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Nothing but Blue Skies

March 13, 2013

I have been meaning to write about the Columbia Law School Blue Sky Blog for some time. In a previous letter, I celebrated blogs as the most interesting literary genre to emerge as a byproduct of the digital media revolution. The practice of blogging has also evolved enormously as it has assumed more responsibility for news and commentary traditionally monopolized by print journalism. But print journalism is so 1999. And when we look at the Columbia Law School Blue Sky Blog, we see the future of blogging, or as Editor-At-Large Jason Parsont says, a vision of Blogging 2.0.

The CLS Blue Sky Blog focuses on corporations and capital markets, and is a younger cousin of the Harvard Law School Forum on Corporate Governance and Financial Regulation, which pioneered the creation of blue skythe institutionalized blogging platform for scholars studying and writing about corporation law, transactional law, and financial institution regulation. The HLS Forum is probably best known for the spirited debates it has hosted between corporate governance foes, Harvard Law professor Lucian Bebchuk, who generally represents the perspective of corporate governance activists, and Wachtell attorney, Martin Lipton, legendary defender of corporate board and management independence and unfettered executive compensation, inventor of the poison pill takeover defense, and allegedly (but probably not) a supple ballroom dancer and renowned prankster. While Lipton and an actual activist shareholder (aka “corporate raider”), Carl Icahn, are mortal enemies fighting over real dollars, Bebchuk and Lipton share the mutual (if perhaps grudging) respect of legal scholars who care about ideas, relish intellectual combat, and need each other as foils.

Enter The CLS Blue Sky Blog. As you know, atmospherics frequently crept into Progressive Era metaphors invoking the need for capital market regulation. “Blue Sky” refers to the empty claims, stretching into the “blue skies of Kansas”, of fraudulent securities offerings in the early part of the 20th century. Similarly, in his book of essays, Other People’s Money And How Bankers Use It, published in 1914, Louis D. Brandeis famously wrote about the importance of financial transparency and disclosure: “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. And publicity has already played an important part in the struggle against the Money Trust.“

In the spirit of these vivid (curiously American) metaphors, The CLS Blue Sky Blog claims the open skies and the sunlight for its own campaigns on behalf of “publicity”. The Blue Sky Blog leverages its distinguished law school faculty, geographic proximity to Wall Street and to major New York law firms such as Cleary Gottlieb, Sullivan & Cromwell, and Davis Polk (all law firm memo contributors), and connections to prominent scholars, practicing attorneys, and regulators to publish a steady (one to two posts a day) diet of commentary on topics related to corporate governance, finance & economics, mergers & acquisitions, securities regulation, Dodd-Frank, and international developments.  Catholic in its scope, The CLS Blue Sky Blog also publishes selected posts from many other leading corporate governance and capital market blogs and includes a targeted library of relevant law firm memos.

The Huffington Post in some ways pioneered what we might call Political Blogging 1.0, but ultimately “blogged down” between contradictory, cross-cutting commitments to spotlighting powerful voices on important issues, titillating a broader audience with TMZ-style celebrity gossip, and simply making a lot of money. What allows The CLS Blue Sky Blog to present itself as a version 2.0 of the traditional blogging platform? Let’s say the vision is aspirational.

Legal studies and legal practice are, by definition, confrontational and dialectical. From the perspective of Common Law epistemology, truth is always partial (and never objective), but cannot emerge in a fullness transcending mere opinion without engaging the most serious opposing views and seeking, essentially, to demolish them. Liberated from the second and third imperatives embraced by The Huffington Post, the editors of The Columbia Blue Sky Blog have assembled the technology, the talent, the ambition, and the concrete substantive commitments necessary to create a dense discourse that both informs us and requires us to deepen our own thinking simply to follow along.

CLS Professor Robert Jackson’s recently published a post on the petition he and Lucian Bebchuck circulated exhorting the Securities and Exchange Commission to require public companies to disclose their political spending (this petition has elicited more than 300,000 comments directed to the SEC, most as individually signed copies of the petition). Jackson’s post perfectly illustrates the value of this dense legal style of discourse, and how it can serve as a model for opinion-driven journalism perfectly suited for engaging, informing, educating, and entertaining the online readership of the 21st century. The essay is not polemical. Instead, Jackson takes on every argument presented against the initiative, and systematically exposes their defects, leaving one with the conclusion that the opponents float upon a leaky craft indeed.

Ultimately, The Columbia Law School Blue Sky Blog succeeds and excites because it accepts and embraces the communications givens of the digital age, with respect to both technology and audience, and uses these givens to fashion a platform that celebrates and elevates the finest, most venerable traditions of legal argumentation and discourse.

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