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Alito and Securities Law: Part II

As Prof. Ribstein notes, there has been a significant amount of interest, both on the internet and offline, in Judge Alito's record as a "business friendly" jurist. The emerging consensus is (for marketeers) bullish. Forbes quotes Ted Frank as saying "All and all, business wins," and then (rather wistfully) the magazine continues that the "stock market may have signaled its agreement on Monday; the Dow Jones Industrial Average had risen 49 points at midday."

In any event, I've done a bit more research into Judge Alito's record as a judge in securities cases, and I think defense attorneys may not want to uncork the champagne just yet.

As I noted when discussing the Burlington Coat factory case, the Judge does not appear hostile (as some do) to securities claims as a general matter. Rather, he appears to want to force plaintiffs to plead scienter with particularity, and to measure materiality by its market impact. In this post, I'll continue my analysis of two additional Alito securities decisions that Prof. Ribstein didn't focus on.

The first is Oran v. Stafford, 226 F.3d 275 (2000). Oran is a gem of a case. Except for the facts, which are tedious.

In Oran, Judge Alito once again focused on market impact as a bright-line rule to measure materiality.

In Burlington . . . this Court fashioned a special rule for measuring materiality in the context of an efficient securities market. This rule was shaped by the basic economic insight that in an open and developed securities market like the New York Stock Exchange, the price of a company's stock is determined by all available material information regarding the company and its business. In such an efficient market, "information important to reasonable investors ... is immediately incorporated into the stock price." Burlington, 114 F.3d at 1425. As a result, when a stock is traded in an efficient market, the materiality of disclosed information may be measured post hoc by looking to the movement, in the period immediately following disclosure, of the price of the firm's stock.

As I explained previously, I think there are some problems with this approach (even though I seem to support it at places here.) Nevertheless, Judge Alito's strong reaffirmation of the ECMH in 2000 suggests that he may be quite resistant to attacks on the construct using behavioral research, which, in the end, may result in decisions that securities plaintiffs like much more than securities defendants. For example, Alito in Oran found that evidence of price movement (even without a loss causation analysis) meant that a disclosure was material, per se. In a paper analyzing around 500 securities cases from the Second Circuit, I found only a handful of judges willing to find materiality as a matter of law as a result of price movement. It is a testament to Judge Alito's intellectual honesty that he was willing to do so in this case.

An earlier decision, In re Westinghouse Securities Litigation, 90 F.3d 696 (1996) provides a look at the Judge's view of the (very troublesome) bespeaks caution doctrine. The bespeaks caution doctrine, for those of you who are not professionally enthralled by securities law, holds that where a company’s allegedly misleading predictions are paired with specific cautionary warnings about the fallibility of the corporation's oracular abilities, and the ways in which the future might go badly, there can be no liability. The bespeaks caution doctrine is an increasingly popular way that judges dismiss securities claims early in litigations, removing such cases from judicial dockets before the costly (and truth-uncovering) discovery stage.

Judge Alito was surprisingly hostile to the BC doctrine in Westinghouse. Although the defendants had made many cautionary statements, Alito found that they were not targeted at the representation at issue - - that the defendant knowingly misrepresented their financial state. That is, defendants' statements about the potentially grim future would not protect their lies about their present condition.

A reasonable investor might well be willing to take some chances with regard to the future of the economy, but might be quite unwilling to invest in a company that knew that its reserves were insufficient under current conditions and knew it would be taking another major write-down in the near future (as plaintiffs allege). Thus, notwithstanding the cautionary language stressed by defendants, we think that there is a substantial likelihood that defendants' alleged misrepresentations . . . would have assumed actual significance to a reasonable investor contemplating the purchase of securities.

Sounds uncontroversial. But as I have found in my research, judges have been willing to apply the BC doctrine with abandon in recent years, and Judge Alito's decision reversing the district court on this issue suggests that he is not reflexively in favor of deregulating the securities markets, as some of his partisans might hope.

Posted by hoffman at 10:03 PM | Comments (3) | TrackBack

Beware of the Big Bad Bloggers

It’s Halloween, and who is the biggest scariest monster on the block? Me. That’s because I’m one of them “bloggers” according to a sensationalistic article published in Forbes Magazine.

The article, written by Daniel Lyons and entitled “Attack of the Blogs,” has been drawing the ire of the blogosphere. A stew of fear and vitriol, the article begins with the sentence:

Web logs are the prized platform of an online lynch mob spouting liberty but spewing lies, libel and invective.

He also writes:

Blogs started a few years ago as a simple way for people to keep online diaries. Suddenly they are the ultimate vehicle for brand-bashing, personal attacks, political extremism and smear campaigns. It's not easy to fight back: Often a bashing victim can't even figure out who his attacker is. No target is too mighty, or too obscure, for this new and virulent strain of oratory.

Bloggers should certainly be responsible and law-abiding, and bloggers shouldn’t (and don’t) have an immunity from lawsuits for defamation or invasion of privacy.

What is most ironic, however, is that after attacking bloggers for being lawless brigands, Lyons proceeds to offer some tips for “fighting back” against the bloggers that are equally as unethical and lawless as the bloggers in his caricature:

BASH BACK. If you get attacked, dig up dirt on your assailant and feed it to sympathetic bloggers. Discredit him.

Great idea, right? Wrong. This can readily become a tort violation.

The tort of public disclosure of private facts creates a cause of action when one makes public “a matter concerning the private life of another” in a way that “(a) would be highly offensive to a reasonable person and (b) is not of legitimate concern to the public.” And the tort of intrusion protects against the intentional intrusion into one’s “solicitude or seclusion” or “his private affairs or concerns” that “would be highly offensive to a reasonable person.”

Consider what happened in 1970 when General Motors attempted a similar set of tactics against its prominent critic, Ralph Nader. GM attempted to dig up dirt on Nader, made harassing phone calls to him, wiretapped his phones, and kept him under extensive surveillance. The case is documented in Nader v. General Motors Corp., 255 N.E.2d 765 (N.Y. Ct. App. 1970). Nader sued, and GM paid a heavy price in bad publicity. It also paid Nader a hefty settlement -- $425,000 (quite a lot of money in the early 1970s) -- and it publicly apologized to him at a televised Congressional hearing. Not a wise move by GM.

