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Mexico To US: We're Sorry About Calling You Barbaric

That seems to be the message of the Mexican Supreme Court's recent decision to allow extradition to the U.S. of life-imprisonment eligible accused criminals. Duncan Hollis, my colleague and friend who is guest blogging at Opinio Juris, has the whole story. He suggests that Mexico is being compelled to forgive us by recent Congressional conditional appropriation legislation.

Posted by hoffman at 11:23 PM | Comments (0) | TrackBack

Seeking Justice Against Bad Business -- Blogosphere Style

A few weeks ago, Sony BMG suffered a public relations nightmare sparked by a blogger for its use of hidden DRM software in people's computers. The latest company to face the wrath of the blogosphere is PriceRitePhoto.com, an online merchant of cameras. From Online Media Daily:

The blogger . . . wrote on his blog, Digital Connection, that a PriceRitePhoto.com sales rep tried to sell him accessories he didn't want, and then when he refused, told him the camera he had ordered was out of stock--an experience that many other customers report having in customer reviews on Yahoo! Shopping and PriceGrabber.com.

The call became heated, the blogger said, when he told the rep he was going to write an article about the experience for his blog. "I told him I was planning to write an article about it. That's all I said. Immediately the guy went ballistic on me," he said in a telephone interview.

He posted an account of his experience on Digital Connection, and also mentioned that he had found the retailer through Yahoo! Shopping. As of Wednesday, PriceRitePhoto.com still appeared on Yahoo! Shopping with a rating of four stars out of a possible five, but by Thursday, the site had been delisted.

He also posted a link to the story on a community-driven news site, Digg.com, and the story ballooned from there. The blog, Digital Connection, which regularly receives roughly 5,000 unique visitors per day, garnered over 125,000 visits on Wednesday and Thursday.

Howard Baker, a manager with PriceRitePhoto.com, said the business had suffered "millions of dollars" worth of damages in the last two days, apparently at the hands of consumer vigilantes who had read the Digital Connection post.

"In the last couple of days there was one disgruntled customer that posted a blog that caused thousands of people to come out of the woodwork and jam our Web site," said Baker--citing viruses, denial-of-service attacks, and thousands of prank calls. . . .

There are also issues about whether PriceRitePhoto.com's online reviews had been gamed prior to this incident:

Despite hundreds of negative, one-star reviews posted on PriceGrabber.com and Yahoo! Shopping, PriceRitePhoto.com managed to maintain a high rating--four stars out of five on both sites--in part due to hundreds of equally positive, five-star reviews. The vast majority of the reviews posted on the shopping aggregator sites were either one star or five stars; few reviews told of a middling experience with the company. Yahoo! declined to speculate how the merchant maintained a four-star rating with a legion of one-star comments; a company spokesperson confirmed that Yahoo! Shopping removed PriceRitePhoto.com from its listings after an investigation.

PriceRitePhoto.com isn't alone. Companies that mistreat customers are finding themselves attacked in the blogosphere:

Pete Blackshaw, chief marketing officer of buzz-monitoring firm Intelliseek, likened PriceRitePhoto.com's blogosphere drubbing to the "Dell Hell" saga documented on Buzz Machine, the Web log of media figure Jeff Jarvis. Jarvis wrote about a bad experience he had with computer giant Dell's customer service, creating an avalanche of negative comments about Dell and bringing to light hundreds of bad consumer experiences with Dell's support staff.

"Moral of the story: this is a new age of accountability," Blackshaw said. "We're in a new consumer surveillance society where ostensibly benign and sneaky misdeeds are magnified for broader audiences."

Blackshaw added that companies must be careful with their reputations on the Web, where a single consumer with a blog--even a relatively low-trafficked one--can catalyze a huge backlash on the blogosphere. "Credibility is fragile in the age of consumer-generated media, and none of us are immune to this," he said. "The merchant makes a claim. The blogger puts it to the torture test, outs the contradiction, and the viral network does the rest of the dirty work."

Using the blogosphere to attack bad business practices can certainly be a good thing. It gives people a forum to vent and makes companies more accountable. Recently, Eugene Volokh (law, UCLA) wrote about his abominable customer service with Dell, a company that in its advertisements touts its wondeful customer service. The post attracted numerous comments and links. Here, Dell mistreated the wrong customer, one who has a blog with tens of thousands of readers, many of whom are likely to buy or own computers. Instead of just being pushed around over the telephone by people reading from scripts and with little authority to do anything, customers can stand up for themselves and perhaps make the companies listen.

