Has been posted on Balkinization and on SSRN The First Amendment is an Information Policy. This paper sounds like it could have interesting implications for an issue which I intend to return to on the scholarship front, that is, what happens when some of what appears in law reviews has been "sponsored" or "commissioned" ? And when I say "sponsored" or "commissioned" I am not referring to law school summer research grants. Such grants are never conditioned on the topic or on the author reaching a particular result. The only string attached are usually that the faculty member actually produce something that results in a publication.
In contrast, in, what for lack of a better word I will call "commissioned" or "sponsored" scholarship, the author has been paid precisely because of the viewpoint he or she espouses. Drug company sponsorship, or worse ghostwriting (i.e. paying a doctor to add his or her name to an article) has long been a problem in medical journals relating to pharmaceutical drug research and has led to some overhauls on most medical journal's requirements about financial disclosures. Most law reviews don't have such policies. Should they? A few have implemented them. Perhaps more will come. But the fact that there is some interest in financially supporting the production of law review scholarship to promote a particular point of view raises some interesting questions about the reliability of the information, whether "the marketplace" is a good sorter of the best ideas, as the "marketplace of ideas" metaphor is often used to imply. And, more prosaically, illustrates that somebody thinks law reviews are worthwhile enough to pay for the production of these sorts of articles. Who is doing this, how much of this goes on and what difference it makes are big unknowns at this point but may bear some investigation.
In the meantime, going back to Professor Balkin's paper, I think there might be some interesting implications for these questions given what looks like his thesis --- that one purpose of the First Amendment is to generate information. Stay tuned.
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