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Call Parker Brothers!: Scenes from An Exciting Evening in Tuscaloosa

Last night, a few colleagues were over at my place and we discussed the local gossip: the storm on campus over the sex column in our student newspaper, the Crimson-White, (which, btw, made the front page of the Tuscaloosa News this morning). Not a bad article on the controversy; it has a first amendment analysis of why the University can’t censor the column. And to their credit, the administration doesn’t want to. The article would, of course, have benefitted from a quotation from Dan Solove.

Then we turned to a game: "name professors at that school." The gist here is to have one person name a school and then see who can name the most professors at that school. There’s a permutation, which Scott England developed: pick a name out of the AALS Directory and ask where that person teaches. Of course, it has to compete with other Tuscaloosa faculty favorites, like “name the most important article in [pick a field] in the last decade.” Or, “what’s the most under-appreciated article in [pick a field].” Or, “what article/book do you wish you’d written?”

When I woke up this morning, it dawned on me that the game isn’t as much fun as the Ann Coulter Talking Doll. Perhaps Parker Brothers won't be interested, afterall.

Posted by Alfred_Brophy at 02:47 PM | Comments (2) | TrackBack

Wiki Art?

A new website called Swarm Sketch allows people to create a sketch in wiki fashion:

SwarmSketch is an ongoing online canvas that explores the possibilities of distributed design by the masses. Each week it randomly chooses a popular search term which becomes the sketch subject for the week. In this way, the collective is sketching what the collective thought was important each week. . . .

Each user can contribute a small amount of line per visit, then they are given the opportunity to vote on the opacity of lines submitted by other users. By voting, users moderate the input of other users, judging the quality of each line. The darkness of each line is the average of all its previous votes.

The sketch included in this post is entitled "Cell Phone Bandit." You can browse the other artwork here, including a rather vulgar picture of Jessica Simpson's wedding. Let's just say that wiki is no Picasso.

Hat tip: Google Blogoscoped

Related Posts:
1. Solove, Curtailing Anonymity on Wikipedia
2. Solove, Fake Biographies on Wikipedia
3. Solove, Suing Wikipedia
4. Solove, Wiki Your Papers?
5. Hoffman, Wex
6. Wenger, Wikimania

Posted by Daniel Solove at 12:07 AM | Comments (1) | TrackBack

Airline Screening List Mathematics

What do Santa Claus and DHS have in common? They both keep a list of who's naughty or nice. DHS's list isn't quite as large as Santa's, but it's getting quite big. From the AFP:

A watchlist of possible terror suspects distributed by the US government to airlines for pre-flight checks is now 80,000 names long, a Swedish newspaper reported, citing European air industry sources.

The classified list, which carried just 16 names before the September 11, 2001 attacks in New York and Washington had grown to 1,000 by the end of 2001, to 40,000 a year later and now stands at 80,000, Svenska Dagbladet reported.

Airlines must check each passenger flying to a US destination against the list, and contact the US Department of Homeland Security for further investigation if there is a matching name.

A few days ago, I blogged about a news article that revealed that 30,000 people are wrongly flagged as "matches" on the list.

So applying my very amateur mathematics skills, that means of the 80,000 names on the list, possibly about 30,000 of them (37.5%) match those of an innocent traveler.

Now, I bet that there are repeats, so several of the 30,000 could have the same name. If John Smith is one of the names on the list, it could account for a number of innocent travelers being flagged. Still, these numbers strike me as quite alarming. Something is seriously wrong. Is this really a competent way to go about airline security? What, precisely, gets a name on the list? Why are these lists so bad that they capture so many innocent people?

I guess the DHS is no Santa Claus.

Related Posts:
1. Solove, 30,000 Innocent Travelers Flagged on Airline Screening Lists
2. Solove, The Airline Screening Playset: Hours of Fun!
3. Solove, Airline Screening Stories
4. Solove, When Nuns Can't Fly

Hat tip: Privacy.org

Posted by Daniel Solove at 12:01 AM | Comments (3) | TrackBack

This one takes the cake

The Co-Op has a long and glorious tradition of blogging about public sex. We've posted about sex tapes. About Jennifer Aniston nudity. And about the privacy implications of students who have sex in front of an open window (and are photographed doing so).

