« October 16, 2005 - October 22, 2005 | Main | October 30, 2005 - November 05, 2005 »

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 generally support insurance that is more equal – even if that means I pay more. The primary benefit of insurance, I believe, is to spread risk throughout society so as to eliminate certain contingencies in life. Society as a whole absorbs these losses, rather than particular individuals. Unfortunately, insurance only partially functions in this way today.

Epstein also takes issue with my arguments about countervailing values such as freedom and autonomy as well as privacy. He argues that employers have freedom too:

There is nothing in the ideal of personal freedom or autonomy that requires one individual to offer a subsidy for the health care of a second. . . . Solove’s revised notion of autonomy and freedom, but only for some, means additional duties imposed others. Yet no justification for that imposition on employers is given.

Everything in life involves a tug-of-war between freedom and duties. Tort law, for example, imposes duties on everybody’s conduct, and thus limits everybody’s freedom. The law routinely limits the freedom of some to promote the freedom of others. That said, Epstein makes a fair point in demanding a justification for why employee freedom should trump employer freedom with regard to genetic testing. I believe that employers already stand in an incredibly powerful position vis-à-vis employees. Employers have a vastly greater ability to limit employee freedom than vice versa. The law recognizes the profound power of employers and will often try to equalize the employment relationship, such as through laws regulating sexual harassment and workplace safety.

Epstein challenges my argument about privacy as a countervailing value:

The appeal to privacy is subject to similar limitations. No doubt privacy covers the case where individuals want to snoop into the private lives of others. But here the deal is quite simple: either you waive your right to privacy or you will not receive a job from me. People waive their liberties when they agree to work for another individual. They can, if they choose, waive their privacy rights as well.

People indeed are forced by employers to waive many rights, but to say this still leaves open the question of whether the law should allow employers to force people to waive particular rights. We could allow people to sell themselves into slavery; we could allow employers to force people to consent to sexual harassment or to ultra-dangerous workplace conditions. But we impose limits on what employers may reasonably require an employee to consent to.

Genetic testing should be one of those limits. Employers should not be privy to everything in a person’s life, even things that are relevant for the job. For genetic information, there’s a social value in preventing people from being disadvantaged for reasons beyond their free will.

One of the greatest advances of civilization, in my opinion, is the attempt to help ameliorate the horrible contingencies nature and chance create: hurricanes, earthquakes, diseases, accidents, pestilence, fire, and countless other calamities. Without protection against these catastrophes, life becomes all the more precarious. A person’s entire life’s labor and toil can suddenly be wiped out in a stroke of bad luck. Fortunately, we’ve found ways to eliminate these contingencies. We spread and redistribute risk. We protect those who have suffered bad luck. And in return, we can live life with at least some measure of protection from the vagaries of chance and the harshness of nature.

I believe that such a system is much more preferable than one that places the risk on the lone individual, who, through no fault of her own, finds herself dealt a bunch of “bad” genes. So we could say “tough luck” to the person who has “bad” genes or “tough luck” to the employer who hires that person. I’d rather have the employer bear that burden. Employers generally have more power and options to absorb the loss and to figure out how to insure against and ameliorate the risk.

Posted by Daniel Solove at 12:11 AM | Comments (5) | TrackBack

Orly Lobel at TJ

I just had the pleasure of listening to Orly Lobel's talk here at TJ, "Sleeping with the Enemy or Effective Public Management?: Government/Industry Cooperation for Promoting Workers' Rights." Her talk was loosely based on her forthcoming article in the Administrative Law Review, Interlocking Regulatory and Industrial Relations, The Governance of Workplace Safety.

Orly presented three major ideas: First, that a diversification in the forms of safety regulation could increase the effectiveness and legitimacy of governance; second, that principles needed to be developed for evaluating the effectiveness of shifts away from command and control; and third, that legal boundaries between labor and adminitrative law regimes have important effects on the ability to implement new types of governance. For examples of how these ideas work in real life, she discussed regulatory reforms in Maine, as well as a nationwide, voluntary safety certification program. Orly is an engaging speaker, and I found her presentation -- on a topic about which I know next-to-nothing -- to be interesting and informative. And I've made a mental note to keep an eye on her scholarship, which is a fun mix of empirical work and theoretical discussion.

