Blawg Review # 242

Welcome to Blawg Review.  Cold, rainy, prematurely wintry greetings from metropolitan New York.

No exclamation point.  It has been that kind of year, it seems.  Nothing depressing about it, or it shouldn’t be.  That’s just life, and in particular that’s the way life feels at that dreary moment when you’re living it clustered around the winter solstice.

And if I were perkily to emit that Chanukah, the festival of rededication, is “all about” pulling oneself up by one’s bootstraps in the face of dread and gloom, for of course a little light will banish a great deal of darkness, I would not be the first to say it; and it’s not as if cliché is too good for LIKELIHOOD OF CONFUSION®.

But no.  It is not going to be that kind of Chanukah Blawg Review this year.  Let’s instead think a little less loftily, but maybe more fruitfully, about where we are.  Where we’ve been since last Chanukah.  And what we’re doing, blawgily speaking.  And why.

Is there a Chanukah concept in that?  Rabbi Avraham Chaim Feuer says there is — and it seems to be a very appropriate one for this moment, for this blog, even, and for the constellations of blawgs that still form and swirl around us:

Only recently — barely a hundred years have elapsed since the invention of the lightbulb — has Edison’s genius transformed [mankind’s formerly] bleak [benighted] situation. Today, mankind’s blindness is banished by billions of powerful and enduring bulbs. Artificial light has become so economically feasible that even the poorest can afford to squander it. Everything glows in the Age of Illumination. . . .

Centuries ago, prior to the Age of Illumination, people did not waste light. A fire with no function was promptly extinguished, and the fuel was carefully hoarded. If the flames of the menorah burned constantly without apparent function, it must have been that this was not light made to shed external illumination, but rather to symbolize the inner glory associated with Godliness.

For this reason, it is prohibited, according to Halacha, or Judaic Law, to use Chanukah candles as illumination for any ordinary activities. Such utility would strip the candles of their essential message — that there is more than one kind of light, that of the soul besides that of the eyes.

“The time for lighting the Chanukah candles is from sunset until the time that the traffic ceases in the marketplace,” states the Talmud (Shabbos 21b).  As long as men are involved in the affairs of the marketplace, as long as they are engaged in the pursuit and purchase of all their eyes see and their hearts desire, then they are still in need of the lesson of the Chanukah menorah.

No doubt, our era is the age of the eye and the age of the market. This is self-evident and does not need further elaboration. When before in history has the consumer been flooded with such a staggering array of tempting products, wrapped in millions of dollars of “eye-catching” advertisement? When before has the human eye been so constantly exposed to the distracting sights of the stage, screen, and street? In the Age of Illumination, the outer lights have all but blotted out the inner lights.

It is time to gather around the . . .  candles of the menorah, and give the inner lights the opportunity to convey their soft, subtle, penetrating message.

So, let’s sit down — come in out of the wet; can I get you a hot drink?  No, no latkes, sorry — trying to stay away from the heavy stuff, since the operation.  We do have these nice dreidel-shaped cookies… here.  Say a brocha.  Nice.

We can sit by the fire.

So, yes, last year at this season LIKELIHOOD OF CONFUSION® hosted Blawg Review for the second time.  It went over very well, and I’m grateful for the recognition.  At the end of the day (which comes mighty fast in mid-December) isn’t being noticed for having something to say why a person blogs?  It’s just that some of us need more of that than others, isn’t it?

I must say, cobbling together last year’s piece and integrating the blog links into the conceptual themes and all the business —  it took a stupendous amount of work, really.  Most of it got done by the light of the metaphorical midnight oil — way past the hour when the real Chanukah oil had burned to the bottom of the glass cups in the menorah, wicks fizzling and the last gasp of flame steaming up through the olive essence.  I barely made the deadline.  And when it was done, my upper back wrenched with stabbing pain, I gazed, with characteristic modesty, on Blawg Review #191 as a personal Chanukah miracle.  I could not have done it on my own.

Now, the Sages teach that of course God does perform miracles, and that it is entirely proper to pray for miracles; but to rely on miracles is not faith, but folly.  In the Holy Tongue this principal is expressed in the words ein somchin al ha-nes.  And I realized three or four days ago that, despite the encouragement from people whose opinions I respect greatly, I wasn’t going to do that again.  Ein somchin al ha-nes.

It’s not that kind of Chanukah Blawg Review because it’s not that kind of year.

And yet, why do I say that?  Blawging-wise, true, it’s been an extraordinarily dynamic year.  New blogs in my areas of law seems to sprout up every couple of weeks.  I find this out because they seem to want to put this blog on their blogroll, which is a very touching compliment; and when you get to be wizened and whatnot like LIKELIHOOD OF CONFUSION®, you know, you do get a little emotional.  These young people and their new blogs!

You can live a lot in one year.

Reminiscing happens on nights such as these.  When I started this blog almost exactly five years ago, I really believed that I had missed the boat, and all the good law blogs (the word “blawg” had not, I believe, been coined yet) had been written, or the “spaces” occupied.  Perhaps I was relying on a miracle then, but maybe it works best when you do that unconsciously.  The fact is, many of the new people coming online with blawgs are creative and original, and should be recognized for having something to say.

I also have come to understand that many of them are making my life as a blogger a lot easier, by more or less shouldering the responsibility for covering entire sub-topics of law that, half a decade ago, I considered part of my beat.  When I can, over here, I try to recognize those blawgers and encourage them, recognizing that, objectively speaking, this space has become a little influential.   It is not so much a matter of “real lawyers have blogs,” but rather whether what people put online using the name are, in fact real blogs.  So I try to promote the idea that blogging at its best is a bona fide form of social networking.  In a good way.