But the latest blog story truly takes the cake. Blogger Scott Kaufmann recounts his uniquely interesting morning. The tale begins:

ME: Do do do do WHOA!
HALF-NAKED COUPLE IN MY OFFICE: GET THE FUCK OUT OF HERE!
ME: What?
HALF-NAKED FEMALE: DON'T YOU KNOCK? (putting shirt back on)

I don't even know where to begin with this one. Perhaps we should turn seek the opinion of our resident privacy advocate. Dan, does an amorous couple have a reasonable expectation of privacy if they choose to have sex in a faculty member's office? I think Professor Kaufmann's actions may have put an unreasonable damper on their free speech and expression.

Posted by Kaimipono at 08:33 PM | Comments (1) | TrackBack

Privacy and Guns

Over at the Volokh Conspiracy, Eugene Volokh (law, UCLA) fires off a few questions regarding the privacy of gunowners. He asks whether gun registration and licensing records should be available to the public. He also asks whether the requirement in some places that one cannot carry a concealed weapon is "an impermissible burden on people's privacy." Eugene writes:

I'm particularly interested in the views of those people who are sympathetic to gun controls -- and especially in limits on concealed carry -- but also see themselves as supporters of privacy.

Well, that's me, so I'll take a shot at responding. Although I am generally sympathetic to gun controls (not absolute bans of guns), I don't support infringing upon the privacy of gun owners. Often, this is used as a proxy for gun control, and it isn't a legitimate one or even an effective one.

Gun records should not be publicly available. I haven't heard a good articulation for why the public needs to know who owns a gun.

However, I generally support government recordkeeping of gun ownership as well as requiring technologies to enhance the traceability of discharged ammo to particular weapons. This might be very useful in solving gun crimes. I would, of course, favor strong protections to prevent government abuse of such data or government dragnet searches of people who own guns.

Regarding open carry laws, I have a hard time understanding the justifications for these laws. Do we really want people walking around with their guns openly displayed in their holsters? This isn't the Wild West, and I don't understand the benefits of prohibiting concealed guns. Unless there's a compelling benefit articulated, I don't think that open carry laws would be justified against the infringement upon privacy.

Posted by Daniel Solove at 07:24 PM | Comments (12) | TrackBack

Government and Disasters: The Emergency Commandeering Option

Hurricane Katrina demonstrated the problem, inherent to federalism, of federal-state coordination in responding to emergencies. When emergencies overwhelm localities and states, an effective response requires the assistance of the national government. Yet the national government itself is ineffective if it cannot quickly and efficiently coordinate and work with state and local personnel who—because they vastly outnumber federal civil personnel and are in the immediate vicinity of the emergency—necessarily carry out much of the response effort on the ground.

Thus, when it became clear that state and local officials could not deal adequately with Katrina’s aftermath, the President requested Governor Louisiana Kathleen Blanco to place New Orleans’ police under the control of federal officials so they could coordinate the overall response. Concerned with yielding control, the Governor refused the President’s request. As a result, federal and state personnel responded to the hurricane’s aftermath without the benefits of a single command structure; while people perished in New Orleans, officials argued about who was actually in charge.

So far, the only solution presented to this problem of federal-state coordination is itself highly problematic: the federal government can bypass civilian workers entirely and deploy the national military in their place. During Katrina the President considered this option, and the President has since called on Congress for specific authority to mount a military response to future domestic emergencies. However, the use of troops, currently prohibited in many circumstances under the Posse Comitatus Act of 1878, carries risks: professional soldiers, armed and ready for warfare, might produce order at the price of liberty.

There exists an alternative solution to the problem of federal-state coordination in emergencies, one that has been used at various times in our history, and that is based on some forgotten provisions of the Constitution. The solution is to allow the national government, in responding to certain kinds of emergencies, to call into periods of mandatory federal service local law enforcement and other personnel of the state in which the emergency occurs and, where needed, personnel from neighboring states.

