Notice And Comment: An Introduction

Each week, I will select an interesting topic related to law and the legal profession and invite you, my subscribers, to offer your thoughts on it.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can subscribe through this signup page if so inclined. Thanks!

Welcome to Notice and Comment, a new feature here at Original Jurisdiction. It’s an opportunity for me to hear from you, my readers, as well as an opportunity for you to speak to each other.

As you might have guessed, since many of you are fellow legal nerds, this feature’s title comes from the requirement under the Administrative Procedure Act (APA) that certain rules promulgated by government agencies go through “notice-and-comment rulemaking” — which is, as SCOTUSblog explains, “a lengthy process in which the public is given an opportunity to comment on a proposed version of the rule and the agency responds to the comments.”

Here at OJ, Notice and Comment will be a bit different — much less lengthy, and much more fun (I hope). Each week, I will “notice” an interesting subject or question, then invite you to “comment” (clever, right?). I will kick off the conversation with a few initial thoughts of my own, but the main point of Notice and Comment is for you to talk amongst yourselves. I will be an active participant in the comments as well, but Notice and Comment isn’t about me and my thoughts — I get enough real estate here at OJ — it’s about creating a reader community.

This feature is reserved for paid subscribers of OJ, since you’re the only folks with the ability to comment. My hope is that limiting commenting to a select group will encourage civil and thoughtful dialogue, as opposed to trolling, flame wars, and ad hominem attacks.

Here’s some background on my experience with reader comments. If you’ve been reading me since I launched Above the Law in 2006, you might remember what ATL comments were like back in the day, as I described them in a piece for the Washington Post:

Reader comments in the early days of Above the Law were a treasure trove of information, insight and humor, advancing our mission of bringing greater transparency to an often opaque profession. Comments were wildly popular; some readers came specifically to read them, and some commenters became Internet celebrities in their own right.

Over the years, however, our comments changed. They had always been edgy, but the ratio of offensive to substantive shifted in favor of the offensive. Inside information about law firms and schools gave way to inside jokes among the “commentariat,” relevant knowledge got supplanted by non sequiturs, and basic civility (with a touch of political incorrectness) succumbed to abuse and insult.

As a result, as I explained in my Post piece, we eliminated comments on ATL. As the kids like to say, this is why we can’t have nice things.

Here at Original Jurisdiction, however, I’m optimistic that reader comments will enhance rather than detract from the experience, for a few reasons. First, OJ’s high-powered, self-selecting audience consists largely of upstanding people (I think). Second, the audience of OJ is much smaller than that of ATL, making for a more intimate environment that will promote greater civility. Third, OJ’s audience consists of paying subscribers — and when people pay for something, they tend to respect it more. (I suppose some people might pay for the privilege of insulting me and other readers, sort of like paying to put someone in a dunk tank, but I suspect that this group will be small.)

Have a suggestion for a topic to tackle in Notice and Comment? Please put it in the comments to this post, and I might use it in a future installment of this feature. As my three-year-old son Harlan was heard muttering in his room the other night, well after we had supposedly put him to bed, “Let’s get this party started!”

P.S. This recurring feature on Original Jurisdiction should not be confused with Notice & Comment, the (excellent) blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice (where Professor Peter Conti-Brown was kind enough to review my novel set in the Ninth Circuit, Supreme Ambitions, back in 2014).


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