Here’s another brilliant tip:

ATTACK THE HOST. Find some copyrighted text that a blogger has lifted from your Web site and threaten to sue his Internet service provider under the Digital Millennium Copyright Act. That may prompt the ISP to shut him down. Or threaten to drag the host into a defamation suit against the blogger. The host isn't liable but may skip the hassle and cut off the blogger's access anyway. Also: Subpoena the host company, demanding the blogger's name or Internet address.

The problem with this advice is that the host is immune from liability for being sued for what a blogger says under a federal statute, § 230 of the Communications Decency Act.

Filing a frivolous lawsuit just to scare a person would get an attorney into some ethical trouble. The host company can be subpoenaed for the blogger's identity, but courts will often not reveal the identity of a blogger unless the plaintiff can demonstrate that the lawsuit is bona fide and not frivolous. I recently blogged about a court holding that a defamation plaintiff must satisfy the summary judgment standard before obtaining the identity of a blogger.

And lawsuits of dubious merit designed to attack people for their speech can backfire, since many states have anti-SLAPP laws. A SLAPP stands for a “Strategic Lawsuit Against Public Participation,” and it involves a lawsuit, similar to the kind recommended by Lyons, to stifle free speech. Anti-SLAPP laws will often allow a blogger to get a lawsuit dismissed early on and if the blogger is successful, the company must pay the blogger’s court costs and attorneys’ fees. An example is California’s Code of Civ. Procedure § 425.16.

I believe strongly that bloggers who engage in defamation and invasions of privacy should be held responsible for their actions. But the solution for companies and others who feel that they are wronged by a blogger is not to file frivolous scare-tactic lawsuits or to orchestrate a smear campaign.

The moral of the story: Don’t take your legal advice from Forbes Magazine.

Posted by Daniel Solove at 12:15 AM | Comments (2) | TrackBack

Alito: The Business Friendly Justice?

Larry Ribstein has a great new post up on the jurisprudence of Third Circuit Judge Samuel Alito, a potential SCOTUS nominee. He sums up:

In short, Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs. He's also obviously aware of the problems that can be caused by lax proof standards and open-ended liability.

On the list that Prof. Ribstein has created, I was particularly interested in In re Burlington Coat Factories Sec. Lit. Prof. Ribstein says that decision involves a "deni[al] securities claims for failure to adequately allege scienter and materiality, and for lack of a duty to update." My reading of the decision produced a somewhat more complicated picture, which may give some insights into Alito's opinions about securities complaints.

First, unlike the district judge whose opinion the Third Circuit was passing on, Alito's opinion is significantly more respectful of the pleading standard, reversing (in effect) a dismissal on materiality grounds. This decision - if representative of Alito's larger jurisprudence - suggests that he is not particularly hostile to securities plaintiffs. In the end, the opinion does dismiss claims on 9(B) grounds, but with leave to re-plead.

Most significantly, the Judge appears to buy into the efficient capital markets hypothesis without hesitation, dismissing one claim which failed to result in a market reaction with the following reasoning.

In the context of an "efficient" market, the concept of materiality translates into information that alters the price of the firm's stock. . . . This is so because efficient markets are those in which information important to reasonable investors (in effect, the market) ... is immediately incorporated into stock prices. ... Therefore, to the extent that information is not important to reasonable investors, it follows that its release will have a negligible effect on the stock price.

There are two basic problems with the idea that non-price-movement should mean immateriality as a matter of law. First, there will be times when market-wide distortions will dampen reaction to disclosures -- which is why we require litigants to conduct expensive loss causation analyses which correct for the effect of the market-basket. Second, the behavioral finance literature, summarized by Ribstein (in a great paper) here, should give pause to judges, plaintiffs and others who seek to rely heavily on the ideal of a perfectly well-functioning market. To be fair, we can't blame Judge Alito for not being aware of this literature back in 1997, but it would be interesting to know what he thinks today.

Needless to say, if I were on the judiciary committee, we'd have fewer questions on intellectually moribund subjects like con law, and many more of the following type(s): "How should judges go about evaluating the question of whether the stock market is fully efficient? Can securities class actions survive evidence of irrational decisionmaking?"

[UPDATE: I've investigated Judge Alito's securities decisions further here.]

Posted by hoffman at 12:10 AM | Comments (2) | TrackBack

Why Blawging is Bad For Law

Hello Folks.

I've joined Co-Op today from Prawfsblawg. This is by my count the fifth time I've introduced myself at a new blog-home. That makes me a bit of an itinerant blogger. It is also pretty ironic, because I generally think that the institution of blogging/blawging threatens to fundamentally disrupt some very valuable aspects of how law is currently organized, administered and transmitted.

To take an example I posted on recently on Prawfs, consider what happens to the common law when the primary sources which form its skeleton -- judicial opinions - become the fodder for the entertainment of an audience of millions of eager web-surfers. Yes, I'm talking about you, Howard. It isn't that How Appealing, and like blawgs, are bad. Indeed, I visit Howard's blawg every day, and it is an invaluable resource. It is that Howard's popularity, and the increasing linking of opinions by the MSM-online, provides incentives for judges to write witty, funny, entertaining, short, glib opinions, instead of careful, boring, technically precise ones. That is, to the extent that lower-court judges want to be noticed and profiled by (kind of silly) websites like these, it makes sense to be more like Scalia and Douglas than Souter and Rutledge.

Some might protest: surely federal judges don't care much about having their opinions widely publicized? They have life tenure, and they care only about not being reversed. But the motivations of federal judges seem to me to be an open question, and I think that if I could somehow chart the growth of funny and media friendly opinions, we'd see a small bump beginning with the introduction of WL and a huge increase in the last five years.

So, why is this bad?

To find out, you’ll have to visit here again, as I will be retuning to this topic soon.

Posted by hoffman at 12:02 AM | Comments (6) | TrackBack

A Warm Welcome to David Hoffman

I am delighted to announce that Professor David Hoffman will be joining us from PrawfsBlawg. Dave teaches at Temple University's Beasley School of Law. He teaches contracts, law and economics, and business associations.

