Crime & Federalism

Lawyers tend to, um, "exaggerate" about the amount of traffic their blawgs receive.  Aaron of The Stopped Clock has the details.

UPDATE: Evan Schaeffer comments.

When is a blawg and blawg, and not an advertisement?  Context here (Giacalone), here (Cowgill), and here (Schaeffer).  I know the difference when I see it.  Here are some signs:

    *  The blog's address (re: URL) is geared toward gaming Google.

E.g., I might title my "blawg" <MyCityDefenseLawyer [dot] [com]>.  The goal is to attract people using Google to find a My City criminal defense lawyer.  For a lot of complicated reasons, this doesn't work, and by the way, is a sure way respectable bloggers like Ken and me will ignore you.

    * The blog's context is full of key terms - called Google bait - designed to attract Googlers-cum-potential clients.

E.g., I might post this: Here's a story of interest to My City criminal defense and civil rights lawyers.  The hope is that people searching Google for a My City criminal defense lawyer will come upon the blawg.  Again, this doesn't work, and is a sure way to destroy your credibility (and make you appear desperate for clients).  But it's pretty clear what someone who uses those combinations of words is up to.

The harder case, I think, is someone who blawgs to attract business, but in a classier way.  What if a person started a blawg for the purpose of establishing his expertise, which he or she needs in order to convince you to refer him clients.  Does that make the blawg an advertisement?

I've referred at least three cases to lawyers whose blawging impressed me such that I felt comfortable referring clients to them.  So, blawgs are a way to generate business, and thus, in some sense, might be seen as an advertisement.

Then again, most people teach and CLE's and write articles as a way to "make rain."  Is every practitioner-written article presumptively an advertisement.  Would that make sense?  Is that the type of conduct ethical rules should target?

This article gives dozens of good tips on blogging.  Check it out.

I knew C&F's birthday was upcoming, but I forgot about it today until someone kindly reminded me it's been one-year since I started blogging.  I'm deep into a 106/Luce issue, so I don't feel like navel-gazing today.  But happy birthday to C&F.

Anyhow, now's a good time for another consumer-survey.  What do you enjoy most and least about the blog?  What would you like to see more or less of?  E-mail me or leave a comment.  I do take feedback seriously, so your compliments or rants will not be ignored.

Some pretty important people, that's who.

(Via Instapundit)

At last count, there were over 100 legal weblogs. I track about 30, but when my time is limited, I only read about 5.  A huge gap in the legal blog world is that no blog is devoted to 42 U.S.C. 1983.  Sure, I cover most of the big cases.  Indeed, this is the first blog I'd read if I were looking for section 1983 materials.  But as the title of this blog indicates, we primarily cover criminal law.

Assuming a group blog is a partnership (re: two or more persons sharing ad revenue), then a good planner might advise that co-bloggers not to share - unless the blog is making a lot of money.  Sharing the money might mean there is a general partnership.  Thus, to avoid the problems presented below, they'd have to create an LLC (filing in Delaware, of course).  Unless you have a form Operating Agreement, you would have to pay someone to write it, or spend time finding one. (Thankfully, my Business Planning prof made us draft all the necessary documents as part of our class grade).  Then, at tax time, the bloggers would be required to fill out an informational filing form.  And on and on.

Who knew that putting ads up could raise so many issues?   Anyhow, allocating ad revenue might not be worth the costs - again, unless we're talking about a lot of dough. I suspect that David Giacalone is smiling.

Subtitled: I think Professor Bainbridge just made me money (read the full post for the reason why).

[Disclaimer: This is not legal advice.  Rather, I am having fun, thinking aloud about a subject I find fascinating.]

One of my favorite law school courses was Business Planning.  I also took - and enjoyed - Corporations and Taxation of Business Entities.  Who knew that they would have relevance to blogging? 

Enter corporations professor Stephen Bainbridge, who asks:

Is the Volokh Conspiracy a partnership [now that it accepts ad revenue and voluntary compensation - in the form of "tips"- from readers]?

The professor concludes, indeed, that the Volokh Conspiracy is a partnership (and yes, tips from tip jars are taxable income).  He also suggests that the Volokh Conspiracy bloggers not operate as a General Partnership (though he suggests that we buy his book to learn why).  I don't want to steal book sales from the good professor, but assuming a group blog is a partnership, it should be a Limited Liability Company.  Why?