During emergencies, these state employees would serve, with compensation, under the command of the President. As a result, the federal government would be empowered to direct the response effort and it would no longer be stymied by the vagaries of state and local bureaucracies. Under this scenario, therefore, the President would not have required Governor Blanco’s agreement to federalize New Orleans police: the order would have issued directly to the police department. The national government would also have been entitled to deploy to New Orleans police officers and other personnel from Arkansas, Texas, and other neighboring states.

The obvious objection to the proposal is that it entails a form of commandeering: the U.S. Supreme Court has ruled that under the Tenth Amendment, the federal government may not commandeer state legislatures or executive personnel.

Yet the anti-commandeering objection is misplaced. In provisions largely forgotten in modern times, the Constitution specifically authorizes the federal government to commandeer state personnel in periods of emergency. In the eighteenth-century, the principal personnel of state government were the state’s militiamen: militia units, operating under the authority of the state, were responsible for maintaining security, keeping order, quelling disturbances, and enforcing the state’s laws.

By the time of the constitutional convention, it had become clear that in certain emergency situations, a state’s militia, operating alone, would be inadequate to the task of mounting a response. Disturbances like Shays’ Rebellion in western Massachusetts in January 1787 had highlighted the need for a federally coordinated response to the most serious emergencies arising within the states. Yet the revolutionary generation deplored the idea of allowing the federal government to maintain and deploy large numbers of federal troops or other federal personnel.

The result of these competing concerns was that the 1789 Constitution permitted the federal government to commandeer, on a temporary basis, state militiamen in order to deal with three kinds of emergencies: invasions, insurrections, and opposition to federal law. Article I of the Constitution authorized Congress to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Article II made the President “Commander in Chief . . . of the Militia of the several States, when called into the actual Service of the United States.” So as to ensure those militiamen would be trained and equipped when called into periods of federal service, Article I further gave Congress power to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.”

Together, these provisions allowed for the federal government to respond to emergencies, without the need to deploy the national military or other federal personnel in large numbers. Nothing about the Tenth Amendment suggests that it altered this power of the national government to place the militia in federal service under these specified circumstances. For much of the nation’s early history, Congress called upon militiamen to deal with emergencies—for example, defending frontiers, putting down insurrections, and quelling opposition to federal laws—and paid them for their services.

The militia units of 1789 no longer exist. However, the federal government’s emergency commandeering power should be understood today to apply to law enforcement, emergency personnel, and other state employees who perform the duties once allocated to the militia. Notably, the Constitution does not define the term “militia,” and, in exercising its commandeering powers, Congress itself determined who was part of the militia for constitutional purposes. Congress can, therefore, specify today that, within the meaning of the Constitution, the militia comprises the states’ police officers, firefighters, and emergency responders.

In dealing with emergencies, the federal government is entitled to call these state employees into federal service. Further, just as the federal government once deployed militia units from one state to another, the emergency commandeering power allows the federal government today to send a state’s employees into other states where emergencies exist.

At the same time, the Constitution specifically limits emergency commandeering to times of invasion, insurrection, and opposition to federal law. Some kinds of emergencies—for example, a terrorist attack—clearly fall within these parameters. Other emergencies—for example, a forest fire—are less obviously within the scope of national power. Still, many emergencies will trigger the commandeering power because of their secondary effects: as New Orleans showed, natural disasters frequently produce riots and other forms of lawlessness within the constitutional conditions for federal deployment of state personnel.

A renewed understanding of the Constitution’s emergency commandeering provisions offers the best option for enhancing the nation’s ability to respond effectively to many kinds of emergencies, without the need to send the national military into our towns and onto our streets. In learning from Katrina and preparing for the next emergency, the possibility of emergency commandeering must be given serious consideration.

Posted by Jason_Mazzone at 06:35 PM | Comments (1) | TrackBack

Is the Supreme Court Moving to the National Mall?

