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Who's Your Daddy?

Nepotism is at work in the legal academy. The next time you wonder how a professor with an unremarkable resume landed a job, check the family tree. You’re likely to find—sometimes even in the very same school—a professor parent.

Or spouse. Husband and wife professors complain about the burdens of finding work as an academic couple, but being married to a high-profile professor can be a significant career booster. Schools that badly want a professor will lower their standards and hire that professor’s spouse—or work things out so that the spouse can teach at another school in the vicinity. (The practice seems to be a benefit of heterosexual marriage: I’ve never heard of a same-sex couple being treated so favorably.)

Judicial clerkships are a route to teaching but here too nepotism is common. Judges are prohibited from hiring their own family members but the rule doesn’t extend to the family of a current or former law clerk. Husbands and wives, brothers and sisters, sometimes even parent and child, clerk for the same judge or justice—passing around the clerkship like it’s the family silver.

Is nepotism in the legal academy a bad thing? Perhaps not. Nobody has a right to be a professor and personal connections help in almost any field of employment. It’s probably less risky for a school to hire a junior academic who is the offspring of an established professor than it is to hire an unknown. Using Junior to cultivate ties with a famous parent might also be good for the school. Hiring a mediocre spouse might be the price of getting a superstar. Maybe academic couples contribute disproportionately to the life of an institution

On the other hand, universities uniquely cultivate a strong culture of merit. (Lots of law professors look down on George W. Bush for this reason.) Do good work, we tell ourselves and we tell our students, and you will go far. There are special reasons to question nepotism in the legal academy.

Posted by Jason_Mazzone at 12:51 PM | Comments (3) | TrackBack

The Ontology of Blogging

Dan's critique of some of the interesting mistakes made by Pajamas Media is dead on, in my opinion. His post also calls attention to the fact that blogs and blogging have qualities that are not always grasped easily -- even by businesses heralding the medium. For instance, here's what PM says about blogs:

Readers unfamiliar with blogs are sometimes puzzled by the concept, thinking that they are mere online "diaries," where egoists and sentimentalists record their thoughts and feelings. But the phenomenon of blogging is much more than that; it’s the modern equivalent of the Gutenberg revolution, a way of putting not just published material in the hands of the public—but publishing itself.

Sounds wonderful, but I'm going to agree and disagree with them a bit.

I think most of us would agree that the confusion of investors over blogging is in part due to the novelty of blogs. We're still probably only 5-10 years into blogging (depending on how you define it) and there still isn't a popular (truly popular) sense of what blogging is all about. Admittedly, the blogosphere is already vast according to Pew surveys (Dan's census shows how it has permeated the legal academy). However, it's easy to lose sight of how many people aren't reading blogs. Many of my friends (who are generally over 30, I should add) don't read blogs much, and when they do, they don't see much cause for caring about them. Among those who don't read blogs, some seem slightly bothered that many people are paying attention to them. Writ large, I suppose that might explain the anti-blogging backlash (evidenced by slams and warnings such as the well-known Doonesbury strip or the Slate post on career-killing blogs).

The curious thing about all of this, I think, is how or why blogging is different in this respect from past Net-based communication technologies. Did those who were early users of email, listservs, USENET, and web pages face a similar backlash? Perhaps, but not to the same degree, I think. There seems to be an interesting anxiety that we have about blogging, and my impression is that it is related to the perception that blogging is less of a functional tool and more of a substantive and productive practice.

For instance, consider that email and the webpage are both novel, Net-based technologies that allow for new forms of social communication. They certainly have transformed social and commercial practices in significant ways. But widespread adoption of these technologies didn't form the basis for derivative words such as "emailer" and "webpager," nor was there much of a public backlash (in my opinion) against early adopters of email and web publishing. Perhaps this is because using email or creating a web page can be seen as a one-off activity, whereas being a blogger requires something more -- a regular dedication to the use of a communicative technology within a particular social sphere?

But that's generally true of listserv and USENET participation as well, isn't it? So why didn't these forms not create the same buzz/backlash as blogging? I think the answer isn't only about sheer numbers. I think the explanation is that blogging has now been popularly associated with the authorial creation of a particular form of written product rather than what was seen, in other cases, as "mere" online conversation.

I've got two theories about why this is so. The first is about the technical form. The Web-based technology of blog posts occupies the same space -- the Web browser frame -- as the published web page, where we can find the traditional media dot-coms now residing. Hence, the perception (perhaps untrue) that blogs compete with the media in ways that listservs and USENET do not. The theory here is that because listservs and USENET are based on dissimilar technologies, they should be treated as dissimilar from Web-based media. Second, the expressly authorial nature of most blogs (increasingly a collaborative authorial space, but still an authorial space) differentiates them from the more interpersonal and conversational form of the listserv or USENET, where ownership and control of the information space doesn't usually correspond with being the dominant voice in that space.

Hence, for technological and formal reasons, blog posting feels closer to publishing than speaking, and the blogger looks more like an author engaged in publishing than a person engaged in online conversation. Congruently with the formal shape, blog posts are generally understood (by both author and reader) as at least a quasi-polished product (intended for a broad audience) more than online conversation -- like posts to listservs.

But this can clearly be taken too far, because part of the value that blogs provide (which Dan mentioned) is a certain form of casualness, carelessness (in both good and bad ways), and spontaneity not seen in traditional publishing. Reader participation is also more vital to the enterprise. Both these factors push the ontology of blogs toward conversational speech rather than text as product. Hence, perhaps, the need for bloggers (like Dan did previously) to emphasize to those who would conflate blogs with books that what we're really exploring is community and conversation (in a way that also seems like publishing).

At its core, though, I think we should realize that we're creating this ontology of blogs on the fly. The blog is, like email or listservs, a new technology around which new social practices and customs are forming. The most interesting thing about blogging at this moment (for me) is watching this messy evolution being worked out.

Posted by Greg_Lastowka at 11:03 AM | Comments (3) | TrackBack

Memory on the Sewanee Campus

It doesn't take a lot of skill to predict that this New York Times article about the controversy over what we used to call "The University of South" and what's now called "Sewanee: The University of the South" is going to generate, well, a lot of controversy.

