Rebecca Tushnet is a Harvard Law professor who specializes in advertising law, intellectual property, and copyright and trademark matters. She has an impressive list of experiences including clerking under former Supreme Court Justice Souter, practicing IP law at Debevoise & Plimpton, and teaching at NYU Law and Georgetown Law prior to Harvard. She published a wide array of academic works and has authored the acclaimed false advertising-focused legal blog 43(B)log for the last 17 years.
Tushnet discusses the details of her legal specialty and particularly why she finds advertising law so important and compelling. She also touches on some interesting niches that she’s become an expert in, such as wedding rings and Internet fanfiction. She then discusses her blog and how it intersects (and doesn’t intersect) with her academic writing. Bob Ambrogi asks her views on blogging’s bigger role in academia and how she plans her own blogging process. They wrap up the conversation with a rundown of Professor Tushnet’s testimony on recent advertising law legislation and a bit of advice she has for prospective bloggers.
Here’s the full episode and, down below, we have a selection of the best exchanges:
You’ve been writing your blog for a long time, since September 2003. What were you doing at that point in your career and what interested you about that medium?
Obviously, my subject matter is really aligned with new technologies. A lot of the interesting legal issues involve new technologies. So, I heard about it blogging and decided “Well, I’ll just try this thing out.” Relatedly, I’m very interested in promoting the idea of advertising law as something that people should routinely study. Advertising law covers basically everyone; even if you’re a nonprofit, advertising law is going to govern some of the stuff that you do. Every law school in the country teaches securities law, but not everyone teaches advertising law. I think this is a total mistake because there’s a huge demand for it right now. There’s a lot of regulation, and there are all sorts of potential actors involved.
So, I started up the blog as an idea that I would cover recent developments and recently decided cases that I found interesting and try and build up some public discussion on advertising law. And so, I started doing that and blogging the new cases that I found. And I found I really liked it. And I also found it was extraordinarily helpful for when both giving me ideas for what I should write about next and also when I started to write. I would usually have started articulating my thoughts with respect to, you know, a recent case. And I could pick up on that and figure out, “Okay, is there a larger thing here? What do I want to say about it?”
Was there any debate in your own mind as to whether you should spend more time blogging or pursuing more traditional academic forms of publishing? How did you weigh that equation?
That’s a great question. I do remember at the time there was some angst about whether we should, as legal academics, “count” blogging. I have to admit, I was in a fairly privileged position where I was also publishing a fair amount of traditional scholarship and doing what I thought was good work there. So, to me it was additional. I wouldn’t probably ever tell anyone to blog instead of publishing traditional scholarship, although there were a couple of people for whom it really worked, unquestionably so. But it kind of wasn’t the way to bet. And things have changed with Twitter becoming such a dominant medium for academics. I do think it’s a way to be, at least in part of public intellectual, so I was always prepared to defend it on the merits.
There’s been talk in recent years that the traditional law review is an anachronism whose time has long passed, and that blogging is perhaps a superior form of academic or scholarly publishing. What do you think about that?
My question is, “Is it good work?” If the work is good, then I want to read it in the law review, and I want to read it in a blog post. Also, they’re just different things. There are kinds of arguments that are simply not fit for a blog post because they’re long and they’re involved, and that’s fine. And in fact, when I do an amicus brief, I post the advocacy group, and I usually don’t even really do much to summarize it because usually there’s actually an argument that’s longer than one you would want to fit in a blog post. So, I think having an academic community that has people in it who do outreach to working lawyers, and to the general public is really important. It is not particularly important that any one person do any of these things. I’m never going to tell anyone “This is how you should connect to the public.”
How has your blogging routine remained the same or changed over the last 15 years, since you became serious about blogging?
I’ve tried to keep the focus as much as possible on the stuff that I know other people aren’t going to cover. Although, actually, that’s changed too. There’s much more coverage of advertising law than there was when I started out. One thing that I hope never changes is that I’m going to tell you what I think. There’s going to be commentary on there of things that I think are particularly well reasoned and things that are particularly badly reasoned. I’m not super consistent about this, but I am trying to keep an eye out to not put the sole name of someone who was sort of dragged into something. With the visibility that you have probably mostly just going to use a last name, unless it’s really important to know exactly what’s going on. I also started blogging about the conferences I attended. Unfortunately, that has not happened very much in the past year, but hopefully we’ll be back to that soon. And I enjoy that. But I’m also trying to be mindful of the difference between the sort of stuff that’s presented in a limited group of people versus the stuff that you’re presenting to a public community.
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