key differences between property and regulation. A regulator has a duty to enforce the law—and if a regulator chooses not to enforce, then a court may order him to do so. Copyright owners need not enforce their rights, of course. Moreover, it is perfectly legitimate to offer a property owner money to forgo their right to enforce their copyrights; such commercial transactions are really the whole point of copyright. Make the same offer to a regulator, and you go to jail.

Read these essays in their entirety—both of them are here and here—as Mark is doing a great job in what is very brief and limited blogging space in providing both the important data and the principled arguments for how copyright is fundamentally consistent with and advances the aspirations of the free market and limited government.  This follows on his earlier, excellent blog posting at the Copyright Alliance that touched on similar themes, Copyright, Economic Freedom, and the RSC Policy Brief.

DISCLOSURE: Mark and I are both on the Academic Advisory Board of the Copyright Alliance.

The apparent perils of antitrust blogging:

Last summer, professor Enrique Dans wrote a blog post about the powerful copyright lobby in Spain.  One of his arguments is that Promusicae, the well-known recording industry outfit, is violating antitrust laws. The group has set up a digital system to send music to radio stations for airplay, which the professor says is unfair since non-member companies and independent artists can’t join.

The music group was not happy with this accusation and has filed a lawsuit against the IE Business School professor, claiming that he defamed the group and threatened their honor.

Through the lawsuit Promusicae demands 20,000 euros in damages and a public apology. They claim that the accusations are false and state that “some of the information supplied on the website is false and violates the honor and good name of the group.”

Here is the allgedly offending blog post.  HT: Competition Policy International.


Ideoblog Archives Available

Josh Wright —  22 January 2012

I’ve received quite a few emails from TOTM and Ideoblog readers on this topic and so I want to highlight for our readers that we have Larry’s Ideoblog archives available at the link featured across the top bar under the Truth on the Market banner (click here).  They are also available on the left hand side of the blog by topic.  It will not surprise Larry’s friends and colleagues that this double-feature of Ideoblog archives was a one of Larry’s conditions for the Ideoblog / TOTM merger.

The Green Bag recently introduced its Journal of Law, which has in turn introduced “The Post.”   The Post features what the Green Bag describes as the “best in legal blogging.”  This is a pretty neat idea, like most everything the Green Bag does.  How does The Post select the best in legal blogging?  Judges with expertise in law, blogging, or both.

These experts represent a mix of academics and practitioners, have some experience blogging themselves (although they will not be encouraged to nominate their own writing), and – most importantly – are voracious, appreciative, and intelligent consumers of legal blogs.  They are donating their good judgment and eagle eyes in helping to curate our selections. Throughout the year, they will be nominating posts to be voted on by the panel; as editor-in-chief of The Post, I will determine how many votes are required for a post to be featured here, and I will aim to stay within a yearly range of 5-20 featured posts with a
minimum of arbitrariness or capriciousness.

I’m extremely pleased that the inaugural issue of The Post has recognized a series of my recent blog posts focusing upon Google and antitrust.  Its always nice to know somebody is reading; and it is also really flattering to be included in a list of some of the legal bloggers I read on a regular basis.  Here’s the set of bloggers and blogging recognized in the first issue of The Post:

So Much For the Commerce Clause Challenge to Individual Mandate Being “Frivolous,” The Volokh Conspiracy, July 18, 2010, by Randy Barnett

“Let ’em Play,” Volokh Conspiracy, July 18-22, 2011, by Mitch Berman

Healthcare and Federalism: Should courts strictly scrutinize federal regulation of medical services?, PrawfsBlawg, Aug. 14, 2011, by Rick Hills

Why John Edwards Probably Did Not Commit A Crime, Regardless of His Motives or Those of The Donors, Election Law Blog, June 4, 2011, by Richard Pildes

Legal Theory Lexicon: Legal Theory, Jurisprudence, and the Philosophy of Law, Legal Theory Blog, Apr. 24, 2011, by Lawrence B. Solum

Antitrust Remedies, Truth on the Market, May 10, July 11 & 13, 2011, by Josh Wright

The “Antitrust Remedies” series of posts include the following:

Barnett v. Barnett on Antitrust

Searching for Antitrust Remedies, Part I

Searching for Antitrust Remedies, Part II

If you didn’t read them the first time around — this seems like as good a time as any!  And check out the other legal blogging in The Post.