First, some background. A few years ago, apparently motivated by a marketing study, the University of the South began emphasizing the "Sewanee" part of its name. Alumni have been concerned (to put it mildly) that it's not just about the name, however. They think there is a lot more at stake on the campus--like how the University deals with its distinguished and complex history. At the center of that history is the University's founder, Leonidas Polk. Bishop Polk was, also, a general in the Confederate States Army.

And so in discussions about Polk, we can see the cultural war over the memory of the Civil War in miniature. Polk was responsible for building the University, with much help and sacrifice by the Episcopal church; generations of its alumni have enriched the nation. Polk is, however, seen by some people as a man who fought to maintain the institution of slavery. How can the University reconcile those competing interpretations?

This involves incredibly complex issues of how we remember our ancestors and how we make sense of our past. Even a cursory exploration of the issues involves questions of respect for tradition, honoring the contributions of ancestors, recognizing their faults, and trying to reconcile the competing claims of people to a space on the Sewanee: The University of the South's campus. The University has already done some other things, like remove Southern state flags from the Chapel; some alumni fear that the stained glass windows in the Chapel, which include the seal of the Confederacy, may be next.

I have not yet had the opportunity to visit Sewanee: The University of the South, though I hope to someday soon, in part because my friend Margaret Howard tells me that it is one of the most beautiful campuses in the country. And, since Margaret teaches at Washington and Lee, she knows something about beautiful spaces.

I wish the students, alumni, faculty, and administration all the best of luck as they try to reach a reconciliation. This is going to be hard.

And for those of you interested in these kinds of issues, the spring's going to be busy--it will bring the report by Brown University's Steering Committee on Slavery and Justice, more debate on naming Sewanee and related issues of the memory of the Civil War on that campus, and further discussion of UNC's acknowledgement of its connections to slavery.

[The picture is of the flags of Southern states in the University of the South's chapel, which were removed a few years ago. The image appears here. The chapel without the flags appears here.]

Posted by Alfred_Brophy at 12:12 AM | Comments (4) | TrackBack

Pajamas Media

A CSM article discusses the Pajamas Media, an entity that aims to gather together the best of the blogs under one umbrella:

If a single thought-provoking weblog can find a large audience, might 70 or more linked together start a revolution?

That's what Pajamas Media hopes to find out. Backed by $3.5 million in venture capital, the nascent media company has gathered some of the most highly regarded bloggers on the Internet at one site (osm.org), hoping, as co-founder Roger Simon puts it, "to be the place for breaking Internet opinion."

According to Pajamas Media, the goal is:

PJM’s mission is to expand the influence of weblogs by finding and promoting the best of them, providing bloggers with a forum to meet and share resources, and the chance to join a for-profit network that will give them additional leverage to pursue knowledge wherever they may find it. From academics, professionals and decorated experts, to ordinary citizens sitting around the house opining in their pajamas, our community of bloggers are among the most widely read and influential citizen journalists out there, and our roster will be expanding daily. We also plan to provide a bridge between old media and new, bringing bloggers and mainstream journalists—more and more of whom have started to blog—together in a debate-friendly forum.

Pajamas Media has thus far landed with a thud. Its website has been criticized as being too boring and corporate. People are claiming it is politically unbalanced with too many conservative bloggers.

In response, Pajamas Media founder Roger L. Simon explains in the CSM article:

Simon promises a livelier front page that will pose a controversial question such as "Should the UN run the Internet?" and then let its bloggers have at it from all sides. The site employs editors in Los Angeles, Sydney, Australia, and Barcelona, Spain, so that it can be updated 24 hours a day. And it's streaming in feeds from conventional news sources while developing its own "fact checking" system to ensure the quality of its information.

Some of my thoughts and reactions:

1. Where's Concurring Opinions? We're not included. This is clearly a big strike against Pajamas Media!

2. Pajamas Media seems like a corporate wrapping around the blogosphere. It has too much of a corporate structure and neglects one of the key elements of the blogosphere -- the unexpected way various blogs gain attention from the ground up. Blogging is a bottom-up grass-roots kind of practice, not a top-down enterprise.

3. What's the value added by the Pajamas Media website? It claims to gather the best information in the blogosphere, but how? Blogs themselves are a filter through which we interact with the Internet. We look to bloggers to make us aware of the best and most interesting information and stories on the Net. Pajamas Media aims to be an intermediary between us and the blogs:

"There's a role for a new kind of intermediary, people who are in essence editors who help you choose by hand [the] voices that you're interested in hearing," he says. Search sites such as Technorati.com try to sort through the blogosphere for readers, but with millions of blogs out there, they have a huge job.

But the value of the intermediary is that we trust the intermediary and enjoy the intermediary's voice and opinion. That's one reason why people read blogs. Hiring a bunch of editors to do the sifting isn't quite the same. Blogging is about personalities, distinctive voices, and possessing some kind of expertise or special body of knowledge.

4. In a discussion over what Pajamas Media should be, Glenn Reynolds writes:

My thoughts on the site: (1) It's too sterile and corporate-looking; (2) The logo -- which I guess will be obsolete -- is similarly sterile and corporate-looking -- Pamela of Atlas Shrugged said it looked like the logo for a women's health clinic; (3) I like the newsfeeds, but I agree with Jeralyn Merritt that they're not optimized for the kind of things that bloggers want.

The page, overall, has too much mainstream news content. And it's too short -- keep scrolling with a blog, and you see new stuff. Keep scrolling with this, and it stops!

I do give Pajamas Media credit for having an open discussion about itself on its website. This is one of the things that Pajamas Media has done that's in the true spirit of the blogosphere.