On the other hand, the justice meted out can quickly spiral out of control. It is one thing to criticize a company, but quite another to shut down or hack its website. The problem with justice on the Net is that it can often spiral into mob justice. The difficulty is, of course, finding the right balance between using the Internet to give consumers greater power and preventing attacks from being unjustly lodged or careening out of control.

Related Posts:
1. Solove, Sony DRM: Singing the Blues
2. Solove, Sony DRM and the Power of the Blogosphere
3. Solove, Of Privacy and Poop: Norm Enforcement Via the Blogosphere
4. Solove, Internet Shaming Redux: The Case of the Stolen Cell Phone
5. Solove, Fox News and Vigilante Justice Gone Bad (PrawfsBlawg)
6. Solove, Telephone Menu Cheat Cheat

Posted by Daniel Solove at 02:16 AM | Comments (15) | TrackBack

Weird E-Bay Auction

Via one of my contracts students, I found this bizarre ebay auction. The winning bidder paid $611.00 for the following item [emphasis added]

This is the PREMIUM BUNDLE BOX only. It would include bonus accessories, if it were the actual PREMIUM XBOX 360! DOES NOT Come with 20GB Hard Drive, Console, HD Cables, Wireless Controller, Headset! In other words for those of you who do not understand, YES YOU ARE GETTING AN EMPTY BOX SO DO NOT ASK! Great for gags! DO NOT bid if you don't intend to buy! No excuses, I will not retract bids for you! You will be reported to eBay if you backout after winning the auction. I Cannot be more clear! This is not even a factory made xbox 360 box. I made it myself, just a few minutes ago. It does not contain an Xbox 360 console, just the Xbox 360 home-made box. this box is great hand made by me says XBOX right on it[.] It doesn't look anything like the picture I included in the auction. It looks much better, in my opinion.

The student (rightly) noted that a disappointed buyer would have a hard time making out a fraud claim. Other defenses and excuses (mistake, unconscionability, no meeting of the minds, etc.), seem similarly problematic. The only possible wriggle-room I can think of - if the buyer does in fact feel aggreived when she or he receives the empty box - is that the auction history seems to bear some marks of puffing.
So, I guess someone is getting a $600+ empty box (not even an XBox Box!) under the tree, or by the menorah, this holiday season. They better appreciate it.

Posted by hoffman at 10:50 AM | Comments (18) | TrackBack

Why Don’t More Women Want To Be Law Professors?

For several years, the number of women in law schools has been very nearly the same as the number of men. But more men want to become law professors.

Among entry-level applicants for law teaching this year, the ratio of men to women is about 3:2. (The figure is based on the list of participants in the Association of American Law Schools recruiting program, the normal route to law teaching.)

Many schools want to increase the number of women on their (largely male) faculties, but the task is difficult if for every two women applying for jobs, there are three male applicants.

As reflected by the overall stiff competition for teaching jobs, being a law professor is a wonderful thing. Professors get to work on whatever interests them. The hours are embarrassingly flexible—few other jobs let you leave town for the entire summer. The pay, while less than in private practice, is very good. Nobody is supervising you on a day-to-day basis. And you can avoid co-workers you don’t like.

So why don’t more women law graduates apply for this most perfect of jobs?

Perhaps men are more likely to accumulate the credentials for entering academia: things like high grades, strong faculty recommendations, post-graduate fellowships, prestigious clerkships and prized work experience. An unequal distribution in these things might explain why men apply for teaching jobs more often than do women.

Though I haven’t tested it, I have a hunch that there is another explanation for the gender disparity: the surplus male applicants are the weakest candidates in the entire pool. If one were to eliminate, say, the bottom one-third of all of the applicants for teaching jobs, the gender ratio would return to 1:1.

Women, I suspect, apply to be professors only when their credentials make them competitive. Men, however, apply even if they are unqualified.

Because men imagine they are better than they really are and they care less about being rejected, they toss their hats in the ring. Women are less likely to exaggerate their chances of success and they consider failure an unacceptable outcome, so they only go forward with the application if they have a decent chance.

If the hiring process were perfect—everyone getting the faculty position they deserve—then this explanation would present no problem. But because of the vagaries of the process, some of the weakest candidates always make it through.

Men will luck out more often just because there are more of them; some of the women who refrain from applying would succeed if only they were to take a chance.