His most recent scholarship has focused on empirical and behavioral investigations of corporate and securities law. His recent articles include: The 'Duty' To Be a Rational Shareholder, 90 Minn. L. Rev. (forthcoming 2005), Nullificatory Juries, 2003 Wisc. L. Rev. 1115 (with Kaimipono Wenger), How Relevant is Jury Rationality?, 2003 U. Ill. L. Rev. 507, and Can Law and Economics Be Both Practical and Principled?, 53 Ala. L. Rev. 335 (2002) (with Michael O'Shea).

His topics of interest are behavioral law and economics, securities law, dispute resolution, corporate law, legal theory, and empirical studies.

We’re absolutely thrilled to have Dave on board!

Posted by Daniel Solove at 12:01 AM | Comments (6) | TrackBack

The Problem with Superprecedent

Jack Balkin (law, Yale) has an excellent post over at Balkinization about my colleague Jeffrey Rosen’s New York Times essay about superprecedents. The notion of superprecedent is that there are cases that are so firmly entrenched that they ought not to be overturned despite being in error. Roe v. Wade is the superprecedent that most have in mind.

In his post, Jack Balkin explains that a strategy of many conservatives is to “accept Roe as settled (as modified by Casey) but begin to chip away at it over the long haul.”

He explores three justifications for superprecedents. The first justification is that a precedent has held on for a long time and weathered some attacks. But this justification does little to justify why the precedent deserves to stand.

A second justification is that a lot of law has built up upon a precedent. The precedent serves as "a support beam in a house that, even if not installed correctly or in the right place, cannot now be removed without seriously endangering the safety of the occupants.”

The third justification is that a “particular precedent which was at one point highly controversial is now widely agreed to be a foundational and highly admirable articulation of constitutional values.”

Balkin argues that Brown v. Board of Education “falls into all three categories” above whereas Roe v. Wade “falls into at most categories (1) and (2), and probably only category (1).” He concludes: “Talking about Roe as a ‘superprecedent’ obscures far more than it clarifies.”

I very much agree. The first justification Balkin identifies is one of longevity and staying power. This justification does not strike me as a valid reason to uphold a precedent. Precedent lasting over half a century has been reversed in the past. Roe has existed for a long time, but not for an unusually long time. If Roe is a superprecedent, then why wasn’t Plessy v. Ferguson, which wasn’t reversed until nearly 60 years later in Brown v. Board of Education? Why wasn’t Olmstead v. United States a superprecedent, which wasn’t reversed until nearly 40 years later in Katz v. United States?

The second justification is one of practicality. But practicality has not stopped the Supreme Court in making many fundamental changes in the constitutional system. Brown mandated dramatic changes in the South; Katz overturned a settled understanding of the Fourth Amendment, affecting the police across the land. The Court has frequently rendered decisions that have caused tremendous doctrinal shockwaves let alone tremendous effects on the legal system more generally. Just look at the recent decisions about criminal sentencing in Booker and Blakely.

The third justification – widespread consensus – strikes me as the most valid reason to keep a precedent in place.

So why all the talk about superprecedents? Perhaps because many conservatives don’t want to rock the boat and roll back the administrative state, abolish the Warren Court’s system of criminal procedure, eliminate the right to privacy entirely, and so on. Such radical reversals in precedent would create, in Justice Scalia’s word, a Kulturkampf, a cultural war. So the concept of superprecedent seems to be a way for certain conservatives to begrudgingly hold their noses, accept many precedents, and then say “no more.”

But can this be done in a principled manner? Can one simply freeze controversial lines of cases, such as the right to privacy line, and just tread water? It is difficult to hold a line of cases at a standstill. Analogous cases to precedential cases will invariably arise; and precedents have logical implications that extend beyond existing holdings. It strikes me as hard to be principled and say: “Ok, this precedent is wrong, so we’ll keep it, but we won’t extend it to its logical conclusions. We’ll just find any way possible to keep its growth stunted.” Can such a principled theory of superprecedent be developed? I have my doubts.

Related Posts:
1. Solove, What Exactly Does “Legislating from the Bench” Mean?
2. Solove, Is There One Best Method of Constitutional Interpretation?

Posted by Daniel Solove at 07:55 PM | Comments (2) | TrackBack

Unusual Action Figures

What does Moses have in common with Rosie the Riveter? How is Oscar Wilde similar to Alexander the Great?

Stumped?

They're all action figures. Yes, really. Since I've now earned a reputation blogging about toys with the Playmobil airline screening playset toy, I thought I'd point out that there's a bizarre line of action figures of famous authors, artists, musicians, scientists, and others.

Now instead of playing with GI Joe or Star Wars action figures, you can have William Shakespeare battle Edgar Allen Poe. There's also one of Albert Einstein, Ben Franklin, Wolfgang Amadeus Mozart, Leonardo da Vinci, Johann Sebastian Bach, Jane Austin, and Sigmund Freud to name a few.

I don't quite understand the whole collection. Why are Bigfoot and Blackbeard included? Why is there an action figure of an obsessive compulsive man or an albino bowler?

What action figures are coming next? Can anybody crack the logic of the series? Perhaps the Volokh Conspiracy's puzzleblogger, Kevan Choset, can figure it all out!

Posted by Daniel Solove at 12:13 PM | Comments (3) | TrackBack

Cell phone tracking as warrantless search

Earlier, Dan S. wondered if or when law enforcement would start using drivers' cell phones to prosecute them for traffic violations.

If these two rulings are an indication of the future, the answer is "not very soon." Two courts have found that cell phone location tracking constitutes an unconstitutional warrantless search. (link via CrimProf).

Posted by Kaimipono at 11:10 AM | Comments (2) | TrackBack

Editing the Blogosphere

There's an interesting conversation going on over at PrawfsBlawg about the norms regarding editing or deleting one's blog posts. Ethan Leib wrote:

It is certainly true that one finds many bloggers who "update" their posts, informing readers of changes made to the original posts. But I suppose my view is that I am entitled to do whatever I want with my posts. One could argue, I guess, that I have duties to the blogosphere--whatever ethical community that is. Still, my tentative view is that if I want to edit or delete my posts with or without disclosure, that is my prerogative.