5. A big problem with Pajamas Media is that it hasn't figured out how to take advantage of the great inclusivity of the blogosphere. The blogosphere certainly has its big blogs -- the Instapundits, etc. -- but part of what makes the blogosphere great is that there's a conversation between many blogs, big and small. It's about the Instapundits linking to some obscure blog out there. In other words, the blogosphere differs from the mainstream media in that it is more inclusive about who enters into particular conversations. The mainstream media is a fixed group of media entities who deliver news from on high; the blogosphere has a breadth and dynamism that Pajamas Media is excluding.

6. Pajamas Media needs to tap into the wisdom of the blogosphere in order to reform itself. In other words, instead of a top-down model of editors picking things, perhaps it should work more in wiki fashion, with folks appending to the site various snippets and links from blogs across the blogosphere. Editors can help keep the wiki running smoothly, but a bottom-up approach is more in the spirit of the blogosphere.

7. Where are the comments? Where's the vision for the community? Pajamas Media has positioned itself as an outsider that aims to fish around the blogosphere and then try to transform its "catch" into something akin to the mainstream media. This seems very antithetical to what blogging is all about.

8. Perhaps Pajamas Media should pose the question to the blogosphere. Why not ask: "What do you want?" Or perhaps pose the question this way: "We have $3.5 million in venture capital to create a great new tool to aid the blogosphere. What should we do?" Why not find out what the blogosphere really wants before trying to graft on a rather alien framework from outside?

In short, the blogosphere has succeeded by working from the bottom up. It is experimental, inclusive, spontaneous, collaborative, creative. Perhaps Pajamas Media should give up a bit of control and let those in pajamas build Pajamas Media, rather than those in suits. But doing something this risky would demand truly having faith in the power of the blogosphere.

Hat tip: How Appealing

Posted by Daniel Solove at 12:01 AM | Comments (1) | TrackBack

Law & Order

I’m a Law & Order fan. I love all of them: Original, Criminal Intent, Special Victims, and Trial by Jury. I also like the re-runs—even when I’ve seen an episode before there are always enough twists and turns and details to get my attention.

I’ve often gone to watch scenes being filmed in lower Manhattan. A neighbor in my building is a script checker for the show and so on occasion I’ve also been able to sneak a peek at draft scripts left in the recycling bin.

Though in real life no criminal case is resolved in one hour, Law & Order is pretty good on the substance of the law. The precedents mentioned are typically real cases. The rulings by the judges (at lightening speed) are often correct. I tell my students they can learn a lot by watching.

One curiosity is that most of the judges on Law & Order are black women. This is not realistic. Even in New York City black female judges are few and far between.

Why, then, are so many black women the judges on Law & Order? Is it because they can more credibly deliver sassy rulings that help the plot along? Are the show’s creators hoping to inspire black girls to go to law school and then take the bench? Are there a lot of under-employed black women actors?

I suspect that the reason there are so many black women judges on Law & Order is that so many of the criminals on the show are well-off white people—the pharmacist who poisoned a customer; the high school teacher who molested a student; the stockbroker who raped a secretary; the CEO who needed his wife’s life insurance and so hired an assassin.

By having black women sit in judgment of these defendants, Law & Order turns upside down the existing racial imbalances in our criminal justice system. Wander into a criminal courtroom and the judge will typically be a middle-aged white guy—and the defendant black or Hispanic. Our prisons are filled with racial minorities.

The casting imbalance on Law & Order imparts a powerful lesson. It gives its white middle-class audience a glimpse of what, for other people, criminal justice is like.

Posted by Jason_Mazzone at 05:24 PM | Comments (7) | TrackBack

Markel in Slate

My friend and our former co-blogger Dan Markel has a new essay out in Slate on the death penalty that is well worth reading. Dan analogizes the recent news about wrongfully executed Ruben Cantu to the movie "The Life of David Gale." In the essay, Dan links to his relatively new Harvard CR-CL piece about retributivism and the death penalty, which is also worth a read (although it will take somewhat longer to digest than the Slate piece.)

Posted by hoffman at 02:27 PM | Comments (0) | TrackBack

History of the Book

Folks here at concurringopinions have been talking a lot about books recently--Nate Oman's had posts on the appeal of law books (particularly old ones) and law reviews and Dan Solove's posted about the open library. I find student-edited law reviews problematic in some ways, and the smell of old books doesn't do much for me. But there is magic, imho, in libraries. Libraries are great enlightenment vehicles of improvement. They're the places that knowledge is collected and disseminated. (And that's why I find the stories about segragated libraries particularly important in understanding our history.)

I remember the excitment I used to feel on walking in Van Pelt Library as an undergraduate. The entire world of knowledge, it seemed to me at the time, was open to anyone who had the inclination and time to visit it. In keeping with the Supreme Court's administrative law opinions of the early 1970s, like Overton Park (about the importance of getting information in front of regulators), I thought that the knowledge in those books held most, if not all, of the keys to a better society.

Sometimes, if I get to the University of Alabama's library early enough on a Saturday (so there aren't many other people around), and I'm working on an original project, and the light strikes the windows in the great reading room just right, that enthusiastic eighteen-year old I remember appears again, even if only for a short while.

When I'm thinking about old books, I'm partial to library catalogs. Because they give you a sense of the ideas that people had access to and the kinds of ideas they found appealing. The 1853 library catalog of the University of Georgia is available on the Georgia library's webstite. Through the magic of the internet, you can see exactly what the catalog looked like. And you can also see what books were in the Georgia library. Historians in recent years have been talking a lot about the "history of the book." They ask who was reading books, who was writing them, and how books were useful in transmitting ideas.

This is becoming a really popular area of teaching and research. And a lot of internet sites allow you to read important old books. One of my favorites is the University of North Carolina's Southern Texts site. Another favorite is the University of Virginia's e-books site. And, of course, if you're doing nineteenth-century US history, the Making of America site is now indispensable.

My colleague Paul Pruitt and I are editing the University of Alabama's catalog for 1848. I learned about the catalog from an extraordinary historian, Guy Hubbs, who wrote a brilliant book on Greensboro, Alabama during the Civil War. Paul has a great idea, to call the project "Burned Books," becase the library (and hence the books listed in the catalog) were burned in the closing days of the Civil War, when Union soldiers destroyed most of the University's campus.