We’re delighted to be joined for the next couple of weeks by guest blogger, Hal Singer.

Hal is Managing Director and Principal at Navigant Economics. He has written, thought and advised extensively on antitrust, finance and general regulatory issues.  His SSRN page is here, and it includes co-authors like David Teece, Dan Rubinfeld, Jerry Hausman, Greg Sidak, Bob Crandall, and Bob Litan, among many others. He is the co-author of the book Broadband in Europe: How Brussels Can Wire the Information Society (Kluwer/Springer Press 2005). and his article have appeared in, among there, American Economics Association Papers and Proceedings, Harvard Journal of Law and Technology, Journal of Industrial Economics, Journal of Network Industries, Journal of Regulatory Economics, Review of Network Economics, Topics in Economic Analysis and Policy, and Yale Journal on Regulation. He has also served as Adjunct Professor at Georgetown University’s McDonough School of Business.

On the policy front, his essays have appeared in several leading newspapers and magazines, including Antitrust, Forbes, The Economist’s Voice, Harvard Business Review, Health Affairs, The Milken Institute Review, Regulation, The Wall Street Journal, and The Washington Post. His M.A. and Ph.D. degrees in economics are from the Johns Hopkins University and his B.S. magna cum laude in economics is from Tulane University.

Perhaps of particular interest to our readers, one of Hal’s most recent articles (with Gerald Faulhaber) is on wireless broadband competition and the FCC’s most recent wireless competition report, a not-uncommon subject around here (see, e.g., here).  It’s an excellent paper, and you can find a link to the article and a podcast of Hal discussing the paper with Jerry Brito here.

We look forward to a stimulating set of posts from Hal — and he isn’t shy, so don’t hesitate to weigh in in the comments!

Welcome Digitopoly!

Josh Wright —  28 September 2011

This looks like a great new blog on economics and technology from a top notch group of economists:  Erik Brynjolfsson, Joshua Gans and Shane Greenstein.  Welcome Digitopoly.  Now added to the blogroll.  Here’s their description of the blog:

This blog was established by Professors Erik Brynjolfsson, Joshua Gans and Shane Greenstein. They noticed that there were many blogs devoted to digital developments and consumer products but the selection focussing on economic and business aspects of the digital world was very limited. Digitopoly’s mission is to provide an economic and strategic management perspective on digital opportunities, trends, limits, trade-offs and platforms; expanding commentary in this important space.

The blog’s name — Digitopoly — reflects our broad interests in the impact of digital technology on competition. While, in some cases, our concern is the preservation of competition in the face of pressures toward monopoly, in others we see opportunities for greater competition and welfare benefits.

Our logo is deliberately iconic. The heavy set line in the graph could represent Moore’s Law (for processing power as time progresses) or Metcalfe’s Law (for the value of networks as more join).  It overtakes the simple linear trend represented by thin, broken line. This reflects the idea that linear ways of thinking rarely serve us well in the digital economy.

Check it out.

TOTM on the Rise

Josh Wright —  24 July 2011

Its been just over a year since TOTM remodeled and merged with Larry Ribstein’s Ideoblog.  There have been a few other major changes between then and now: some changes in personnel and a  few major blog symposia to start with.  Its always difficult to judge how a blog is “doing.”  At least part of a blog’s success is measured by the audience it reaches.  External feedback is useful;  and along those lines, Paul Caron’s law professor blog rankings are out once again.  This time, Professor Caron’s rankings bring some good news for TOTM.

TOTM readers may or may not know that the blog — being without site counter for some time — was not in these rankings until quite recently.  We come in at #17 overall (as measured by visitors; #18 by page views).   It is also worth noting that we are now the leading business-focused law blog in visitors, and second (but closing) only to the Harvard Corporate Governance Blog in page views.   We’re also, to my knowledge, the leading blog with a significant focus on antitrust issues.  Scanning the data, we are also posting some astronomical growth numbers — 365% and 506% over last year’s figures for page views and visitors, respectively.  OK, OK, if you were paying attention to the beginning of the post, you know this is largely because we didn’t have a site meter for much of last year.  Nonetheless, our readership is expanding and, as top-ranked law professor / blogger Ann Althouse advises her readers: “Check out some of those other blogs, especially ones that are acquiring new readers. They might be kind of good.”   We hope you’ll think so.