I was reading a Washington Post article about plans to expand the Mall in Washington DC because of all the clutter from new monuments, museums, and memorials. On this page, the Post has a few visions for the new expanded Mall, which would utilize East Potomac Park. I was quite surprised when I read the caption at the top of the drawings:

Architects have responded to a call for ideas on expanding the Mall, particularly into East Potomac Park, with visions of plazas, museums, a new Supreme Court building, stores — and beaches.

Many people's first reactions might be: Beaches? In Washington, DC? But I'm a law nerd, so my reaction was: A new Supreme Court building? On the Mall?

Sure enough, one of the proposals has a new Supreme Court building sitting not too far from the Jefferson Memorial. I'm not too keen on this idea.

First, I think that the current Supreme Court building is glorious, and I wonder whether we really need a new Supreme Court building. As Jason Mazzone notes, the Court certainly hasn't been expanding its workload of late, so why would it need more space?

Second, I wonder whether the new location is a commentary on the Supreme Court. Instead of its current location behind the Capitol, it will sit rather isolated in a place near memorials. Is this insinuating that the Court has become isolated and aloof, sitting on an island practically all by itself? Is it insinuating that the Court has become an historical relic, something that mattered once in the past but that is now relegated to serving largely as a memorial?

Related Posts:
1. Solove, Old Courthouse Architecture
2. Solove, New Courthouse Architecture
3. Solove, More New Courthouse Architecture

Posted by Daniel Solove at 04:11 PM | Comments (5) | TrackBack

Ann Coulter: Come to Tuscaloosa

Thanks to one of my star students, Lee Birchall--a man with a degree from Dartmouth and a varsity athlete there who's now on the Alabama Law Review (look for a great article on golf law as a measure of American society coming soon to a law journal near you)--there are yet more phrases for the Ann Coulter talking doll! This time, it's "I love to engage in repartee with people who are stupider than I am."

Lee's a big fan of Ms. Coulter. After reading about her speech at the University of Connecticut, he's starting a move to get her to speak at UA. I know she'll get a warmer reception here than at U.Conn, at least if you can judge from the reception that Phyllis Schlafly received last spring at UA. And the good news is that he's offered to serve as her social host.

Posted by Alfred_Brophy at 02:41 PM | Comments (5) | TrackBack

Religion, Prisons, and the Irony of the Law

From time to time, my practice involves work for religious institutions and other parties dealing with issues involving the legal regulation of religion. Hence, I have done a bit of litigation involving the Religious Land Use and Institutionalized Persons Act (RLUIPA). It recently occurred to me that this law creates a neat little legal paradox: It is entirely possible that you could be sent to prison for engaging in some activity only to find that "on the inside" you had a legal right to engage in precisely the activity that put you there in the first place!

RLUIPA is the second round in Congress's response to the Supreme Court's decision in Employment Div. v. Smith. In Smith, the Court held in an opinion by Justice Scalia that religious conduct (in this case the use of the hallucinogen peyote as part of the sacrament of the Native American Church) that was forbidden by a neutral law of general applicability was not entitled to constitutional protection under the Free Exercise Clause. In other words, the government could not pass a law that said, "The use of Peyote as part of a religious sacrament is forbidden," but it could pass a law that said, "The use of Peyote is forbidden." So long as religion is not singled out, the Free Exercise Clause, so said the Court, has nothing to say.

Congress reacted to the decision by passing the Religious Freedom Restoration Act, which stated that any state action that placed a substantial burden on religious exercise must pass the compelling state interest test. In other words, rather than looking to whether the law is neutral, we should look to whether the law is burdensome. In City of Boerne v. Flores the Court held that RFRA exceeded congressional power and struck the law down. Congress responded by passing a narrower statute, RLUIPA, that applied only in the context of prisons and land use planning.

So here is the scenario:

Imagine that you are a member of the Native American Church, and you are prosecuted for using peyote as part of your religious ceremonies. You are tried in state court and at trial you raise the Free Exercise Clause as a defense. "No dice," says the Judge, "Smith put that claim to rest. The law is generally applicable and it is off to prison with you."

Once in prison, you find (not surprisingly) that you still cannot use peyote as part of your religious ceremonies. Its use is forbidden -- along with a lot of other drugs -- by state laws governing inmates. At this point, you file a law suit, arguing that the prison's prohibition on peyote violates RLUIPA.