What's especially cool for historians is that the history of the book focuses on ideas: how are ideas preserved and transmitted, which are two topcis where the mind is central. And while I love great social history as much as anyone and I think that subjects like dress and architecture are great topics for study, I also enjoy thinking about the relationship between ideas and action. So I'm enamoured with some recent books on Southern intellectual history, like Michael O'Brien's Conjectures of Order. O'Brien has a whole chapter on libraries, and there's more one can do with them, such as linking the books in libraries with individuals' writings (like judicial opinions, newspaper articles, and student papers).

(The picture is of the reading room at Harvard's Widener Library.)

Posted by Alfred_Brophy at 02:06 PM | Comments (0) | TrackBack

A common-law right to attend Eagles games

Also in Eagles news (all strange, all the time) is this story: "Man spreads mother's ashes on Eagles field." The man in question, Christopher Noteboom, claims he chose Eagles field because his mother was a lifelong fan of the team. Noteboom is being charged with trespass. The police chief seems unsympathetic to Noteboom's claims, points out that a number of fans were probably terrified when a strage man began spreading an unknown powder at the football game.

Did Noteboom also secure for himself a right to attend Eagles games? Guest blogger Al Brophy has written about the ancient common-law rights of family members to visit the graves of loved ones. Perhaps Noteboom can offer a settlement -- drop the charges, and I won't press my common-law rights of access to a grave. (And if he does try to press them, we may see a very interesting grave-rights case).

Meanwhile, I'll be busy this weekend, spreading ashes at the Met, the Philharmonic, Madison Square Garden, Yankee Stadium, the Four Seasons . . .

Posted by Kaimipono at 10:47 AM | Comments (3) | TrackBack

Senator Specter on Terrell Owens

My state's senior senator, Arlen Specter, who has lots on his plate, held a news conference this morning:

[He said that] it was "vindictive and inappropriate" for the league and the Eagles to forbid [their] all-pro wide receiver [Terrell Owens] from playing and prevent other teams from talking to him.

"It's a restraint of trade for them to do that, and the thought crosses my mind, it might be a violation of antitrust laws," Specter said, though some other legal experts disagreed.

"I am madder than hell at what he has done in ruining the Eagles' season," the Pennsylvania Republican said. "I think he's in flagrant breach of his contract and I believe the Eagles would be within their rights in not paying him another dime or perhaps even suing him for damages."

But Specter said, "I do not believe, personally, that it is appropriate to punish him (by forcing him to sit out the rest of the season). He's not committed a crime, he's committed a breach of contract. And what they're doing against him is vindictive."

There are several statements here that are interestingly wrong. One worth thinking about is the idea that the Eagles are punishing Owens by enforcing the contract's "conduct detrimental" clause. On one level this can't be right - the Eagles are paying their employee for not working, hardly an onerous result. But theory notwithstanding, reading the arbitrator's decision, it sort of feels like punishment. Doesn't it?

Posted by hoffman at 09:26 AM | Comments (2) | TrackBack

On Becoming a Supreme Court Clerk

This article about David Bragdon, who was just hired to clerk for Justice Thomas, is worth reading, especially for those who miss their A3G fix. Bragdon is significantly more forthcoming in print than I would have expected. Two choice quotes:

“I think conservative justices are more likely to hire conservative clerks,” he said. “I interviewed with Justice Thomas and his clerks, and his clerks really drilled me on my judicial philosophy, both to see how much I knew and to test my ability to argue various issues.”

“There could be some shifts in the way the Supreme Court decides certain issues [based on the new justices coming to the court],” he said. “I don’t think Roe vs. Wade will be overturned, there aren’t enough votes to change that decision, but other key issues could be affected.”

Too bad the interviewer didn't ask the obvious follow-up question: which "key issues" does this rising Supreme Court clerk think will be affected by the confirmation of Justice Roberts and the possible confirmation of Judge Alito?
(Hat Tip: Howard B.)

Posted by hoffman at 09:14 AM | Comments (4) | TrackBack

Google's Empire, Privacy, and Government Access to Personal Data

A New York Times editorial observes:

At a North Carolina strangulation-murder trial this month, prosecutors announced an unusual piece of evidence: Google searches allegedly done by the defendant that included the words "neck" and "snap." The data were taken from the defendant's computer, prosecutors say. But it might have come directly from Google, which - unbeknownst to many users - keeps records of every search on its site, in ways that can be traced back to individuals.

This is an interesting fact -- Google keeps records of every search in a way that can be traceable to individuals. The op-ed goes on to say:

Google has been aggressive about collecting information about its users' activities online. It stores their search data, possibly forever, and puts "cookies" on their computers that make it possible to track those searches in a personally identifiable way - cookies that do not expire until 2038. Its e-mail system, Gmail, scans the content of e-mail messages so relevant ads can be posted. Google's written privacy policy reserves the right to pool what it learns about users from their searches with what it learns from their e-mail messages, though Google says it won't do so. . . .

The government can gain access to Google's data storehouse simply by presenting a valid warrant or subpoena. . . .

This is an important point. No matter what Google's privacy policy says, the fact that it maintains information about people's search activity enables the government to gather that data, often with a mere subpoena, which provides virtually no protection to privacy -- and sometimes without even a subpoena. In my book, The Digital Person, and in an earlier paper, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083 (2002), I argued that today an increasing amount of detailed personal data is being maintained by various companies, merchants, and organizations. The Supreme Court has held that the Fourth Amendment does not protect against the government accessing records maintained by third parties. In United States v. Miller, 425 U.S. 435 (1976), for example, the Supreme Court held that people lack a reasonable expectation of privacy in their bank records because "[a]ll of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to banks and exposed to their employees in the ordinary course of business."

The New York Times op-ed goes on to criticize Google for not being a leader in protecting privacy:

It is hard to believe most Google users know they have a cookie that expires in 2038, or have thought much about the government's ability to read their search history and stored e-mail messages without them knowing it. . . .

