Today, January 13th, marks the fifth anniversary of this blog, which began in January 2003. Although Balkinization started as a solo effort, it soon became a group blog, with a group of writers I think are second to none in the legal blogosphere. I am grateful to all of the wonderful people who have contributed to the blog over the years, as well as our many regular readers and commenters, who have helped created an intellectual community. In the past five years, we have had over 3 million visitors, and 4.5 million page views.

Blogging as a medium can be used for many different kinds of writing. Most blogging still remains highly personal, with only a small part of the blogosphere devoted to politics, and an even smaller part devoted to law.

Voting on whether or not to lift the restraining order (legal jargon for calling off the strike) will take place in person at two meetings, one in NYC and one in LA.

If you cannot attend the meetings, you may vote by proxy. Today, there has been some confusion on what "voting by proxy" means. Faxing in a proxy vote form is NOT the same as voting. You are designating a fellow WGA member to vote

For clarity -- and because not everyone could get to one of the meetings last night in NY or LA -- here's a handy little FAQ for some of the questions we're hearing.

What's the 48 hour vote for again?

It's a vote on whether or not to lift the strike (which in the Constitution is called "the restraining order".) If the vote passes, writers can go back to work.

It's not a vote on the contract,

Orin Kerr found that law review citations to our friends at the Volokh Conspiracy have been increasing significantly over the years. Using the same methodology (citations to balkin.blogspot.com in Westlaw JLR database limited to each year) I discovered the same thing is true of Balkinization.

In 2003 we received 1 cite; in 2004 3 cites; in 2005 14 cites; in 2006 36 cites; and in 2007 49 cites. As Orin reminds us, some law journals have not yet published all their 2007 issues, so the final number for 2007 may be slightly higher.

Rachael Ray wrote on her blog about her participation in the 2007 DogCatemy Awards. This sounds like one heck on an event. It is hosted by North Shore Animal League America, "the world's largest no-kill animal shelter."

This past Wednesday, I entered a contest over at the great web site Surviving Grady, as Red and Denton asked fans to write in with "the one person you'd love to spend a day with at Fenway Park." It could be anyone, living or dead, and you had to explain why. The winner gets the new 6-DVD set, "The Essential Games of Fenway Park."

The site got hundreds of entries, and the boys had a tough time narrowing it down to five. So, they expanded it to ten, and this morning, they announced on their site the finalists.

And my entry is one of the ten finalists.

I'm really blown away that it was chosen. If you go over to Surviving Grady, you can read it. It's not hard to figure out which is mine, but if you go to the fifth of the ten, "Dear Friend," that's mine.

Emotions are flying fast and furious around this issue: do we hold a ratification vote before we lift the strike? Or do we go back to work as quickly as Monday, and hold the vote afterwards?

To get our position up here as quickly and accurately as possible, we decided to do separate grafs signed by each of us, and combine them into one post.

We're all coming at this from different perspectives

The headlines -- most of them, anyway -- are saying that Senator Clinton beat Senator Obama 51% to 45% in the Nevada caucus contest today. Except that some reports say Senator Obama "won," 13 delegates to 12. What's up? There's a debate going on over at Matt Yglesias's blog (and elsewhere, too, I venture to guess -- especially among the spinners).

Well, there are at least three different metrics by which today's contests could be evaluated.

Over at Law Librarian Blog, Joe Hodnicki has some statistical evidence about the assimilation of blogs into legal literature, as I discussed previously:

According to this estimate, blog citations in law reviews and court opinions have grown from about 70 in 2004 to over 500 in 2007 (and still counting since many law reviews have not completed their 2007 publishing cycle). I believe it is fair to say that for 2005 and 2006 blog citations probably grew exponentially on a document count basis, doubling every year.
Hodnicki speculates that the rates of increased citations will level off fairly soon, reflecting a maturation of the system.

Meanwhile, Matt Berns, a 2L at Georgetown, writes that we can't understand this phenomenon without taking into account law students, who are from a younger generation and more accepting of blogs as sources of information:

Everyone here at The Sports Flow is encouraging you to get out and vote at your states primary or caucus today. Exercise your right to vote, there is nothing more fundamental than our very own right to vote. This year, your vote matters more than ever. More and more people are turning out to vote, people want change. Our country is pretty divided right now, so your vote does indeed matter more than ever this year.

John Gillis finally has his act together, sort of. He's got a good job, a lady friend and his alcoholism under control. Then he runs into his long lost cousin Sextus, the author of a thinly disguised work of fiction about their family. John thinks he knows all there is to know about their ugly family secrets until a night of drinking with Sextus reveals the horrible truth.