The Judge says, "Didn't I just see you? We've been through this. Smith says that you have no right to smoke peyote."

To which you reply, "Not so fast your Honor. Smith merely states that as a matter of federal constitutional law I have no right to smoke peyote. Congress, however, has passed a special law that applies in the prison context. Under RLUIPA any law that burdens my religious practice while I am in prison must be subject to strict scrutiny. In other words, before the guards can take my peyote away they must show that the law serves a compelling state interest in the least restrictive means possible."

The Judge scratches his head for a moment and says, "Your right. Furthermore, while under ordinary rational basis scrutiny I think that the general peyote law that you were prosecuted under passes scrutiny, I don't think that peyote prohibitions can pass strict scrutiny. You get your hallucinogenic sacrament."

To which you reply, "Thank you your Honor. I also think that my due process rights are being violated because the prison is blocking the porn channels on my cable service."

"Nice try," says the Judge, "but no."

You then return to your cell were you happily use peyote each Sunday for the rest of your sentence. Some years later you are released. You walk outside the prison gates, go to the local Native American Church and use peyote. The DEA breaks in in the middle of the service and arrests you.

"Hey!" you shout, "I went to court and I have a legal right to use peyote!"

To which the DEA agent replies, with a wicked grin, "True enough. But you only have a legal right to use peyote when you are in prison. RLUIPA only applies outside of the prisons in the context of land-use regulations. Not to worry, however, as soon as we get you booked, tried, and sentenced for peyote use, you'll be back inside where you will have a legal right to use the substance as part of your religious rituals. And with repeat-offender laws, you'll have an even longer sentence this time..."

Such are the ironies of the law.

Posted by oman at 01:50 PM | Comments (11) | TrackBack

New York Times on Gold Farming

The New York Times carries a story today on gold farming activities in virtual worlds. "Gold farming" is the term used for acquiring virtual wealth within multi-player games like World of Warcraft and then selling it to other players for real cash. As the Times notes, it is a growing industry, despite the fact that the sales are usually in violation of the software contract of the games.

I mention this because exploring the legal issues raised by these environments has been a pet project of mine, and it has been interesting to see the popular media attention increasingly given to multi-player games as their demographics expand. In many ways, the predecessors of World of Warcraft were part of the impetus for the debates in the 1990's over the growing importance of cyberlaw as a field for legal inquiry. For instance, William Mitchell's City of Bits, about the construction of digital social spaces, is a book from 1994 that is well worth reading today.

If you want a crash course on the economics and society of virtual worlds, I'd recommend Virtual Worlds by Ted Castronova, Unreal Estate by Julian Dibbell, and this blog. For some thoughts on the legal dimensions, Dan Hunter and I have published two articles on point: The Laws of the Virtual Worlds and Virtual Crime. Among other writings on the topic are Virtual Property by Josh Fairfield and Virtual Liberty by Jack Balkin.

Even Judge Posner thinks this stuff is cool.

Posted by Greg_Lastowka at 08:25 AM | Comments (2) | TrackBack

Should Divorce Records Be Public or Private?

A USA Today story raises the issue about whether divorce records should be public or private. The article has a good discussion of the law of divorce record confidentiality, and it has examples of several cases where reporters obtained divorce records of celebrities and politicians in order to glean juicy bits of gossip. One of the most interesting cases involves Republican U.S. Senate candidate Jack Ryan, who ran in Illinois in 2004:

Republican contender Jack Ryan quit the race after news organizations persuaded a Los Angeles judge, over objections by Ryan and his ex-wife, to unseal their 2000 child-custody battle. Jeri Ryan, an actress in TV's Boston Public and Star Trek: Voyager, had alleged that her husband dragged her to "sex clubs" and asked her to have sex with him in front of strangers. She said she refused. . . .