A business has four tax goals and non-planning tax goals.  The four tax planning goals are:

• Avoid double taxation of profits
• Allow full flow through of losses
• Avoid taxation to the entity and to the holders upon transfer of asset from the holders to the entity. 
• Avoid taxation to the entity and holders upon transfer from entity to the holders

Our four non-tax planning goals are:

• Limited liability
• Flexibility and ease in formation and operation of the entity
• Flexibility of allocation of profits and losses
• The ability to take the entity public

The perfect entity would meet all 8 goals, but nothing in life is perfect.  We should thus see which corporate or partnership entity meets most of them.

The C-Corporation is a big failure, since profits are double-taxed (once at the corporate level, and then again upon distribution to the shareholders) and since losses are trapped at the corporate level.  The S-Corporation meets many of our goals.  Unfortunately, though, you must allocate losses in proportion to a persons pro rate share of the corporation.  This means that the rich guy or gal who pays the bills can't deduct the company's losses.  An S-Corporation also restricts who can be a shareholder.  Thus, a group blog probably would not want to be a corporation.  Let's see how partnerships fare.

The three main types of partnerships are: General Parterships, Limited Partnerships, and Limited Liability Companies.  Although GPs and LPs pass our four tax-planning goals, they fail the Purple Elephant of business planning, namely they do not provide for limited liability.

In a GP, all partners are personally liable for the acts of the other partners.  In an LP, at least one partner remains personally liable for the acts of others.  An LCC, however, provides a corporate veil.  Thus, no member (they're called members instead of partners) of an LLC faces personal liability.

This would mean that if one co-blogger defamed someone, e.g., that all partners (in a GP) or at least one partner (in an LP) would be personally liable for damages.  Thus, the plaintiff could attach the partner's house to pay any judgment.

The LLC meets every goal except that you can't take an LLC public, although you might be able to make a tax-free reorganization that could moot this concern.  Anyhow, who's going to take a blog public?  Thus, for-profit group blogs should operate as an LCC.

Anyhow, why did Professor Bainbridge make me money?  Thus far I have been operating this blog at a loss.  But I haven't been writing-off expenses related to it.  But if my blog is indeed a business, then I can begin writing off expenses.

P.S.  No -- I am not going to write-off blogging-related expenses.  Nor am I convinced that this blog is a legal partnership.  (There's no sharing of the ad revenue, which means C&F is not a group of two or more persons engaged in a joint profit-making venture).  Incidentally, there is no sharing of ad revenue because it would be more expensive to share it than for me to keep all of it -- Sharing it would require us to draft documents, file extra tax returns, and ensure that our sharing arragement has "substantial economic effect," etc.

P.P.S. I also think you should buy Professor Bainbridge's book.

Death in the Afternoon has drafted a quiz purporting to tell you what type of blogger you are.  Click here to take it.

In this article, Professor Randy Bezanson (Law, Iowa) argues that size does matter, at least when we're asking whether bloggers should be considered journalists for privilege purposes.

Ultimately, the issue comes down to whether bloggers act like traditional journalists, says University of Iowa law professor and First Amendment specialist Randall Bezanson. Simply expressing opinions to a tiny audience doesn't count, he says. If so, "then I'm a journalist when I write a letter to my mother reporting on what I'm doing. I don't think the [constitutional] free-press clause was intended to extend its protections to letters to mothers from sons."

I have to believe that Professor Bezanson was quoted out of context.  Is his argument really that the size of the audience should dicate whether privilege attaches?  If so, we're all in a lot of trouble.

Bashman's How Appealing is the most widely-read pure law blog.  (I realize The Volokh Conspiracy gets more visitors, but they have a law/politics flavor).  But Bashman "only" gets 3,000 to 4,000 visitors a day (and that number includes random googlers who reach his site and promptly leave, and people who check in his site two or more times a day and thus are double or triple-counted).  On the other hand, the National Enquirer has a circulation of nearly 3 million copies.  Probably the second most-read-blog would be Professor Berman's Sentencing Law & Policy, which comes in with - again "only" - 3,000 visitors a day.

Under Professor Bezanson's argument, no legal blogger should be able to claim journalists' privilege, since none of us have the (comparatively) large audience of mainstream media outlets.  Does this mean that Professor Berman, if asked in court, should be required to tell the government who sent him the famous DOJ memo?  But a columnist from the National Enquirer should be entitled to claim privilege?  Does it mean that dirt dealers from E! deserve more protection than Howard Bashman?  Outrageous.

It's odd that free speech proponents tell us not to analyze the content of speech (that would be censorship), while also demanding we look to the circulation of speech.  Or maybe bloggers just aren't worthy of the protection we would give to writers of the Weekly World News.

(Story via Professor Yin).