If my hunch is right, the overall result will be a continued gender imbalance in legal academia. Ignorance and hubris give men an advantage.

Posted by Jason_Mazzone at 06:13 AM | Comments (4) | TrackBack

ChoicePoint Wants Your Motor Vehicle Records

From the LA Times:

In recent months [ChoicePoint] has been meeting with officials of the California Department of Motor Vehicles in an effort to add the state's nearly 30 million vehicle registration records to its existing database of 19 billion nuggets of personal information — a hoard that is already the biggest in the industry.

ChoicePoint says it requested the DMV records for a client, the U.S. Department of Homeland Security. That suggests it may ask the state to waive the normal fee of 10 cents per record, or about $3 million. By state law, government agencies can access DMV records for free.

The article has some interesting facts about ChoicePoint's prior accessing of DMV records from other states:

The company's handling of motor vehicle records hasn't inspired confidence, either. In 2000, Pennsylvania terminated ChoicePoint's access to its drivers' license records and fined the company nearly $1.4 million because some records had been sold to unauthorized purchasers. ChoicePoint, characteristically, blamed one of its own customers for violating its rules. Pennsylvania authorities reinstated the contract a year later, with stringent conditions, because the company so dominated the business of providing motorist data to insurance companies that the insurers could barely function without it.

Along with several other data brokers, ChoicePoint has been accused in Florida of violating the federal Drivers Privacy Protection Act by selling motor vehicle records to marketers and other inappropriate buyers. (The act was designed to keep burglars and stalkers from obtaining motorists' home addresses based on license plates they spotted on the road.) A request for class-action certification is pending in federal court.

Why does the Department of Homeland Security want ChoicePoint to gather DMV records? According to the article:

Its real purpose in seeking the records remains murky. ChoicePoint refused to discuss its negotiations, other than to confirm that its client is the Department of Homeland Security. Staff members there were unable to identify the relevant contract for me. Then ChoicePoint, which holds about $50 million in contracts from a wide range of federal agencies, acknowledged that although Homeland Security was seeking the California records, it wasn't actually the contracting agency. Instead, it was utilizing an umbrella contract through which ChoicePoint services something called FedLink. This seems to be an information access program for the government, operated by the Library of Congress.

Related Posts:
1. Solove, ChoicePoint: More Than 145,000 Victims?

Posted by Daniel Solove at 03:11 AM | Comments (0) | TrackBack

Sex + Open Window = Photos + Internet

A simple equation of modern life. This story has an interesting set of ingredients: sex photos, privacy, email, websites, and free speech. From the Chronicle of Higher Education:

The University of Pennsylvania has charged at least one student with sexual harassment and misuse of electronic resources after he posted pictures on the Internet that show students apparently having sex while standing beside a large window in one of the university's high-rise dormitories.

Pictures of the nude students were taken by more than one photographer. The images made the rounds through e-mail messages and various Web sites, and at least one of the photographers posted the pictures on his personal Penn Web site at the end of September. Pictures taken by a different photographer were posted, and widely viewed, on collegehumor.com.

Although the subjects' faces are not clearly seen in the photographs, Penn students eventually found out who they were. At least one of the students in the pictures filed a sexual-harassment complaint with the university's Office of Student Conduct, naming the student who posted the images on his Penn Web site.

Student-conduct officials completed their investigation early in November. They recommended that the student, identified only as a junior majoring in engineering, write a letter of apology, write an essay explaining why what he did was wrong, and be placed on disciplinary probation until graduation, a penalty that would create a permanent record of the incident.

Those coming to the defense of the student note that the couple was having sex in public view and wasn't entitled to privacy and that the University's attempt to sanction the student was chilling of free speech.

According to another article, the University subsequently dropped the charges against the student, but still noted that it strongly disapproved of the student's behavior.

Thanks to Orin Kerr for pointing out this story.

Posted by Daniel Solove at 02:30 AM | Comments (2) | TrackBack

Alito's Footnote 10

Judge Alito's June 3, 1985, strategy memo to then Solicitor General Charles Fried on Thornburgh v. American College of Obstreticians has gotten some recent attention on the blogs and in the news media. Fried's cover note was a sure red flag that this would be better than a mere thank you note: "I need hardly say how sensitive this material is, and ask that it have no wider circulation."