First my list of grievances...

I spent the better part of the novel trying to keep everyone straight in my head. Here's the rundown:

I've been avoiding a few big-time classics for awhile, mainly because they are so long.

I've decided to buck up and read at least one of them, and, since I'm so bad at making decisions, I thought I'd leave it up to you. With that I bring you Reading Faceoff, Round One: Classics Edition. Voting ends in two days, so vote now! Feel free to comment to further explain your choice.

UPDATE: Voting is closed! I didn't mean to delete the poll, but I did and I guess life just sucks, doesn't it? Take my word for it: Anna Karenina won, with a whopping (not really whopping, but I like the word) 40% of the vote.

I don't expect to have finish it too too soon...procrastination is still my forte, and I've been putting this one off for years. So, expect a post on it...soonish.

This email was just sent to strike captains. It contains info on the NegCom vote, the Board and Council votes, the pending vote to lift the strike, and the pending vote to ratify the contract.

DEAR STRIKE CAPTAINS,

This morning, the WGA Negotiating Committee unanimously and unconditionally recommended the terms of the proposed 2008 MBA to the WGAW Board and WGAE Council. The Board and Council

I'm in China this week, attending a conference on antidiscrimination law organized by the Yale Law China center and Sichuan University held at Chengdu in Sichuan province.

Speaking of discrimination, a law student who picked me up at the airport explained to me that he had heard of Balkinization in China but that, at least in Chengdu, the site was blocked. When I got to the hotel I checked and sure enough, he was right.

(I was able to determine that the site is still up in the United States by using a proxy server).

It is not entirely clear why Balkinization is sufficiently subversive that its content is blocked in China; however, Interent blocking schemes are often arbitrary.

In a recent exchange on NY Times v. Sullivan and the Mitchell Report, Jack Balkin and Sanyd Levinson assert that Roger Clemens cannot "clear his name" by suing George Mitchell for libel, assuming he never took steroids or HGH. I guess I don't understand why. Mitchell is a private citizens, who has published a report for private entity -- Major League Baseball -- it is a "Report to the Commissioner of Baseball of an Independent Investigation." So I do not understand why Clemens cannot sue Mitchell, MLB, or Bud Selig. The report is copyrighted by the "Office of the Commissioner of Baseball." I assume the copyright holder and the author could be sued for libel. I am sure I am missing something here, so please explain the reasoning. He might not win under Times (I suspect he would not be able to win) but I do not see why he could not sue any of these parties.

Jack and Eric Posner have a dialogue up on Bloggingheads about the government's expanding surveillance powers and whether we should be concerned about them. Well worth your 51 minutes. Stay until the end, when Jack discusses the all-important prospect of Watching the Watchers.

Like Mary Dudziak, I’m skeptical about Brian Leiter’s latest citation rankings of law professors. In response to Dudziak’s concerns about the study, Leiter claims that “The study is a ‘true measure’ of what it purports to measure, namely, impact in legal scholarship.” Leiter offers his citation study as an improvement on reputation rankings because, unlike the latter, it is based upon objective factors. But how much of an improvement is it?

Last night I received a very nice email from Victoria G., a nice 10-year-old girl from Massachusetts, who also happens to be a Red Sox blogger. Victoria alerted me to the fact that she is in the running for the position of Captain of Red Sox Kid Nation.

Red Sox Kid Nation currently having the vote to determine the final 12 Captains, and there are 25 kids currently in the running, between the ages of 10 and 14, including Victoria. They were originally selected from a pool of 700 contestants, from all over the United States. Victoria has done some wonderful things to help people in her neck of the woods, like raising money for breast cancer research, helping her local baseball team and helping feed hungry people. And of course, she is a dedicated fan of the Red Sox.

To find out more about the Red Sox Kid Nation Captains contest and how to vote for Victoria, go here.

A recurrent discussion, provoked especially by Brian Tamanaha in this venue, has involved explanations of judicial behavior. Many political scientists view judges as simply "politicians in robes" who vote to implement their preferred views on public policies. Many law professors believe that judges operate within what Ronald Dworkin termed "the forum of principle." One might, of course, argue, as Jack and I have, that judges can be explained by reference to their "high politics," which is distinguishable from a "lower" kind of politics that focuses, for example, on helping out one's own political party.