Google should develop an overarching privacy theory that is as bold as its mission to make the world's information accessible - one that can become a model for the online world. Google is not necessarily worse than other Internet companies when it comes to privacy. But it should be doing better.

I agree with the op-ed, but I also think that businesses should use their power to push for greater legislative protections of personal information from government access. It is here were Google's interests and the privacy interests of its users coincide. Right now, the government is inadequately regulated when it comes to accessing personal data maintained by third parties. If the businesses maintaining the data lobbied Congress for greater protections, this would help to address one of the major privacy threats that their maintaining the information poses. It wouldn't solve all of the problems, but it would address a big one.

Related Posts:
1. Solove, When Google Is King
2. Solove, Searching the Internet: It’s the Hip Thing to Do

Thanks to Chris Hoofnagle and Steve Charnovitz for pointing me to this op-ed.

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

The End of Shame

With talk these days about the decline of privacy, the disappearance of shame deserves attention. People have become less self-conscious—more willing to let the world into their intimate spaces without any sense of embarrassment. Webcams, whose operators actually invite voyeuristic strangers to observe their every move, are just one example.

The past few years have also seen a marked rise in the number of people who believe it is acceptable to take care of personal hygiene and grooming in public. Every morning I ride the subway, professional women in my car are busy applying makeup. I don’t mean making last minute touch-ups—with makeup kits perched on their knees, they’re painting a blank canvas.

I frequently also see otherwise normal looking subway riders filing and trimming their fingernails. I’ve seen eyelashes curled, eyebrows plucked, and nose hairs removed with little tweezers. (Where do these people suppose all their personal droppings end up?)

It’s not just the subway. Recently, on a flight from New York City to Washington, D.C., a man across the aisle from me politely asked the flight attendant for a cup of water, used it to brush his teeth, and then, with no sense of embarrassment, spat out in the air sickness bag, which he handed to the flight attendant on her next round.

In Central Park, I regularly see parents assisting their children urinate on trees. Last month, I witnessed a woman pull her Mercedes to the curb so her child could go to the bathroom in the street before the family headed back to Westchester.

I’ve seen men on the freeway shaving in the rear view mirror. I’ve watched people floss their teeth at the theater and while walking down the street, and comb gunk from their hair at the movies.

Ride Amtrak on a weekday morning and, in addition to the inane cell phone conversations (“I’m on the train. We’re slowing down…”), I guarantee you’ll be subjected to the fumes of nail polish remover. There is also a good chance you’ll encounter people using Q-Tips to clean their ears.

Oral-B recently released a product called Brush-Ups. “Now you don't have to be at home to get that just-brushed feeling,” the company shamelessly says. “You can have clean teeth and fresh breath anytime, anywhere. No water required.”

No sense of decency either.

Are we really so busy that tasks once performed alone in bedrooms and in powder rooms must now be carried out together in trains, planes and automobiles? Is personal grooming really just like reading a magazine or doing a crossword to pass the time on the way into the office?

Surely, I’m not the only person ashamed by this behavior.

Posted by Jason_Mazzone at 05:29 PM | Comments (10) | TrackBack

Clearly I'm teaching the wrong classes. . .

The CNN headline pretty much says it all: "Girl with peanut allergy dies after kiss." It is proof of my through law-geekiness that my first thought was "that would make a great question for a torts exam!"

Torts finals always seem to involve strange hypotheticals. I still remember my own torts final as a law student -- it involved a man who opened his umbrella in the rain, and was struck by lightning.

It's pretty hard to work a peanut-kiss-death into my Wills final or my Securities Regulation final. (I suppose I could try to work it into some strange hypothetical to test the statutory bar on inheriting from a decedent who is murdered by the devisee, but that would be a stretch. And besides, those exams are already written.).

But if I ever teach torts, I'll be thinking back to the peanut case -- and wondering if I can turn it into a good hypothetical about a "kiss of death."

Posted by Kaimipono at 02:17 PM | Comments (7) | TrackBack

Voices from the Past

This very fine New York Times article on the New York Historical Society's exhibit on slavery in New York begins by talking about visitors recording their reactions to the exhibit. We should also think about listening to the voices of people who had lived as slaves.

Some of the great treasures of American history are the slave narratives collected by the WPA. And through the magic of the internet, you can listen to the Library of Congress's audio collections of the voices of people who were born into slavery.

I've enjoyed listening to them, because I love hearing the songs (like Keep your Lamp a' Trimmed and Kingdom Coming), the accents, and the recollections of the folks.

Of course, the WPA and other New Deal agencies recorded a lot of other folks, too. I highly recommend the audio downloads that are available on the LOC's website. And the LOC has some other great audio collections, like these fiddle tunes recorded in the 1960s.

The picture is from the Library of Congress' collection of black and white photographs from Great Depression to World War II, LC-USF34- 044206-D.

Posted by Alfred_Brophy at 11:34 AM | Comments (0) | TrackBack

Why does the Supreme Court accomplish so little?

Last term, the Supreme Court issued opinions in just 74 cases. That’s pretty pathetic. It means there are many areas of the law that are unsettled or unreviewed; many important issues in which the Supreme Court could helpfully weigh in but it doesn’t; many issues that, once decided, will not reach the Court again for decades, if ever.

A low number of cases does not, however, mean light reading. Many of these 74 cases produced multiple opinions by sub-groups of justices. It’s not hard to see why this is true. Divide 74 up among nine justices and 30-plus law clerks and the temptation to write separately is irresistible.

Most of the 74 opinions are also lengthy and convoluted, larded with unnecessary detail and footnotes, and containing inappropriate swipes at the work of the other justices. As a result, most opinions are inaccessible to non-specialists. It is a rare delight these days to get an opinion that crisply and simply sets out the decision of a unanimous Court. Were it not for people like Linda Greenhouse of The New York Times, skillfully decoding the justices’ language, the general public would have no idea what the Court was doing.

