Legal Commentary

I've been wondering about the above question for a while now.  Don't get me wrong -- I find that the Legal Scholarship Blog has become essential daily reading, and I fully recommend you add it to your daily rounds if you're a legal scholar of whatever level who wants to stay au courant (not that there aren't good reasons not to stay au courant). 

But it seems to me the etiquette of linking to the Legal Scholarship Blog, or at least of linking through to the papers it mentions, is somewhat tricky.  SSRN is a horse of a different color.  Papers there are papers that the author was willing to distribute to the wide world.  But the Legal Scholarship Blog links to papers that are being presented to schools, that often are in rough form, and that feature various apologetic, remember-this-is-a-terribly-rough-draft introductions and caveats.  Most importantly, it is not clear that all the authors who are workshopping a paper realize that by sending a paper to be ready by and presented to the faculty at a particular school, they are actually opening it up to a universal readership.  Right? 

Mind you, I think that professors ought to be more willing than they are to circulate rough drafts, on SSRN and elsewhere, and that readers ought to read such pieces with an appropriately charitable eye, all in the interests of both author and reader expanding the field of useful scholarly dialogue.  But courage and sensitivity are not always strong suits in the academy, and many scholars would prefer -- mostly for the wrong reasons, I think, but sometimes for good reason -- not to circulate widely anything that is not yet substantially polished. 

So what's the etiquette here?  Should one link to papers off the Legal Scholarship Blog, or not?  Or only after seeking the author's permission?  Or are there reasonable halfway measures?

I'll try such a halfway measure now, although I think it is a Pontius Pilate-like move.  Without linking to it, let me note that Gia Lee just presented a very interesting paper called Free Speech Deference, which is self-confessedly still at an early stage but is well worth reading.  It's one of a number of recent works dealing with similar lines of inquiry, including my own forthcoming paper Three Faces of Deference.  First Amendment institutionalists, First Amendment scholars generally, and anyone interested in the question of deference in constitutional law should certainly check out Gia's interesting paper, at least unless she asks the folks at Virgina to take it down.  I hope she'll present further drafts on SSRN and look forward to the final published result, and this seems like an excellent time in the project's lifeline to offer commentary.