A good discussion has ensued in the comments to Ethan's post and in subsequent posts by Dan Markel and Marcy Peek.

I generally don't delete my posts or parts of my posts, but I think that it is very important that a norm doesn't develop that deletion is taboo. True, it can be annoying for readers to find a post deleted or altered. But that's a small price to pay for encouraging people to engage in a robust debate in the blogosphere. Sometimes we say things we regret, and a non-deletion norm might be more chilling of speech than an ok-to-delete-when-really-embarrassed norm.

Posted by Daniel Solove at 12:27 AM | Comments (8) | TrackBack

Liability for unauthorized picture use?

I recently heard about a blog scandal involving a "fake" blog. Some bloggers got together and, for kicks, created a fake blog. They created fake identities for the blog, and wrote fake stories about fake lives. They originally intended this to be an experiment in participatory fiction; when the ruse was discovered, many readers responded angrily.

An interesting legal question arises out of these bloggers' use of photos. In order to create identities, the participants went online and searched through google images until they found realistic looking photos for their characters. The photos they used were of unknown provenance, and (with one exception) it is probably all but impossible for most people to trace them to their real source. Each photo was matched with a bio to create the fictional characters.Biographical information ("favorite move: Star Wars") matched with the photo creates the illusion of reality.

The site's participants have stated that no permission was ever sought (or obtained) from the photos' real owners. Do the real people whose photos were used to create these fictional identities have any legal cause of action against the bloggers who appropriated their images?

Based on my own (imperfect) understanding of privacy and tort law, it seems there are several potential claims that might be raised, though I don't know how strong any of them are.

1. False light. False light is a tort arising from intentional publicity casting another person in a false light. The elements of false light vary from jurisdiction to jurisdiction, but in general, the tort requires publication of information about a plaintiff, which places the plaintiff in a false light, made with "actual malice," and which would be highly offensive to a reasonable person.

I don't think that there's a particularly strong false light case here. First, we're in the gray area on whether information has been published about these people. Second, I don't think there's actual malice here -- the behavior is more like recklessness. Third, I don't think that any of the bloggers' misrepresentations make their photos look bad in a way that is highly offensive to a reasonable person. (In contrast, if I just pull a photo off the internet and write "this is my next door neighbor and he's a child molester" that would be false light.)

Some of the blog characters were obnoxious, but I don't think that any of them were highly offensive, and so I don't think false light liability would exist.

2. Right of publicity. If any of these people are famous, or become famous, there could be a right of publicity claim. For example, if they had scooped up pictures of Brad Pitt or Nicole Kidman for their little bios, they could certainly expect a letter from those stars' lawyers. Those people have a right to any profit from the use of their images. Others' unauthorized use might damage their ability to profit from their images.

I don't know how strong a case against the bloggers would be on this ground. They deliberately chose unknown images. If all of the people they impersonated are just college students, there may be no real monetary damages. Also, the site was non-profit.

3. Invasion of privacy. The elements here will again vary highly from jurisdiction to jurisdiction. In general, there are two possible torts here: Embarrassing disclosure of private facts, and a sort of "intrusion upon privacy" tort. The ability of a public figure to bring either of these torts is very limited.

The bloggers didn't discuss any private facts about the people whose images they used -- they didn't even know private facts about these people -- so that claim is probably out.

Is this intrusion on seclusion? Maybe. This tort also usually requires an intrusion that would be highly offensive to a reasonable person.

4. Intellectual property violations. If the images are copyrighted, the copyright owners might bring a claim.

5. Finally, there are a grab bag of other torts that could come into play. Intentional infliction of emotional distress, interference with business or personal relations, loss of consortium. All potentially applicable given the right set of facts, but all very much longshots.

Based on these torts, I don't see any strong cases for liability (though there are enough gray areas and maybes here that I would not be at all comfortable if I were in those bloggers' shoes).

It is also possible that a court would find liability based on a new cause of action. Some scholars have suggested expanded recognition of invasion of privacy torts, or the adoption of general torts recognizing intentional or reckless harm to others. In addition, legal protection of privacy is an area of the law that is in constant development.

One of the blog's characters was sufficiently obnoxious that some of the site's fans created a T-shirt with his image. It would be ironic if the photo's real owner saw his own face on someone else's shirt, and had no legal recourse.

UPDATE: Certain identifying information removed.

Posted by Kaimipono at 10:34 PM | Comments (6) | TrackBack

Dennis Hastert's Blog

Dennis Hastert, Speaker of the U.S. House of Representatives, has started a new blog, Speaker's Journal. He writes:

The internet is changing the way we share information. My office has been talking a lot about some of the conversations going on in blogosphere. So I thought, hey, I should start one and give you unfiltered updates on Capitol Hill.

I'm not sure how much of a conversation the blog aims to generate if it doesn't allow for comments. I also wonder whether a politician can truly provide "unfiltered" information. His first blog entry reads more like a politician's speech than a blog post. It will be interesting to see how the blog develops and whether, in a few years, every politician will have one.

Posted by Daniel Solove at 12:06 AM | Comments (9) | TrackBack

Miers Withdraws

The news comes as no surprise. There have been so many hints about it lately. Also, in a week where indictments of top Bush officials are likely to come down, the announcement makes particular stategic sense. The news media won't have a long time to dwell on Miers.

Did the blogosphere play a role? A few days ago, I debated with Daniel Glover of the Beltway Blogroll about the influence of bloggers on the Miers appointment. I wrote:

In essence, a set of virtual confirmation hearings are being held in cyberspace, and the fate of the nomination may well be decided before the actual hearings in the Senate even begin.

The cyberhearings on Miers are now over . . . which is good because I was growing weary -- very weary -- of reading post after post about Miers. Although I'm writing one now . . .