And this sort of content-based social networking, the way I am conceptualizing it, is a real conversation [link corrected — RDC; and see here, too] renewed with the launching of each post.   It takes place in an online space where people not only speak, but listen.  The only criterion for admission to this space — ideally paid in the coin of the Internet, hyperlinking — is the quality of one’s ideas and his ability to express them.  And it does not matter whether a blogger is a member (or a client) of the same prefabricated, cheaper-by-the-dozen plasti-blog “network” that is really nothing more than an articulated series of outsourced online law firm brochures, beautiful in form.  Any Hellenist would be proud.

Not that there’s anything wrong with that, I should say.  Big firms mostly can’t, don’t, probably shouldn’t … “blawg” … the way the old-timers blawg, or blawgged, with that style’s idiosyncrasies, perhaps the occasional iconoclasticism, and maybe even some… risk.  It’s too damned complicated for big firms, what with client sensitivities, positional conflicts, a marketing posture based on the myth of perfectionism, and, with all due respect, an internal culture mainly meant to weed out… idiosyncratic, iconoclastic risk-takers.  (Not that I have anyone in mind.)  But sure:  Mimicking the blog paradigm, exploiting its power in terms of style, segmentation of the message to reach a niche of prospects, accessible and dynamic production interface, low coast and its natural and entirely requited relationship with search engines, is entirely rational for big firm marketing departments.

It’s not for me to say what is called “blogging,” is it?

I shouldn’t have been surprised, then, when I sat on a “social networking for lawyers” panel a few months ago and a big firm marketing director cheerfully announced, “Yes, we just launched six blogs last week!”

I didn’t even understand the words she was saying.  She has six people…  in that firm? … who will stay up all night to beat a dead horse to even deader on an issue in the law that they care about?

To answer comments from law students seeking illumination — or be schooled by people who know more than they do?

To awake with a start and furtively log in and make a correction before someone realizes what a dumb-dumb the blogger is for getting the holding in that case exactly backward?

To wait and wait in the early dusk and through the next dawn to see if someone, anyone, will “pick up on,” maybe even comment — maybe even link to? — a totally original thought from someone who’s out there doing it for real and is willing to stick his neck out and create?  And to try to light up the night for even a little bit?  And risk being wrong?

Or worse… to risk being ignored?

But since then, I have come to understand. I didn’t get what she way saying then, but I do now.  It’s like a lot of things, really.  It’s the Age of Illumination.

A light in every window.

A blawg for every shingle.

Photons and pixels soaring across the ether, generating, light, yes!  Fluorescent, halogen, you name it; sparkling, illuminating all…

Generating light… but no heat.

Okay, having said that — it’s just Blawg Review.  Now, the links:

A lot of folks I look to for blawging entertainment and enlightenment were quiet this week, but these are the law links I like.

• David Ardia at the Citizen Media Law Project announces the publication of a guide to live-blogging and tweeting from court.
• John Welch of the TTAB Blog reports that, in typical MLB piggy fashion, the New York Yankees say if they can take it there, they can take it everywear.
• Michael Atkins, the Seattle Trademark Lawyer, reports thoroughly on the Second Circuit’s remand of the “Starbucks v. Charbucks” trademark case (covered here, too!).
• Scott Greenfield seeks more than Simple Justice this week:  He wants peace from Social Networking snake-oil salesmen, and as only a criminal defense lawyer can do, shows considerable aplomb in both skewering and agreeing with Rex Gradeless of Social Media Law Student.
• Vickie Pynchon, who embodies the true spirit of Blawg Review, announces that she’s giving up the IP ADR Blog and is starting a new, broader commercial-based specialty blog called the Commercial ADR Blog.
• Pamela Chestek of Property, Intangible, reports on a case that explains that, no, a trademark can’t be shared.  (This is evidently true of regular trademarks but not Super Trademarks).
• The Bitter Lawyer’s “Bitter Success” lifts up the rock under which lives porn lawyer, First Amendment banshee and my weekly canasta partner Marc Randazza.
• Venkat Balasubramani, guest blogging on the Technology & Marketing Blog, wonders whether the Florida Bar is reading too much into Facebook “friending” between judges and lawyers.
• Kevin Bankston at EFF runs through “the good, the bad and the ugly” with respect to the new privacy settings at Facebook.  Jonathan Rogers demonstrates a Facebook issue that’s pretty ugly.

• Cathy Gellis, meanwhile, ponders the meaning of Facebookship.
• On the other side of the inner life scale, Facebook becomes — or so hope the JD Supra Legal News people — a bustling hub for tax law.
• Brian Leiter addresses what philosophers are believing, these days, when he’s not cadging for football tickets.
• Danny Friedman, the IP Dragon, says not to mistake China’s new interest in copyright enforcement for a newfound interest in IP rights.
• Christopher Hill reminds readers of some fundamentals at his Construction Law Musings blog.
• At the Duets Blog, Steve Baird writes, with some wonder, about a new dimension in trademark overreaching protection.
• Adrianos Facchetti writes about how easy it is to get tripped up by California’s awful “Anti-SLAPP” statute at his California Defamation Law Blog.
• David Goldman, of the NFA Gun Trust Lawyer Blog, puts estate planning and firearms training in the crosshairs.

Enough to keep you busy?  It was for me.  Thanks for the indulgence.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

Originally posted 2011-12-01 15:46:53. Republished by Blog Post Promoter