Posted by Kaimipono at 04:21 PM | Comments (0) | TrackBack

Another Note on the Influence of Bloggers

In response to Dan's post on the influence of bloggers, Oren Kerr and Todd Zywicki chime in here and here. The discussion reminds me of a story that I recently heard. Each year, the Republicans in Congress have a retreat to the Greenbrier resort in West Virginia. This year one of the major themes at the retreat was the role of blogs in the 2004 election. In particular, most GOP Senators think that Daschle was largely brought down by local bloggers who played watch dog to the local, pro-Daschle press by highlighting positions taken in Washington that were to the left of his constituents. I don't know that this blip has transformed itself into any deep and abiding interest (and hence influence) on the Hill. Still, the message at Greenbrier seems to have been that politicians ignore the blogosphere at their peril.

Posted by oman at 03:43 PM | Comments (0) | TrackBack

Google & Grokster

Being new to the blogosphere, I missed out on the initial round of comments on the pending litigation between the Authors Guild and Google over Google Print, Google's effort to create a searchable database of print books. My sympathies tend to be with Google, as I have yet to see a strong, non-circular argument that authors would be economically harmed by Google Print (at least as I have heard it described).

But even if you believe, as do I, that Google's activities are or should be fair use, there's an interesting separate question re: what efforts, if any, Google should be obligated to take to keep the digitized books secure from third parties. For example, what if third parties could use Google Print to easily reconstruct full digital versions of print books (e.g. by sending a series of overlapping queries to Google Print and reassembling the search results)?

Presumably, Google could implement all sorts of technical measures to make this kind of activity more difficult (and indeed, there is some indication that it has implemented them). But what if it didn't implement any of these measures? Should it be obligated to?

Doug Lichtman suggests that a failure to implement security measures might affect whether Google Print's activities are fair use in the first place. But I wonder whether this might also be relevant for purposes of third party liability. That is, could Google be held contributorily liable for the actions of third parties who used Google Print to re-construct the printed works, if it failed to provide any measures to prevent this kind of activity?

This hypo raises, at least for me, difficult questions about the proper scope of third party liability. On the one hand, I'm generally wary of imposing requirements on technology companies to protect copyrights, and quite skeptical about the ability of courts to make proper judgments about what should be required. On the other hand, in this situation, I find it hard to argue that Google has no responsibility at all to implement reasonable measures that would keep third parties from reproducing the digital books.

Posted by Joseph_Liu at 03:33 PM | Comments (1) | TrackBack

Are Bloggers Having an Influence Inside the Beltway?

From the National Journal’s Beltway Blogroll Blog, Daniel Glover takes a skeptical look at the influence of blogs:

This year, bloggers are the figurative freshmen of larger Washington. They have won enough respect in certain pockets of America to claim occasional seats at the policymaking table -- but they are definitely back seats.

That reality has been abundantly evident the past couple of weeks, as conservative bloggers have been showered with ever more attention from the Republican powers that be -- yet have nothing substantive to show for it.

The battle over Supreme Court nominee Harriet Miers illustrates the point well. Many bloggers oppose her nomination -- a poll at The Truth Laid Bear puts the opposition-to-support ratio at more than 4-to-1 -- but President Bush seems determined to stand loyally by his lawyer.

Although the opposition from bloggers spurred the Republican National Committee to hold its first-ever exclusive conference call with bloggers, the event was more about wooing bloggers than inviting them into a conversation, which is what bloggers want. The same was true of a second call about a week later. . . .

Bloggers are not powerless in policy circles and actually are gaining influence. Otherwise, official Washington would pay them no mind whatsoever. . . . But bloggers today are not as persuasive or as intimidating as they might like to believe.

I don’t agree. As I blogged earlier, I believe that the blogosphere has been playing an extremely important role in the Miers appointment process. While the true power of the blogosphere has yet to fully be manifested, it has been a large part of the pushback against the nomination.

The fact that Bush still stands behind Miers is not an indication of the blogosphere’s failure. The blogospheric reaction certainly has the Administration reeling. The blogosphere has registered the dislike for the nomination in a much more potent and articulate way than a mere poll.

I also believe that bloggers have helped shape the debate on the issue. The blogosphere has led to many experts, who might just get a soundbite in the print and TV news, having a much larger influence in shaping the debate. The mainstream media has picked up on this and turned it into a lead story for the Miers nomination. The eyes of the media and those inside the Beltway are looking at the blogosphere to guage the way the debate is progressing.

There do not seem to be many sure votes in the Senate for Miers, and it is becoming difficult for Senators to support Miers without believing that they’ll take a big political hit. 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.

Posted by Daniel Solove at 12:40 PM | Comments (14) | TrackBack

eBay and Unfortunate Wardrobe Choices

Thanks to Dan, Kaimi & Nate for inviting me to guest blog this week. I feel a bit like I've been tossed the keys to a fancy sports car (one with lots of cool gadgets!), and so I alternate between a desire to floor it and a fear of driving into a telephone pole.