Posted by Daniel Solove at 11:40 AM | Comments (1) | TrackBack

Unusual Law School Classes: Quiz Answer Key

If you attempted to take the quiz I set out in my post earlier this week about unusual law school classes, I just posted the answer key in the comments to the post. Please continue to submit comments about your unusual law school courses and course descriptions. I may collect some of my favorite entries from the comments and emails I received and post them sometime soon.

Posted by Daniel Solove at 12:03 AM | Comments (0) | TrackBack

Drudge, Will You Please Link to Us? Please?

This is truly amazing. Today, the Drudge Report linked to Michelle Malkin's blog. Check out Malkin's spike in traffic:

Her traffic on a regular day is already astronomical, but over half a million hits in a day is breathtaking! It is so high that it goes off Site Meter's charts. Thanks to Mike for bringing this to my attention.

Posted by Daniel Solove at 10:37 PM | Comments (0) | TrackBack

A Casebook That Gets Used

Unlike my law professor co-bloggers, I don't have piles of free case books littering my office. (At present, I do have lots of insurance documents and stacks of filings in pharmaceutical cases.) In legal practice I find that there is only one of my case books from law school that I still regularly consult: Hart & Wechsler's The Federal Courts and the Federal System. There are a number of reasons for this.

First, I am mainly a litigator, which means that I spend a lot of time fussing about procedure and jurisdiction. Indeed, a great deal of my time of late has consisted of finding esoteric ways of shuttling cases from one court to another court. Of course, from time to time when all else fails we are forced to grapple with the substance of the claims in the cases. However, as a law-geek I am happy to spend most of my time on the part of the case the occurs before and up to the 12(b)(6) motion and then after final judgment on appeal. Facts are such troublesome things and they require a huge amount of scutt work to develop. Procedural and jurisdictional fussier that I am, Hart& Wechsler comes in handy.

Second, the law of federal courts is pretty complicated and if you poke around long enough you will find that it is riddled with odd little doctrines and exceptions. Hart & Wechsler is filled with case citations followed by questions. The questions are actually useful in practice. On one or two occasions, I have found that trolling through a section of Hart & Wechsler, I come across a question and think "If the answer to that question is 'yes,' then my client wins." And hence a legal theory is born.

Third, Hart & Wechsler very self-consciously contains more material that is pedagogically useful. I had federal courts from Dan Meltzer, who is one of the current authors, and he made no attempt to cover everything that the text book covered. He would have been insane to do so. (Which doesn't mean that there aren't other insane teachers at HLS.) Obviously, Hart & Wechsler isn't Wright & Miller, but it does provide quasi-comprehensive coverage. More importantly, it makes a serious attempt to reference the relevant secondary literature in the law reviews. Because federal courts is an area where there is still a fair amount of doctrinal scholarship, the referenced law review articles are actually useful from time to time.

So for law professors interested in writing case books with a bit of shelf life in them, here is my advice. First, pick a topic that comes up ubiquitously in litigation. Second, pick a really complicated body of law where there are lots of ambiguities. High light as many of these ambiguities as possible so that future litigators can troll through them looking for a stray edge of the law to worry. Third, be big. Don't limit yourself to what would be useful to students in class. Make your case book into a portal for the field. Cover all of the epicycles in the doctrine and provide citations to lots of cases and relevant law review literature. Also, pick a topic where the law review literature still contains serious doctrinal writing.

Do these things and your case book to can earn a hallowed spot on my desk next to the insurance documents.

Posted by oman at 10:20 PM | Comments (4) | TrackBack

Death of the Casebook?

Predictions about the death of the book have so far been premature and it's not hard to see why. Books are a very nice technology. Portable, durable, easy-to-read, stable - people like books, and they aren't going away any time soon.

But what about casebooks? They're heavy, inconvenient, not terribly portable - and no one really has warm fuzzy feelings about curling up with the latest edition of Gunther. (Co-Blogger Nate may be an exception). Can we safely make a prediction about the death (or at least transformation) of the casebook?

I can see a number of advantages to a purely electronic casebook: (1) weight, or lack thereof (bits are light); (2) ease of updating (no more supplements); (3) customizability (no need to buy all those extra chapters); (4) ability for students to cut and paste into outlines; (5) multimedia, etc.

I can also see several disadvantages: (1) lack of access to computers; (2) dislike of reading material on a computer screen; (3) lack of portability. But it seems to me that two of these disadvantages are becoming less significant as (1) computers become ubiquitous in law school; and (2) people seem increasingly comfortable reading material off of computer screens.

So, is anyone ready to predict the death of the casebook? Are we stuck with casebooks? Or is there some interesting hybrid we should be looking forward to? (Note this is not a purely disinterested question, as I'm currently working on a casebook).

Posted by Joseph_Liu at 08:42 PM | Comments (10) | TrackBack

Short movie remakes

I just noticed the new Empire Strikes Back animated gif created by Folds Five. (via Boing Boing). This is the latest in a series of modified movies that seem to be proliferating on the internet, ranging from the "movies in 30 seconds, as re-enacted by bunnies" of Angry Alien to the recent, hilarious redone trailer of "Shining" which recasts the classic horror movie as a Cameron Crowe style family comedy.

Many of these make me laugh. I'm not so sure about their legality, though. Parody? Maybe. (Are they clearly parodies?) Fair use? Again, maybe. But I wouldn't really want to bet the farm on either of those. What do our IP experts think?

Posted by Kaimipono at 03:52 PM | Comments (6) | TrackBack

Will Christine Hurt recruiting at Jenkens & Gilchrist?

The American Lawyer has picked up on Christine's earlier post at Conglomerate, criticizing the cheesy recruiting video put together by J&G.

As AmLawyer notes, the video was put together in "fun." Nevertheless, Scott Moss and other commenters have pointed out the real issues that could come out of this. Is the video introduceable as evidence in a future discrimination lawsuit? Law firms are supposed to be smarter than this. At a big firm, someone is (or should be) vetting everything that goes out the door.

And law firms often do have deep-seated underlying problems with gender. Speak off the record with attorneys at many big firms, and you're likely to hear about all sorts of potential concerns: alcohol-fueled team visits to strip clubs; female secretaries paid to keep quiet about harrassment; questionable relations between male associates and female paralegals; and so on.

