Saturday, March 25, 2006
  Orin Kerr is a Fascist

Orin Kerr has split off from the Volokh Conspiracy to create his own legal blog, OrinKerr.com. He states as his purpose in splitting off from Volokh as: to provide "high quality discussion and legal analysis" of legal topics.

In order to accomplish this goal however, Prof. Kerr has decided not to allow anonymous comments to be posted. Instead he has devised a different, shall we say, less democratic system, as explained in his first post:
To ensure the highest quality comments, I have set up two ways to comment at this blog: with a registered account and without a registered account. Registered accounts are by invitation only, and permit an individual to post comments without prior review. I plan to invite a group of law professors, lawyers, law students, and journalists to register accounts. Invitations will probably go out within the next week or so.

If you don’t have an account, you can still submit a comment. However, comments submitted by those without an account will not post automatically. I plan to screen comments by individuals without an account pretty carefully, so that only thoughtful and informed comments are posted.

If you’re interested in submitting an unregistered comment, you can maximize the chance I will approve your submission by offering informed legal arguments delivered in a careful, civil, and clear style. My plan is to offer registered accounts to individuals who establish a track record of submitting particularly good unregistered comments.

Further, Prof. Kerr's introductory post at Volokh for the new blog describes the motivation behind the new comment system:
the idea is to promote comments by a specific group of legal experts and commenters rather the general public. This isn't very populist of me, I realize, but I think it fits the focus of the new blog: Comments can add tremendous value to a blog post, but legal experts and informed commenters tend to add the most value to blog posts about the law.
Now let's review. According to Merriam-Webster online, fascism is defined as:
1 often capitalized : a political philosophy, movement, or regime (as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition
2 : a tendency toward or actual exercise of strong autocratic or dictatorial control
Now I am not saying that the new comment system is Fascist, but rather, fascist. (If you think this is a minor distinction, ask a large wing of the republican party, including Milton Friedman, whether they are libertarian or Libertarian, and whether that matters.)

Prof. Kerr's system is one of centralized control, where a sole dictatorial leader (the benevolent Prof. Kerr) severely regulates the commenting system. This system creates "social regimentation" by creating two classes of commenters, the Registered and the Unregistered. The Registered are able to post their comments at will, while the Unregistered must conform their comments to Prof. Kerr's definition of a "good" comment, or else they may not be heard. Second, this system also creates a forcible suppression of opposition because, as just stated, Prof. Kerr has the power, opportunity, and perhaps, the motivation to suppress all of those comments which may belie the arguments from the underlying post.

I say, Prof. Kerr, tear down that wall!
(with apologies for mixing political metaphors)
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