I haven't seen extended focus on footnote 10 of the memo, which might become relatively significant at Judge Alito's confirmation hearings. Alito's strategy memo is a case for not directly attacking Roe. However, he didn't want the readers of the memo to think that this strategy "even tacitly concede[s] Roe's legitimacy". Quite to the contrary, footnote 10 states:

The case against Roe v. Wade has been fully and publicly made. See, e.g., A. Bickel, The Morality of Consent 27-29 (1975); A. Cox, The Role of the Supreme Court in American Government, 112-114 (1976); Epstein, Substantive Due Process By Any Other Name, 1973 Sup. Ct. Rev. 167-185; Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L. J. 920 (1973). In Akron, the Court's reponse was stare decisis and the "rule of law." [emphasis added; small typos corrected; formatting made simple]

It is this last sentence that caught my eye. The implicit message of the paragraph is "lots of really smart folks have demonstrated that Roe was wrongly decided and the only thing the court could say in response was 'stay the course'!" The sentence makes it significantly harder for Alito to follow Justice Roberts' path, and rely on paeans to the rule of law and stare decisis in response to questions about Roe. He's already told us what he thinks about that response, and it isn't much. Instead, Alito might be forced to actually say that he believes Roe should be reversed.
I think that the memo makes it incrementally more likely that we will see a filibuster, and somewhat more likely that we'll see a test of the flypaper thesis of supreme court nominations I proposed here.

Posted by hoffman at 05:22 PM | Comments (3) | TrackBack

Fake Biographies on Wikipedia

Most of us would be quite flattered to find an entry about us on the Wikipedia, an online encyclopedia where anybody can create or edit an entry. Not so for John Seigenthaler. His Wikipedia bio said:

John Seigenthaler Sr. was the assistant to Attorney General Robert Kennedy in the early 1960's. For a brief time, he was thought to have been directly involved in the Kennedy assassinations of both John, and his brother, Bobby. Nothing was ever proven.

In a USA Today editorial Seigenthaler begins by quoting the false bio and then writes:

I have no idea whose sick mind conceived the false, malicious "biography" that appeared under my name for 132 days on Wikipedia, the popular, online, free encyclopedia whose authors are unknown and virtually untraceable. . . .

At age 78, I thought I was beyond surprise or hurt at anything negative said about me. I was wrong. One sentence in the biography was true. I was Robert Kennedy's administrative assistant in the early 1960s. I also was his pallbearer. It was mind-boggling when my son, John Seigenthaler, journalist with NBC News, phoned later to say he found the same scurrilous text on Reference.com and Answers.com.

Seigenthaler explains how he tried to track down the person who posted the information:

I phoned Jimmy Wales, Wikipedia's founder and asked, "Do you ... have any way to know who wrote that?"

"No, we don't," he said. Representatives of the other two websites said their computers are programmed to copy data verbatim from Wikipedia, never checking whether it is false or factual.

He then tried to locate the defamer's identity by contacting his or her ISP:

Naturally, I want to unmask my "biographer." And, I am interested in letting many people know that Wikipedia is a flawed and irresponsible research tool.

But searching cyberspace for the identity of people who post spurious information can be frustrating. I found on Wikipedia the registered IP (Internet Protocol) number of my "biographer"- 65-81-97-208. I traced it to a customer of BellSouth Internet. That company advertises a phone number to report "Abuse Issues." An electronic voice said all complaints must be e-mailed. My two e-mails were answered by identical form letters, advising me that the company would conduct an investigation but might not tell me the results. It was signed "Abuse Team."

Wales, Wikipedia's founder, told me that BellSouth would not be helpful. "We have trouble with people posting abusive things over and over and over," he said. "We block their IP numbers, and they sneak in another way. So we contact the service providers, and they are not very responsive."

After three weeks, hearing nothing further about the Abuse Team investigation, I phoned BellSouth's Atlanta corporate headquarters, which led to conversations between my lawyer and BellSouth's counsel. My only remote chance of getting the name, I learned, was to file a "John or Jane Doe" lawsuit against my "biographer." Major communications Internet companies are bound by federal privacy laws that protect the identity of their customers, even those who defame online. Only if a lawsuit resulted in a court subpoena would BellSouth give up the name.

Eventually the information was taken down from Wikipedia:

My "biography" was posted May 26. On May 29, one of Wales' volunteers "edited" it only by correcting the misspelling of the word "early." For four months, Wikipedia depicted me as a suspected assassin before Wales erased it from his website's history Oct. 5. The falsehoods remained on Answers.com and Reference.com for three more weeks.