This isn't to suggest that J&G has any such problems itself (I have no knowledge whether it does or does not). And it's not to suggest that the video is actionable itself.

But if J&G is sued for other alleged violations, the video potentially takes on new significance. A smart plaintiffs' attorney will try to connect the video to any other problems. The video could make it harder for the firm to disavow the acts of any particular associate or partner. I'm no employment law expert, but I know that's a case I wouldn't want to have to defend. All because someone tried to be funny.

As Christine correctly notes, "it's always funny until someone reads it back to you at a deposition."

Posted by Kaimipono at 02:43 PM | Comments (0) | TrackBack

Law books just want to be free

One of the things that has suprised me most about becoming a law professor is the quantity of free material everybody suddenly wants to send me. Representatives from every imaginable legal publisher send me copies of a dozen different books or supplements each month.

Not that I'm complaining. I enjoy being catered to, the free books are nice, and I even manage to read a few of them. But a large (and growing) stack of them are ones that I'll probably seldom, or never, even open. And like Christine, I'm starting to wonder just how much my own stack of never-gonna-open-em books contributes to the $100 price tag of law books. Is it more than Ian Ayres' $10?

Posted by Kaimipono at 02:23 PM | Comments (5) | TrackBack

To Blog, or Not to Blog

Over at his blog, Goldman's Observations, Professor Eric Goldman (law, Marquette) has some thoughtful observations about the pros and cons of blogging. For example, Goldman notes:

Blogging is a way of organizing data for my own future retrieval. For example, for the last 2 years, John Ottaviani and I have published a list of the top 10 cyberlaw/IP cases of the prior year. With the blog, it's very easy to see what I've blogged about and pick the top cases from that.

This is one of the advantages of blogging that is often not mentioned in discussions about blogging. For me, it's very true. I like knowing that with each post, I'm creating a kind of reference for something I want to remember. Instead of scrawling notes to myself and stuffing them away in manilla folders, I just put my thoughts in blog posts. So folks, when you're reading this blog, you're really getting a (slightly) more polished version of what I'd be jotting down on scratchpads. Not worth a whole lot -- but the blog's free, so you have no right to complain.

Posted by Daniel Solove at 12:53 PM | Comments (0) | TrackBack

The Open Library

The Open Content Alliance's Internet Archive, which plans to scan in over 150,000 books next year, has set up a website where people can preview a few books: The Open Library. The format is quite striking, providing a great readable image of the actual book pages in the original.

The Open Content Alliance is composed of a group of university libraries, nonprofits, as well as companies such as Microsoft (MSN Search) and Yahoo!. According to the website:

The Open Library website was created by the Internet Archive to demonstrate a way that books can be represented online. . . .

Books are scanned and then offered in an easy-to-use interface for free reading online. If they're in the public domain, the books can be downloaded, shared and printed for free. They can also be printed for a nominal fee by a third party, who will bind and mail the book to you. The books are always FREE to read at the Open Library website.

It doesn't capture the smell and feel of an old book, but visually, it's wonderful to peruse the pages.

Hat tip: BoingBoing

Posted by Daniel Solove at 10:37 AM | Comments (0) | TrackBack

Free Credit Reports: My Exciting Adventure

Under the federal Fair and Accurate Credit Transactions Act of 2003, the credit reporting agencies must provide a yearly free credit report to individuals who request it. This was one of the benefits given to consumers by the law in return for extending the federal preemption of certain state law regulations.

There are three major credit reporting agencies: Equifax, Experian, and Trans Union. You may have heard that there's a new website where you can conveniently get your credit report from all three agencies. Since I pay attention to this field of law, I knew the name of the website, but many people I've spoken to don't know what it is called.

But we live in the age of Google, so most people would just do a Google search for "free credit report." Here's what you pull up in your search:

The first link, www.annualcreditreport.com, is the bona fide website. But many people might be confused by the second website in the list, called www.freecreditreport.com. [For a while, the Free Credit Report website pulled up first in the Google search results, but now it is ranked second.] Suppose that a person mistakenly went to this website:

Looks like a great site. You can get your free credit report. But wait . . . if you read carefully:

Thus, this isn't the free credit report that is promised by law. Instead, it is a way to get people to sign up for credit monitoring service which costs $12.95 per month, or over $150 per year. This website is run by Experian, one of the credit reporting agencies that is by law required to provide you with a free credit report at www.annualcreditreport.com.

To be fair, the website does provide a link to the Annual Credit Report site, but then it says: "Remember, all free credit reports are not created equal. Get your Free Credit Report and Credit Score from the leading provider of consumer credit monitoring products." So I guess that the message is you can get the crappy free credit report from the official Annual Credit Report website, or get the better free credit report from Experian which isn't free.

But I wasn't fooled. I went to the Annual Credit Report site and began the process. Here's what the official Annual Credit Report site looks like:

It generally worked well. It directs you to each of the credit reporting agencies' websites, where you either have to establish an account or answer certain questions to verify your identity.

Some of these questions were tough. One credit reporting agency asked me three multiple choice questions: (1) the name of my mortgage company (easy); (2) my monthly payment amount (not so easy, since it's automatically deducted from my bank account -- I had to dig up the statement to find the precise amount); and (3) the name of a street I once resided on (very hard). The last question was hard because the correct answer was a street I lived on while I was clerking for a judge in Los Angeles about 6 years ago. I lived there for just a year, and didn't really remember the street name very well. But I guessed it correctly! Yippee!

The other thing of note is that many of the credit reporting agencies kept trying to sell me my credit score. Trans Union was particularly aggressive. It put up an entire screen urging me to pay $5.95 for it. I said "no thanks."

But then, in a nice tricky way, toward the end of my session, after I got my credit report, it prompted me like this:

I almost fell for it. After all, it was on my "remember" to do list, as if I had forgotten to take this important step. And apparently, Trans Union and I are on a first name basis. With all they know about me, I guess it would be odd if we weren't on a first name basis.

In the end, I got all my credit reports, and escaped without paying a dime. That wasn't easy, though. . .