This need not be so. Brown v. Board of Education (1954), one of the Court’s most important decisions ever, was unanimous and ran just seven pages. Anybody could read it and see what the Court had said. To be sure, the reader might disagree with Brown or even wonder how the Court reached the result that it did. But it’s unlikely that multiple concurring opinions spreading over a hundred pages or more would have changed any reader’s mind.

My advice for Chief Justice John G. Roberts: double the number of cases the Court decides (it decided 123 the term Roberts clerked for Rehnquist), halve the length of opinions, make unanimity the goal, and discourage separate concurrences.

How might that be done? Jurors are asked to review piles of information and to reach unanimous decisions—and we keep them locked up until they do. Perhaps the justices should be sequestered.

Alternatively, the Court’s practice throughout much of the nineteenth century offers a model. Nineteenth-century justices (some of whom lived together) resolved cases over lengthy dinners. Justice John McLean, who served on the Court from 1830-1861, described the practice this way:

Before any opinion is formed by the Court, the case after being argued at the Bar is thoroughly discussed in consultation. Night after night, this is done, in a case of difficulty, until the mind of every judge is satisfied, and then each judge gives his view of the whole case, embracing every point in it. In this way the opinion of the judges is expressed, and then the Chief Justice requests a particular judge to write, not his opinion, but the opinion of the Court. And after the opinion is written, it is read to all the judges, and if it does not embrace the views of the judges, it is modified and corrected.

The advantages of this approach seem clear: put in the time at the beginning, over food and drink, to reach a decision and then write it up—rather than write first and hope somebody else will get on board.

There are some very nice homes with comfortable dining rooms in Georgetown. I can almost hear it now: “Nino, red or white?”

Posted by Jason_Mazzone at 07:45 AM | Comments (6) | TrackBack

Introducing Guest Blogger Greg Lastowka

We're extremely fortunate to have Greg Lastowka visit here with us for the next few weeks.

Greg is an Assistant Professor of Law at Rutgers School of Law-Camden. He earned his B.A. from Yale College and his J.D. from the University of Virginia Law School. Before entering the legal academy, he clerked for the Honorable Walter K. Stapleton of the Federal Court of Appeals for the Third Circuit and practiced intellectual property and technology litigation at Dechert LLP. His recent articles include Amateur-to-Amateur, 46 William & Mary Law Review 951 (2005); The Trademark Function of Authorship, 85 Boston University Law Review 1117 (2005). To read more of his articles, click here.

We're delighted about Greg's visit. Please give him a warm welcome.

Posted by Daniel Solove at 12:02 AM | Comments (0) | TrackBack

Introducing Guest Blogger Jason Mazzone

It is my pleasure to introduce Jason Mazzone, who will be visiting with us for the next few weeks.

Jason is an Assistant Professor at Brooklyn Law School where he teaches Constitutional Law and American Legal History. His recent works include The Security Constitution, 53 UCLA Law Review 29 (2005); Unamendments, 90 Iowa Law Review 1747 (2005); and Copyfraud, forthcoming in the New York University Law Review. He is a graduate of Harvard College and Harvard Law School and he received his doctorate from Yale Law School in 2003. He is revising his dissertation, "Organizing the Republic: Civic Associations and American Constitutionalism, 1780-1830," for publication as a book. He was born and grew up in Tasmania.

You can read more of Jason's articles by clicking here.

We're extremely excited about Jason's visit. Welcome aboard Jason!

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

What Law Review Articles Had a Major Influence on the Law?

Al Brophy's post about Roy Lucas's law review article helping to form the intellectual foundations for Roe v. Wade has got me thinking about other law review articles that have had a lasting influence on the law.

Over on his new blog, Follow the Flag, Alan Tauber mentions Abbot Lawrence Lowell, The Status of Our New Possessions – A Third View, 13 Harv. L. Rev. 21 (1899), which formed the basis for the Territorial Incorporation Doctrine.

I'm most familiar with the articles in my field, privacy law, which has two law review articles having a major impact on the law.

First is Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890), a law review article that spawned the four privacy torts, most of which have been adopted in most states.

William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960), also had an impact in the development of privacy law, as his formulations of the privacy torts were adopted by the Restatement of Torts, and they are the most common formulations of the torts today. [Of course, it helped that Prosser was the Reporter for the Second Restatement of Torts.]

Can anybody identify others? I'm looking for law review articles that have had a major influence on the law -- statutory law or court decisions. I'm not looking for just a local impact -- so if an article just influenced a particular state court decision or law, this isn't broad enough. I want to identify articles that have changed the law in numerous states (as with the Warren and Brandeis article) or sparked a federal law. I'm also not looking for articles that are merely cited a lot by court decisions; I'm looking for ones that influenced a particular doctrine. Of course, articles can be influential in other ways, such as influencing other scholars, etc., but I want to keep the focus of this question on articles having a major legal impact.

Posted by Daniel Solove at 05:37 PM | Comments (9) | TrackBack

The intellectual origins of Roe . . . in a law review

Here's a nice piece of trivia: what law review article laid the blueprint for Roe v. Wade?

Thanks to Orin Kerr's link to Judge Raymond Randolph's thought-provoking speech to the Federalist Society on Judge Friendly's unpublished 1970 draft opinion on abortion rights, I learned something about my school's history: that Roy Lucas, then an assistant professor at the University of Alabama, published an article in 1968 in the North Carolina Law Review, which (according to Judge Randolph) "laid out a blueprint" for applying Griswold to state anti-abortion laws. Of course, proving influence in the evolution of constitutional thought is a remarkably difficult enterprise. But some knowledgeable people nevertheless believe the article to have been quite important. N.E.H. Hull, Williamjames Hoffer, & Peter Hoffer include an excerpt from the article in their important book, The Abortion Rights Controversy. They say of Lucas' article that it was a "vital source of ideas for the frontal attack on criminal abortion statutes."

Hmm, I thought upon reading this, how surprising. I try to pay some attention to my school's history. I've heard some pretty interesting stories about Alabama law faculty. For example, Professor Jay Murphy's advocacy in the pages of the Alabama Law Review helped defeat some of the legislature's proposals to resist desegregation in the immediate aftermath of Brown.