Thanks to all of our readers and commenters.  Also on the blog front, we are looking to make an announcement on our next TOTM symposium.  See the menu on the right hand side for links to prior TOTM symposia or the tab at the top for links to our last “free to choose” symposium on behavioral law and economics.

DSK and media bias

Larry Ribstein —  5 July 2011

Bret Stephens wonders why he and fellow journalists ignored the fact that “[a]lmost from the beginning, there was something amiss in the case of People v. Dominique Strauss-Kahn.” He speculates:

I did enjoy the thought of this mandarin of the tax-exemptocracy being pulled from the comfort of his first-class Air France seat and dispatched to Riker’s Island without regard to status or dignity. And I admired the humble immigrant who would risk so much for the sake of justice. And I smiled at the spectacle of France’s Socialists finding their would-be savior exposed by American prosecutors when they had been hypocritically observing a code of silence about his habits. And I liked seeing the IMF red-faced for whitewashing DSK’s previous escapades.

* * *

He adds that

this is as good an opportunity as any to ask where else we might be committing similar blunders. The climate change obsession, with its Manichean concept of polluting corporations versus noble eco-warriors? The Wall Street obsession, with its belief the boardroom boys were criminally guilty of the financial crisis? The China obsession, with its view that the Middle Kingdom is destined to overtake the U.S. in global economic and political clout? The Israel obsession, with its notion that if only Jewish settlements were removed from the West Bank peace would break out throughout the Middle East?

In each of these cases, the media (broadly speaking) has too often been guilty of looking only for the evidence that fits a pre-existing story line. * * *

But anecdotes are not data—which happens to be the world’s most easily neglected truism. Also true is that sloppy moral categories like the powerful and the powerless, or the selfish and the altruistic, are often misleading and susceptible to manipulation. And the journalists who most deserve to earn their keep are those who understand that the line of any story is likely to be crooked.

I discussed these issues five years ago in my Public Face of Scholarship. I found a rich economics literature analyzing media bias:

  • Michael Jensen observed that people “want sensationalist stories that present choices between good and evil and simple solutions rather than complex explanations.”
  • Core, Guay and Larcker studied the journalist coverage of executive compensation, noting that the press emphasizes sensationalism rather than realistic analysis of the extent of excessive compensation.
  • Gregory S. Miller, The Press as a Watchdog for Accounting Fraud, 44 J. ACCT. RES. 1001 (2006) found that the press emphasized sensationalist elements in stories about accounting fraud.
  • Gentzkow & Shapiro, Media Bias and Reputation, 114 J. POL. ECON. 280 (2006) argue that the news media seek to confirm what the audience thinks it already knows rather than risk being rejected. 
  • Mullainathan & Shleifer conclude that journalists feed audience biases.
  • David Baron reverses causation, arguing that media bias originates with left-leaning anti-market journalists rather than with an effort to serve the audience.

I discussed these theories by way of arguing that bloggers can help correct these tendencies.  That may have happened in this case, but being biased in favor of the accepted wisdom here I didn’t follow any bloggers who might have caught on. 

All of this shows that media and audience bias can be very sticky, and we need a lot of different information sources to combat it.  In other words, free speech is important.  This includes not only bloggers, but for-profit corporate speech, which can cut against some of the biases Stephens referred to.

Seems I need to write a post like this every once in a while.

I really appreciate comments, particularly including when they disagree with the posts.  These comments are what distinguishes an interactive blog from a passive website.  I’m glad people are willing to take the time and effort to engage in the discussion.  The vast majority of our readers have worthwhile contributions.

But every once in awhile we get the other kind.  Like yesterday:  a completely baseless (and untrue) accusation that I had a financial conflict regarding one of my posts.  The comment was not only insulting, but even worse contributed nothing to the discussion.  The comment now sits in trash.

So for the small fraction of our readers who need to be reminded: be civil and be substantive.  This is our blog.  If you want the other kind, get yer own.

For the vast majority:  keep the comments coming.