Some thoughts overall:

1. The official website should be www.freecreditreports.com, not www.annualcreditreports.com, which nobody can remember. By maintaining the www.freecreditreports.com website, Experian is causing confusion and is exploiting its legal requirement to provide free credit reports to hawk its expensive credit monitoring service instead.

2. It seems unseemly that credit reporting agencies are exploiting their legal requirement to provide free credit reports to consumers to sell various services and products. This shouldn't be about making a quick buck from consumers. It's part of their legal responsibility to provide consumers with better protection against identity theft -- it shouldn't be a marketing opportunity.

3. The thought that I can't obtain another free credit report for a year strikes me as very problematic. That's a long period of time not to be monitoring one's credit report. Of course, I could pay to see my credit report more often . . . and my guess is that the credit reporting agencies would be more than happy to take my money.

For some more reflections on using the Annual Credit Report site, see Eric Goldman's (law, Marquette) post from earlier this year. I also posted about the issue at PrawfsBlawg.

Posted by Daniel Solove at 12:29 AM | Comments (10)

Debate on Privacy and Security Regulation

There is an interesting set of debates going on this week over at CNET about information privacy and security regulation.

Participants include: Orson Swindle (former FTC commissioner); Jim Harper (director of information policy studies at the Cato Institute; member of the Department of Homeland Security's Data Privacy and Integrity Advisory Committee); Chris Hoofnagle (Director, Electronic Privacy Information Center West Coast Office); James Van Dyke (Founder and Principal of Javelin Strategy & Research); and California Senator Joe Simitian.

There are new topics each day. Today's topic is state versus federal regulation of privacy and security, and the debate has also addressed the issue of whether common law tort regulation is preferable to legislative statutory regulation.

Posted by Daniel Solove at 07:57 PM | Comments (0) | TrackBack

Win A Dream Getaway to the AALS Annual Meeting!!

I couldn't believe my eyes. It was just too good to be true. Just a few minutes ago, I got this email from the law school casebook publishing company, Foundation Press:

Tell me who you are and enter to win a trip to AALS: In order to bring you the most current and valuable information on Foundation Press publications in your subject areas, please take a moment to complete a short questionnaire to help me better understand your needs. When you do, you will be entered into a drawing for a trip for two to the Association of American Law Schools (AALS) 2006 Annual Meeting in Washington, D.C., January 3-7, 2006. The winner will be chosen from all law school faculty that complete the survey by November 11, 2005 - so hurry! For more information, see complete contest details.

Wow! A dream vacation. A trip to the AALS annual meeting -- perhaps the world's most exciting event! At the Marriott Wardman Park hotel, which evokes so many wonderful memories of the days when law professors were interviewing for jobs. And Washington, DC in January! I'm visualizing the sandy beaches, palm trees, warm tropical breezes, and glorious sunsets. It just can't get any better. This is a prize truly too good to pass up.

Posted by Daniel Solove at 03:53 PM | Comments (0) | TrackBack

Unusual Law School Classes

I recently posted about a law school course about wine, only to discover that it’s not all that unusual. That got me thinking fondly of my days in law school, where there were many unusual courses – probably due to the fact I went to Yale. I located my old course bulletins, and here are 10 of my favorite unusual courses from those bulletins.

I also thought I'd invite readers who went to law school, are now in law school, or who are teaching in law school, to post in the comments their favorite unusual law school classes. And I thought I'd make a quiz out of this too.

· Favorite Unusual Courses: Please post in the comments some of the unusual courses from where you teach or where you went to school. Please be sure to indicate the law school where the course is taught. Any links to online course listings, if available, would be helpful to verify that the courses are indeed real. In the alternative, feel free to email the courses and descriptions to me.

· Quiz: A bit of puzzleblogging (inspired by the Volokh Conspiracy): Can you guess who taught these courses? Below the courses, I provide a list of instructors to select from. Extra credit: I took two of the ten courses below -- guess which ones. Winner's Prize: A whole lot of nothing.

Courses from the Yale Law School Bulletin

1. ART, LOVE, AND POWER: A PHILOSOPHY OF AMERICAN LAW
If morality is defined as recognition of the limits imposed upon one, then good law is an effective moral force. This seminar will explicate such a view and apply it to U.S. society.

2. BEARING WITNESS
In many law school courses, the primary focus is on law itself. In others, one or more of the law’s dramatis personae take center stage—the judge, the jury, the lawyer, the legislature, and occasionally even the litigant. This seminar will focus on an oft overlooked player – the witness – and on the very idea of witnessing.

3. THE LAW AND ECONOMICS OF ART AND MORTALITY
This seminar will examine, with the aid of economic analysis, two problems of international importance involving divided property rights. The first is the scope of the rights held by the original artist, and those held by the government or public, in works of art. The second is the institution of the trust. . . .

4. MODERNITY
Many theoreticians today insist that political and legal phenomena be analyzed from the perspective of power. The political order, they say, cannot be adequately comprehended within the classical norms of reason and virtue. This seminar will trace the origin and development of the modern analytic of power, beginning with readings from Machiavelli and Hobbs. A considerable portion of the class will be spent on Neitzsche. . . .

5. TRAGIC CHOICES
A consideration of those choices which a society cannot avoid making, whether explicitly or implicitly, but which, however made, undermine fundamental values of that society. Three paradigmatic situations (allocation of artificial kidneys, service in a limited war, and population control) will be discussed. . . .

6. IS CONSTITUTIONAL LAW LAW?
This course assumes (1) that law postulates coherence, communicability, and reasonable impersonality; and (2) that reasonable impersonality is a higher standard than the possibility that, given sufficient facts, one can predict at least five votes. Given these assumptions, the challenge will be to produce an analysis (in the form of a paper) that meets such a standard in connection with any constitutional topic sufficiently broad that decisions are both (1) reasonably numerous and (2) not wholly technical.

7. LAW AND GRACE
In the West, we view the rule of law from two qui different perspectives. From one, law expresses the social contract: it rationalizes desire and thus brings stability, peace, and order to the chaos of nature. From the other, law expresses only the conditions of existence after the Fall. Under this tradition, law is not the answer to the problem of the state of nature but is itself a problem, which must be solved by grace. This seminar will explore the second tradition. Readings will include the works of Plato, St. Paul, and Shakespeare.