Still, until this morning, I had never heard of Roy Lucas. So that led me to a westlaw search, where to my surprise I found that Lucas' article appears to have been cited barely more than a handful of times. Further evidence, as I've observed in the context of my school's antebellum history, that historians don't pay sufficient attention to the intellectual history of the South (or of Alabama in particular).

Judge Friendly's opinion, of course, warrants some comment.

This could lead to another pretty interesting question: what are the most significant law review articles? I'm guessing that Lucas' would be a contender for inclusion on that list.

Posted by Alfred_Brophy at 08:50 PM | Comments (3) | TrackBack

Legal Realism and the Lefty Blogosphere

The dispute between Prof. Althouse and various lefty blogs continues. Most recently, "Armando" of Dailykos posted this screed. Armando concludes:

In short, does not Althouse admit that she too, is a legal realist? And given that admission, is it not fair to expect that Althouse would approve of a query in detail regarding Alito's views on legal issues? Is it not fair to expect that Althouse would not condemn critiques of the results of Alito's opinions without trying to engage in hypertechnical "gotcha-isms"?

I am interested in the idea that legal realism entails a commitment to "query in detail . . . Alito's views on legal issues." There are lots of different types of folks who we might think of as legal realists, and I doubt that they could find a consensus about a definition of the school of thought, let alone a position on the scope of the Senate's advise and consent role. But it is an provocative idea, wrapped in some hyperbolic clothing.

Armando continues:

[E]ven a legal realist like myself understands that the judicial rules place limits on how much wiggle room judges have to achieve their desired results. Concepts like precedent, consistency, rules of construction, political question doctrine, etc., place limits on the ability of judges to render any result they deem the correct one. And in a case like Bush v. Gore, adhering to those rules is more important by a factor of 10 than in any other case. It is precisely because of what was being decided that the SCOTUS' actions in Bush v. Gore were egregious in a manner almost unequalled in the history of the Court. They should never have taken the case period . . .
Finally, what was the essential difference between the actions of the Florida Supreme Court as compared to the SCOTUS'? Very simple. The Florida Supreme Court HAD TO DECIDE the case. It had no choice. It could have ruled in favor of Bush or in favor of Gore. But it HAD to rule.
The Supreme Court of the United States had no such compulsion. Cert denied is all they had to say. They chose to do otherwise.

I think Armando is flat wrong here. Gore v. Harris, the ultimate Florida Supreme Court merits decision in the litigation, appears to be an exercise of discretionary jurisdiction under Section 3(b)(5) of the Florida constitution. But maybe that is the type of "hypertechnical gotcha-ism" that I ought to be avoiding. Whoops.

Posted by hoffman at 01:08 AM | Comments (4) | TrackBack

Dunbar and Heller on the Future of Securities Class Actions

For those who want background on why Judge Alito's strong recent re-affirmation the efficient capital markets hypothesis matters, there is a new article on SSRN for you.

Frederick Dunbar and Dana Heller (both of National Economic Research Associates) have posted "Fraud on the Market Meets Behavioral Finance," forthcoming in the Delaware Journal of Corporate Law. From the abstract:

The efficient market hypothesis, in its current form, dates academically from 1970 and it was first accepted by a Federal Court in a shareholder class action in 1975, providing plaintiffs with a rebuttable presumption of reliance based on the fraud-on-the-market theory. By 1988, the fraud-on-the-market theory was the law in most Circuits and was affirmed by the Supreme Court in Basic v. Levinson. Since then, the efficient market hypothesis has not been rebutted in any case involving actively traded securities, and its impact on securities litigation and regulation extends well beyond class certification to materiality, causation and damages. Somewhat ironically, over the same time period, financial economics was, first, finding anomalies in securities markets that were not consistent with the Supreme Court's version of the efficient market hypothesis and, second, using concepts borrowed from behavioral economics to develop theories of securities price formation to explain, among other things, the stock price bubble of the late 1990s. In fact, even proponents of the efficient market hypothesis have claimed that securities were mispriced during this episode. If courts were to adopt behavioral finance explanations of securities market behavior, then prior precedent would not be appropriate in a number of areas of securities fraud including reliance, materiality, causation and damages. We explore the implications of how analysis of these issues would be changed by application of behavioral finance.

Posted by hoffman at 12:43 AM | Comments (0) | TrackBack

Goodbye and Thanks!

Thanks so much to Dan, Kaimi, Nate and Dave for inviting me to participate on this wonderful blog. I couldn't have asked for a better introduction to the world of blogging, or a friendlier or more supportive group of (virtual) colleagues. I had hoped to end with a flurry of posts, but my plans were side-tracked by both the aftermath of the appointments conference and a nasty cold (hard to say which was worse). But never fear - I'll continue to be a regular reader and make my presence felt in the comments. Bye, and thanks again!

Posted by Joseph_Liu at 02:58 PM | Comments (2) | TrackBack

Of Names, Auctions, and Contests

Lemony Snicket auctioned the naming right to a character in a forthomcing novel. (Sold for a lot--something like $6000.) So why shouldn't Professor Eric Muller solicit help in naming his new book on the administration of the internment of Japanese-Americans during World War II? Looks like a great book, btw, judging by his introductory chapter. And, of course, the contest has the virtue of getting lots of folks reading the introduction and driving traffic to his blog. This may catch on--at least I hope it does, because I enjoy hearing about new scholarship and it's sort of a fun contest.

Alas, I have no good idea about the name for the book--I'd probably go for something dull like Administering Injustice. But it'll be an important addition to the literature on the history of administrative state in the twentieth century, which has been drawing attention from really strong scholars, like Reuel Schiller.

One more thing: I was a coerced watcher of Snicket's Series of Unfortunate Events last January on a flight out to Seatle. And, after the first couple of minutes when I couldn't quite figure out what the was going on, I enjoyed the movie. Plus, I dig the role of a trust in shaping the plot.