On that note, let me start with a weighty post on how eBay is making the world more efficient by freeing up articles of clothing that would otherwise remain consigned to the backs of closets everywhere. See, for example, the following auction for "DKNY Men's Leather Pants I Unfortunately Own":

You are bidding on a mistake.

We all make mistakes. We date the wrong people for too long. We chew gum with our mouths open. We say inappropriate things in front of grandma.

And we buy leather pants.

Click here to see the rest of the auction text.

Posted by Joseph_Liu at 11:14 AM | Comments (0) | TrackBack

FBI Intelligence Violations

The Washington Post is reporting on documents obtained by Marcia Hofmann at the Electronic Privacy Information Center that demonstrate a number of FBI intelligence surveillance violations:

The FBI has conducted clandestine surveillance on some U.S. residents for as long as 18 months at a time without proper paperwork or oversight, according to previously classified documents to be released today.

Records turned over as part of a Freedom of Information Act lawsuit also indicate that the FBI has investigated hundreds of potential violations related to its use of secret surveillance operations, which have been stepped up dramatically since the Sept. 11, 2001, attacks but are largely hidden from public view.

In one case, FBI agents kept an unidentified target under surveillance for at least five years -- including more than 15 months without notifying Justice Department lawyers after the subject had moved from New York to Detroit. An FBI investigation concluded that the delay was a violation of Justice guidelines and prevented the department "from exercising its responsibility for oversight and approval of an ongoing foreign counterintelligence investigation of a U.S. person."

In other cases, agents obtained e-mails after a warrant expired, seized bank records without proper authority and conducted an improper "unconsented physical search," according to the documents.

These FBI investigations were done pursuant to the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801-11, a law passed in 1978 to regulate foreign intelligence investigations. FISA creates a very secretive regime. A secret court hears applications for orders, and all proceedings remain secret. Generally, the only reported information about FISA consists of annual reports to Congress that just show the number of FISA orders applied for and the number granted. Nearly all are granted.

While the need for secrecy is important in such investigations, is there too much secrecy? In one article, I observed:

The problem with FISA is its secrecy. Of course, monitoring foreign agents on United States soil is difficult without secrecy. But as William Banks and M.E. Bowman observe, “[t]he secrecy that attends FISC proceedings, and the limitations imposed on judicial review of FISA surveillance, may insulate unconstitutional surveillance from any effective sanction.” Under FISA, the entire proceedings are held ex parte, with nobody permitted to argue the opposing side. Only the government has the opportunity to appeal. The government thus gets two bites at the apple, and the courts only hear the government’s side.

Posted by Daniel Solove at 12:28 AM | Comments (2) | TrackBack

Introducing Guest Blogger Joseph Liu

For the next few weeks, Professor Joseph Liu from Boston College Law School will be visiting with us. His interests include intellectual property, copyright, trademark, property, Internet law, and software law.

Joe graduated from Columbia Law School, where he was the Editor-in-Chief of the Columbia Law Review. He subsequently received an LLM from Harvard Law School. He clerked for The Honorable Levin H. Campbell on the U.S. Court of Appeals for the 1st Circuit, practiced at Foley, Hoag & Eliot in Boston, Massachusetts, and then began teaching at Boston College Law School in 2001.

A few of his recent articles include: Regulatory Copyright, 83 N.C. L. Rev. 87 (2004), The DMCA and the Regulation of Scientific Research, 17 Berkeley Tech. L.J. 501 (2003), Copyright Law's Theory of the Consumer, 44 B.C. L. Rev. 397 (2003),  and Copyright and Time: A Proposal, 101 Mich. L. Rev. 409 (2002).

We’re delighted to have Joe visit with us.

Posted by Daniel Solove at 12:01 AM | Comments (0) | TrackBack

Not Being Part of the Shared National Experience

I don't have a television. Or to be more precise, I do have a television (a DVD/TV/Video combination no less) but is not connected to anything. Hence, the only TV images that I see are movies, DVDs, etc. As a result, I get all of my news from either print or internet sources. (And BTW, I hate watching TV on the net, so I never do it.) Now I could wax very Neil Postman, and go on and on about the superiority of the written word. My decent into TV-lessness, however, was -- as befits a student of the common law -- considerably more ad hoc. When my wife and I moved from Boston to Little Rock for my clerkship, we never got around to having the cable hooked up. One evening a month or so after we had arrived there, we were talking and realized that (a) we didn't have TV; and (b) we liked it. We found that we had more time, talked more to each other, and could limit and control our son's exposure to TV. So we simply formalized our inertia and disorganization into a decision. On the whole, it has worked rather nicely. Still, at times I feel like I don't live in America.