8. LAW, SECRETS, AND LYING
An examination of the legal treatment in the control of one party and desired by or valuable to another. Examples will be drawn from constitutional law, contracts, criminal law, intellectual property, legal ethics, procedure, securities regulation, and other fields. The politics of concealment, especially the various justifications offered for lying (by the president, by witnesses) to the Congress and American public will also be discussed. . . .

9. LAW AND THE HUMAN SUBJECT
When it comes to understanding the human subject—e.g., how we process information, handle internal conflict, function under conditions of stress, and comprehend the ineffable—our legal system operates at a level of sophistication that pales in comparison to politics, marketing, and even the comic strip Sylvia. This seminar will explore these themes, with particular attention to the prospects and consequences of doing better. Readings will be drawn largely from the cognitive and behavioral sciences.

10. PUBLIC LIFE IN THE MODERN WORLD
Where in the modern world are opportunities and occasions for public action to be found? Or is this world, with its bureaucracies and consumerism and privatizing of experience, hostile to public life in all its forms? Has public life in fact disappeared from the world, and if so, what has replaced it? The Revolution of 1989 in Eastern Europe seems to contradict these skeptical musings, and special attention will be paid to that world historical experience. Readings from Nietzsche, Heidegger, Arent, Foucault, Weber, Habermas, and others.

List of Instructors

Please note that one professor below might be the correct answer to more than one course. And I’ve thrown in a few professors who do not teach any of the above courses.

(a) Jan Deutsch and J.L. Pottenger, Jr.
(b) Guido Calabresi
(c) Paul Kahn
(d) Akhil Amar
(e) Henry Hansmann
(f) Harlon Dalton
(g) Jules Coleman
(h) Jan Deutsch
(i) Bruce Ackerman
(j) Stephen Carter
(k) Paul Kahn and Anthony Kronman
(l) Owen Fiss and Anthony Kronman
(m) Reva Siegel

By the way, this post isn’t meant to mock these courses. It often isn’t the subject of a course that matters most, but the way that it is taught that has most lasting influence and impact on one’s thinking and legal abilities. This post is not meant to open a debate on whether certain courses are practical enough; nor is it to serve as a forum of disrespectful comments. Please only post answers to the quiz or your favorite unusual courses (from any law school). Thanks.

Posted by Daniel Solove at 10:07 AM | Comments (32) | TrackBack

What Your Blog Is Worth

Show me the money! Business Opportunities Weblog has created a nifty calculator that computes what your blog is worth. (Hat tip: BoingBoing.) According to the description:

Inspired by Tristan Louis's research into the value of each link to Weblogs Inc, I've created this little applet using Technorati's API which computes and displays your blog's worth using the same link to dollar ratio as the AOL-Weblogs Inc deal.

Tristan Louis's valuation scheme is based on AOL's recent purchase of Weblogs, Inc.:

AOL bought Weblogs inc., the two year old weblog network founded by Jason Calacanis and Brian Alvey, for a number that is rumored to be anywhere between $25 million and $40 million. In this process, Time Warner may be providing some ideas as to the valuation of blogs by traditional media.

This link provides the rest of his rationale for his valuation scheme, which is based on the links to a blog, not the visitor traffic. I'll leave it to those with more expertise to assess the strength of his valuation scheme.

So, using the blog value calculator provided at Business Opportunities Weblog, and without further delay, the value of Concurring Opinions is . . . drumroll . . . $33,307.86. And we're not even a month old yet!

Here are the results for some popular law blogs. Not all blogs come up with values, including some very popular ones, so I don't vouch for this one bit. But it sure is fun plugging in URLs:

Volokh Conspiracy = $1,327,798.08
-- Orin, your colleagues expect many fine dinners and drinks on you
Balkinization = $285,092.70
Discourse.net = $173,878.32
Ideoblog = $55,889.46
Conglomerate = $135,489.60
Crescat Sententia = $114,601.62
How Appealing = $276,624.60
Instapundit = $3,826,452.12
-- Nearly $4 million.  Wow!
Legal Theory Weblog = $166,539.30
Leiter Reports = $260,817.48
SCOTUSBlog = $587,121.60
Yin Blog = $46,856.82
Underneath Their Robes = $163,716.60

And finally, the Harriet Miers's Blog! is worth $277,753.68. By the way things are looking, she should sell now.

Posted by Daniel Solove at 01:50 AM | Comments (3) | TrackBack

Genetic Testing: Further Debate with Richard Epstein

Richard Epstein has posted a reply continuing our debate over whether employers should be able to use genetic testing information to make employment decisions regarding employees. Here are the posts in our debate so far:

1. Solove, IBM vs. NBA: Using Employee Genetic Information
2. Epstein, Two Cheers for Genetic Testing
3. Solove, A Reply to Richard Epstein on Genetic Testing
4. Epstein, A Third Cheer for Genetic Testing

Epstein’s latest reply, A Third Cheer for Genetic Testing, slips in another cheer for genetic testing. He asserts that my argument that genetic information only reveals propensities, not the presence of certain conditions, actually cuts in favor of employers using genetic information:

That information should not make the employer instantly hand out a pink slip. It is one factor among many to be taken into the overall assessment. The insurance could be supplied, but in exchange for an additional premium that reflects that additional risk. Or the health insurance could be supplied subject to an exclusion for the risky condition. Judgments like that are made all the time in the insurance business, and there is no reason why they cannot be made with the processing of genetic information.

Epstein is certainly correct that genetic information is helpful in assessing risk, and he is right that employers need not just fire or refuse to hire people with genetic predispositions. But there are larger normative issue at stake: What risks ought people to bear? Who ought to bear these risks? How ought these risk to be distributed throughout society?

With insurance, there’s the issue of how equal a risk distribution one wants to achieve. We could have health insurance, for example, that is prohibited from charging people extra based on pre-existing conditions. In other words, we all bear the cost of health insurance equally. Another model is for those who are more at risk to pay higher premiums and those who are less at risk to pay lower premiums. I ge