Posted by Alfred_Brophy at 11:35 AM | Comments (1) | TrackBack

Stove Top Stuffing Obit

Ruth M. Siems, lead inventor of stove top stuffing, died last week. Her obit in the Times was, sadly, patronizing and somewhat nasty. Margalit Fox writes that Siems' invention will make its appearance in homes tomorrow, "welcome or otherwise", that it is "[c]omforting or campy," and it is an "enduring emblem of postwar convenience culture."

Look. I'm not a huge fan of this stuff, but - like other parts of the "postwar convenience culture" - it has made it possible for Americans to spend less time at the stove, and at pursuits that they apparently find more rewarding. Like working. Or spending time with children. And, it seems that snarking at the product misses an interesting life story. The obit gives us a few facts:

Ruth Miriam Siems was born in Evansville, Ind., on Feb. 20, 1931. She earned an undergraduate degree in home economics from Purdue University in 1953, and after graduation took a job at the General Foods plant in Evansville, where she worked on flours and cake mixes. She moved to the company's technical center in Tarrytown, N.Y., not long afterward. Ms. Siems retired in 1985.

Besides Ms. Porter, of Copley, Ohio, Ms. Siems is survived by another sister, Rosemary Snyder, of Chicago; and a brother, David, of Milford, Mich.

Posted by hoffman at 10:57 AM | Comments (1) | TrackBack

There's Gold In Them Pixels

A picture is worth a thousand words. But pixels might be worth a million bucks. From the Wall St. Journal (free content):

It was just a few months ago that 21-year-old Alex Tew of Great Britain was stumped about how to pay for college. He'd filled a notebook with ideas before jotting down this simple, if rather audacious, query to himself: How Can I Become a Millionaire? . . .

Instead of selling banner ads, text links or splashy videolike ads that fill a screen, Mr. Tew opted to hawk the simplest graphical denominator of a computer screen: the pixel. A pixel is a tiny dot of light and color, and each screen has tens of thousands of them.

Mr. Tew created a home page, www.milliondollarhomepage.com, where he divided the screen into 10,000 small squares of 100 pixels each. His plan: to sell the pixels for $1 a piece, with a minimum order of 100 pixels. In each space, buyers could put a graphical ad of their choosing that links to their own site when clicked on. The end result is a cluttered collage of ads in various shapes and colors all amassed on a single digital billboard. (Mr. Tew doesn't charge his advertisers anything when a visitor clicks on the ads.)

Here's what his website, www.milliondollarhomepage.com, looks like:

Tew aimed to keep up his site until he reached a million bucks. You'd think it wouldn't work. But it has been working:

He first roped his friends and family into buying pixels and placing ads to make the page seem legitimate. He then began touting his site, and himself, to bloggers, who wrote about his crazy idea and linked to the site, which directed traffic his way. The media in Britain picked up on his efforts, fueling more visitors.

Within two weeks of the site's Aug. 26 launch Mr. Tew says he sold $40,000 in ads. More important, the traffic numbers started gaining attention among the U.S. Internet community.

Since its launch, the site has received a total of about 1.5 million unique visitors. In mid-September, it landed on the "Movers & Shakers" feature of Alexa.com, which ranks the world's Web sites by the number of people who visit them. Marketing executives often troll Alexa.com, which is owned by Amazon.com, to check out what's hot and what's not, and at one point Mr. Tew's site reached Alexa's No. 2 spot.

Currently, the site gets 600,000 to 700,000 unique visitors a month. As of yesterday evening, Mr. Tew said he was $623,800 toward his goal, more than enough to pay for college and earmark some cash for his next entrepreneurial venture, he says.

We here at Concurring Opinions are sitting atop some pixels too. . . . Hmmm. . .

Related Posts
1. Solove, Going Commercial
2. Solove, What Your Blog is Worth
3. Solove, The Most Expensive Blog Ad Ever?

Posted by Daniel Solove at 12:20 AM | Comments (0) | TrackBack

Private Accrediting: If you can't beat 'em, join 'em

US News’ rankings are exerting powerful influences over law school practices, in areas like admissions (and presumably hiring and promotion of faculty, to enhance reputation scores). They're beginning to look like an accrediting agency that operates parallel to the ABA. US News arguably sets benchmarks for such areas as admissions, faculty-student ratios, and library size.

(Jeffery Stake's article "The Interplay Between Law School Rankings, Reputations, and Resource Allocation" and posts like this one by Brian Leiter explore how US News is affecting (or might affect) class size and other admissions decisions. My (admittedly impressionistic) sense is that a great many law schools are bending their behavior to US News factors.)

In the spirit of “If you can’t beat them, join them,” maybe what we should be doing is lobbying US News to change the factors that count in their rankings. Perhaps, for example, we should encourage US News to take diversity of student body into account. If US News gave (even small credit) for diversity, perhaps it would cause (major) shifts in law schools’ admissions decisions. I wonder if US News is already poised to do this? In 2005 they began publishing a diversity index, but it doesn't yet count towards a school's overall rank.

I’ll leave aside self-serving changes to the US News factors, like taking faculty salary into account, which the ABA is no longer able to do. And, related to the ABA’s problems with collection of salary data, you may remember that antitrust is an area where law schools have behaved, well, rather surprisingly, as Thomas Lambert and Royce de Rohan Barondes point out. I think you'll enjoy their article.

(The illustration is Margo Humphrey's Pulling Your Own Strings, from the Paul Jones Collection at the University of Delaware. I think it fits with the theme of this post, about law schools trying to take control of our destiny by working with US News, even as we're subject to "regulation" by them.)

Posted by Alfred_Brophy at 07:12 PM | Comments (2) | TrackBack

VisitorVille 3D: Site Meter Heroin

I hope, pray, plead to the heavens that I will not use VisitorVille 3D. VisitorVille 3D is a visitor tracking software, akin to Site Meter, but that displays web traffic as a three dimensional city:

What makes VisitorVille unique is immediately clear: VisitorVille does not represent website visitors simply as numbers or graphs, but as real people in a real environment. You can watch your site traffic as if you were people-watching in a big city.

As a blogger, I understand the obsession over visitor