From Senator Schumer's explanation of why he will vote for Judge Mukasey:
This afternoon, I met with Judge Michael Mukasey one more time. I requested the meeting to address, in person, some of my concerns. The judge made clear to me that were Congress to pass a law banning certain interrogation techniques, we would clearly be acting within our constitutional authority. And he flatly told me that the president would have absolutely no legal authority to ignore such a law, not even under some theory of inherent authority under Article II of the Constitution. He also pledged to enforce such a law and repeated his willingness to leave office rather than participate in a violation of law.

Paul Caron did a study of law blog traffic rankings for the last year. Brian Leiter, who lands in the top fifteen twice for his two blogs, notes:
Curious that four of the top five have almost nothing to do with law; four of the top five are right-wing blogs; and three of the top five have almost no intellectual content. Welcome to the blogosphere!I think, in fact, that this is pretty much what we should expect. Blogs directed at popular audiences generally get the largest traffic. Specialty blogs, including blogs that specialize in delivering legal expertise, are usually niches, generating relatively low traffic that is nevertheless useful to the communities that read them.

Clean the house
Go to Doctors
Vote
Pick up mom and aunt from airport

Addendum: Baby is doing well. We have another ultrasound next week to establish the weight of the baby. The doctors visits are going to be every week now as we head into the final stretch. Speaking of heads, baby's head is pointed down preparing to engage.

Printsy on the Etsy Homepage!
Originally uploaded by mlee.etsy.com Something that I have been thinking about but never getting off my butt to do for about oh two years now has finally happened. Printmakers on Etsy finally have their own street team named Printsy. I came up with that one half as a joke and it took.

Are you a printmaker that sells your prints on Etsy? Would you like to get together with other printmakers to get the word out about original prints versus reproductions? Help show that there very much is a difference between the two and that they can co-exist. Then please consider joining our group.

You can contact me or sherisdesthelion via Etsy convo to find out more information about this growing group of artists.

Jack is back, in his ninth house and fifth school in his brief eleven years, and, as the title suggests, things can go either way, heads or tails, this year, too.

Jack and Eric Posner have a new Bloggingheads episode up, dealing principally with Bush's aggrandizements of executive power. Characteristically excellent and provocative, although supiciously truncated at the end. . .

I have some minor quibbles, however:

Jack says at one point that all Presidents since Nixon have claimed that the War Powers Resolution is unconstitutional. To the extent Jack is referring to the principal provision of the WPR, prohibiting the President from engaging in military hostilities for more than 90 days without congressional authorization, the notion that Presidents have uniformly condemned its constitutionality is often asserted, but that don't make it true. The statute is plainly constitutional, in my humble opinion; but more to the point, it's simply not the case that every President has claimed it's unconstitutional. Nixon did so before the law was enacted; Reagan suggested it at one point; and John Yoo (Bush's surrogate, presumably) stated it in his September 25, 2001 memo. But that's it. The Carter Administration, for instance, specifically concluded that it was constitutional, and the Clinton Administration carefully avoided saying otherwise (going to great trouble, for instance, to try to argue that the WPR was satisfied in the case of Kosovo).

Future Majority, a blog that reports on youth voting, put together a set of tips for reporting on "the youth vote."

Tip #1 is my favorite:
The youth vote is not synonymous with students. In fact, students make up only a small part of the eligible youth vote. Only 21% of all 18-29 year olds are currently attending a college or university. That means that when you report on "students", you are leaving out the other 79% of all the individuals that make up the "youth vote." These people serve in our military, are struggling to raise families - and yes, have very different concerns from college students. I understand that makes it difficult for you to cram them into a cookie-cutter story about student aid activism and tuition costs, but you do them and your readers and our democracy a disservice when you limit your coverage to students.

From tonight's captains' bulletin:

To cast your ballot in person: Vote at the Writers Guild Theater, 135 S. Doheny Drive 90211. Tuesday, February 12, 2008 from 2:00 pm - 6:00 pm.

If members can't cast a ballot in person: Proxy ballots are available. To vote by proxy, download this form and fax to 323-421-9177. Proxies must be faxed in by Tuesday February 12, by 2 pm, or dropped off at the WGAW

I spent yesterday in New York, in part to be interviewed by Bill Moyers for the edition of the Bill Moyers Journal that is being nationally broadcast on Friday, December 21 (I think at 9PM in most places on Eastern Standard Time, 8:00 in Texas and other places on Central Time), with repeated airings thereafter. I'm hoping that some of the viewers will feel like responding to my "dedicated blog," http://www.utexas.edu/law/faculty/slevinson/undemocratic/blog/ and, of course, I would welcome anyone from Balkinization who would feel like responding.