A case in point is Miers. I have read a number of stories about her, and I am not impressed. Her nomination strikes me as a waste. Any Supreme Court opening is a chance to pick someone whose opinions will go into the Big Books, and given the fact that as a lawyer I will spent much of the rest of my life slogging through any justice's work product, all things being equal I see no reason to be excited about twenty years with Harriet. However, a number of my friends have commented to me on her poor verbal performance, or how awkward or uncomfortable she looks, or the sorry state of her hair, or so on. These are images that I just don't see. I am blind to them. I don't think that this makes me a better news consumer than my friends (almost all of whom are better informed than me). Indeed, no doubt Miers's gait and appearance provide us with important information about her. I clerked for a man that I regard as a great judge, and there was definitely something about his shuffle and haircut that bespoke jurisprudential depth. I noticed that same loss of shared experience when Katrina hit. I read about the extent of the devastation and saw some photographs, but I didn't have the immediacy of the television that my friends talked about.

Not experiencing shared television images is a good way of realizing how much of our shared national experience takes the form of such images. It creates this odd dynamic in which at times I feel as though I am in America but not of it. (Or perhaps I am of it, but not fully in it.) This may explain why I consistently find that The Economist provides the news coverage of America that resonates best with me. Both of us are -- for different reasons -- semi-detached observers of the national scene.

Posted by oman at 08:53 PM | Comments (3) | TrackBack

What Should Democrats Do Regarding Harriet Miers?

Paul Horwitz at PrawfsBlawg raises the difficult strategic dilemma for Democrats on the Harriet Miers nomination:

Therein lies the Democrats' dilemma -- actually, a double dilemma. 1) They do not want to oppose Miers loudly if they think her replacement might be a Luttig or a Brown, both because those judges are a more potent threat to their desired outcomes and because such nominations would be a political and fundraising prize for conservatives. 2) They also may not want to be on record as viewing mediocrity as a disqualification for the Court, since it constrains their own future choices.

Put slightly differently, the argument for Democrats in favor of Miers is this: Although Miers is relatively unknown, there are some indications that she might be moderate, even liberal, on key issues. An alternative replacement for Miers might well be much more firmly committed to conservative positions and be a more reliable conservative vote. If Miers turns out to be a consistent conservative vote, there are many indications that she won't be a great superstar on the Supreme Court, and hence, she won't be as effective as a replacement who might very well be a superstar. Furthermore, if Miers gets appointed, it will perpetuate great tensions amongst the Republicans.

Should this argument incline Democrats toward supporting Miers?

The liberal and political strategist in me is enticed by this argument. On the other hand, the intellectual and academic in me bristles at putting somebody on the Supreme Court who, by all indications thus far, does not seem to have the qualifications to be a great Supreme Court jurist. Ideally, I want a Supreme Court filled with brilliant distinguished jurists.

The problem is that a brilliant distinguished conservative justice is likely to be very effective at crafting persuasive opinions, at steering the direction of the law, and at having a lasting impact on the Supreme Court. A mediocre justice might not be likely to have these effects.

Thus, the difficult question is: Should one should favor a mediocre justice who might vote the way one wants or who will do the least amount of damage or the brilliant justice who might have more of a dramatic impact in ways one might disagree with?

Ultimately, the academic and intellectual in me wins out. I still like to believe that a Supreme Court justice is more than a vote, and that intelligence should trump ideology. I put my faith in these beliefs, but I spend many an uneasy night thinking about this issue.

Posted by Daniel Solove at 08:35 PM | Comments (4) | TrackBack

Spam Poetry

I'm continually getting spam from a spammer who uses randomly generated phrases for the email subject lines. To some ears, it might be meaningless drivel, but to other ears, the spam is really an ongoing poem, delivered one line at a time. These are the actual subject lines:

To write in magenta colossal
you be but blimp measurement
Go play darts magnesium
Re: esophagi, do you love me or not?
I find my mispronounce british
so live go restore
On learn to pallet
To make do periods contortion
Re: her travel no economics
Wanna get a drink? pantomimic theoretic
doctrinaire rosary
Fwd: radish demented
Freedom for everyone
On look on precious hepatitis
Re: stress, This is the time of your life
Wanna get a drink? cryptogropher indorse
Go explain be school roughage
do reply to rap

And who thought spammers couldn't be poets?

Posted by Daniel Solove at 12:05 AM | Comments (0) | T