I certainly am sympathetic to Seigenthaler's plight, but his essay demonstrates how he attempted to take the wrong approach. First, the minute he found the false information on Wikipedia, he could have corrected it himself or had a friend do it. However, I don't know what process is available on Reference.com or Answers.com for making corrections. Second, if he wanted to sue the author of the entry for defamation, he could have done so by first filing a John Doe lawsuit in court. Courts provide special protection for anonymous speech, but that protection isn't absolute. For example, if Seigenthaler can establish a case sufficient enough to withstand a summary judgment motion, he will be able to unmask his defamer.

Related Posts:

WIKIPEDIA
1. Solove, Suing Wikipedia
2. Solove, Wiki Your Papers?
3. Hoffman, Wex
4. Wenger, Wikimania

LAWSUITS FOR ANONYMOUS POSTING
1. Solove, A Victory for Anonymous Blogging
2. Solove, Is Anonymous Blogging Possible?
3. Solove, Using Lawsuits to Unmask Anonymous Bloggers
4. Solove, Article III Groupie Disrobed: Thoughts on Blogging and Anonymity
5. Solove, The Blog Impersonators

Posted by Daniel Solove at 11:24 AM | Comments (8) | TrackBack

File-sharing & Social Capital

In the intellectual property / cyberlaw niche of the legal academy, I think it is fair to say that the litigation over Napster and Grokster has resulted in so much spilled ink that it is hard to keep up with the commentary. Indeed, while these are cases in my bailiwick, I never finished reading through the panoply of Grokster amicus briefs, much less all the law review articles on file-sharing.

What becomes quickly apparent from a skim of the literature, though, is that the policy questions entertained by lawyers in relation to file-sharing aren't as interesting as they might be. Copyright is a doctrinally complex regime of statutes and caselaw. However, at its core, it presents a fairly simple policy story, one of economic incentives for greater production and distribution. In other words, through our legal policy lens, the song becomes a widget and the accepted policy goal becomes the production and distribution of more and more widgets. Thus, to the extent a complex legal doctrine permits it to come to the surface, the relevant policy question for file-sharing is whether it will provide the public with more or fewer song-widgets. It's a bit disheartening that our intellectual property policy equates songs like American Pie, Hey Ya, and Toxic with three fungible barrels of crude oil--but perhaps judges, as Justice Holmes once opined, shouldn't really be in the business of making artistic policy judgments.

As a result, though, what often gets left out of the myriad legal ponderings on file-sharing is the social dimension of the activity. This isn't true across the board by any means -- Rosemary Coombe, Mike Madison, and recent guest-blogger Joe Liu, for example, have written law review articles with a clear interest in how popular content "consumption" is actually something much more interesting than the term suggests. But because the legal doctrine of copyright rests on that reductive incentives story (with a constitutional basis), it likely seems to many legal scholars that there is little reason to pay attention to the cultural dimensions of intellectual property law.

That's all by way of background to why I found this paper, presented at the CHI conference in April of this year, so interesting.

Released by researchers from the Georgia Institute of Technology and PARC, it is a small scale study of social file-sharing practices with regard to iTunes. The researchers note that they're breaking from the pack a bit by examing digital file-sharing as a community, not a legally charged, activity:

[P]olitical, legal, and ethical considerations -- digital rights management laws, in particular -- have catalyzed much of the recent changes in music sharing technologies and have led to an almost exclusive research focus on those issues. There is, however, a gap in the research that is available to inform current music sharing technologies - a lack of understanding about users' actual practices surrounding music sharing...

The report contains plenty of interesting anecdotes about the social nature of file-sharing in one office. For instance: Is it a good thing to share music if you have the technical ability to do so? Might your shared collection tell your co-workers, or your supervisors, something about you that you don't want them to know? Can you use your file-sharing as an educational opportunity? Do you have any ethical obligations to an anonymous co-worker who is listening to your collection?

What becomes quickly apparent from reading the paper is that a collection of shared music (in this particular social setting) is not just a stack of raw material, but a form of dynamic social capital as well -- perhaps even a form of social liability and an impetus for ethical obligations. In short, it's a fascinating read about exactly what digital file-sharing looks like in one case... even if it ultimately won't give you much help in understanding the law of the Grokster decision.

Posted by Greg_Lastowka at 09:45 AM | Comments (3) | TrackBack

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 justic