I'm quoted in the story as siding with keeping divorce records confidential:

Daniel Solove, a professor and privacy advocate at George Washington University Law School, says it was "inappropriate" for the court to release the Ryan allegations. "It's a private matter, essentially a dispute between this couple. We don't say, 'You're running for politics and your priest should have to divulge confession records.' "

But Donald Schiller, a Chicago attorney, says, "If you're putting your character on the line for voters to see, maybe there should be no secrets. But that shouldn't apply to the average man or woman."

Although my quote came out fine, I wouldn't describe myself as a "privacy advocate." Both Schiller and I agree that divorce records should be private, but Schiller believes that they shouldn't be private for politicians. I believe they should be presumed to be private unless there's a very compelling reason to the contrary. Who's right, Schiller or myself? What about the divorce records of celebrities? Should they be public because celebrities are public figures? And perhaps, one could argue, divorce records should be public for everybody, even if they're not famous. After all, people getting a divorce are availing themselves of the courts, and courts are public institutions.

This is a very interesting and contentious issue. States are all over the place when it comes to policies regarding whether divorce records remain sealed or not. The article continues:

Solove says media claims of constitutional rights to court records are overblown. Divorce papers are "fun and interesting, and people are curious," Solove says. "But why should people be forced to give the government personal information, and then the press can use it for entertainment value?"

The media often spends far too much time fighting for information about celebrities or tawdry bits of gossip about politicians and not enough time fighting for information about what the government is up to. People make all sorts of allegations in divorce papers, and they lay bare very intimate details about their lives (and the lives of their families and children too). With regard to the Ryan case, the records contributed little to the issues involved in the campaign; indeed, it detracted from them. Both Jack and Jeri Ryan wanted the records sealed; they had a young child whom they didn't want to learn about the details of their sex lives. I don't think that this contributed to the public discourse, and people shouldn't have to have their personal lives exposed for all to see in order to get a divorce.

Related Posts:
1. Solove, Why Volokh Is Wrong on Public Records and the First Amendment

Posted by Daniel Solove at 12:47 AM | Comments (4) | TrackBack

Fanny Ellison

Thanks to my friend and Ellison scholar Lucas Morel, I found out that Fanny Ellison, Ralph Ellison's widow, died recently in New York of complications of hip surgery. She was 93. I had not known, until I read the New York Times obituary, how important she was in civil rights, theater, and culture in the 1940s, nor of her role in helping with Invisible Man.

I'm a huge fan of Ralph Ellison. Invisible Man, of course, has much to recommend it, particularly for lawyers. A lot of Ellison's mission in IM runs parallel to what the NAACP was trying to do through litigation in the years leading into Brown. And while it may be stretching the case to say that the invisible man authored Brown, I think Ellison's goal of focusing on our common humanity and on seeing people as individuals, rather than members of despised groups, appears in Brown as well.

One of my favorite passages in IM involves the elderly couple, who're being evicted from their Harlem apartment. The couple’s meager possessions are strewn on the sidewalk; there are fragments of life stretching back to the era of slavery–emancipation papers, a picture of Abraham Lincoln, a commemorative plate from the St. Louis World’s Fair, a newspaper account of Marcus Garvey, letters from their grandchildren, cheap furniture. The Invisible Man's refrain was, "[W]e're a law abiding people." Yet, the elderly couple was being evicted. So Ellison asked by what law were the couple being evicted? How could that eviction be consistent with law? The eviction was demanded by the "laws," it is true:

[L]ook up there in the doorway at that law standing there with his forty-five. Look at him, standing with his blue steel pistol and his blue serge suit, or one forty-five, you see ten for every one of us, ten guns and ten warm suits and ten fat bellies and ten million laws. Laws, that's what we call them down South! Laws!

The couple had almost nothing from which they could be evicted. All they had was “the Great Constitutional Dream Book” and even that they could not read.

And therein lie some really interesting questions: what did Ellison mean by the great constitutional dream book? It's an allusion, of course, to dream books, which were popular in African American culture in the late nineteenth and early twentieth centuries for interpreation of dreams (particularly for gambling purposes). (My friend Arlene Kiezer is working on dream books, by the way--so I hope I'm getting this story right.)

But I think Ellison is referring to the dreams of African American intellectuals more generally, about equality, the NAACP's campaign to stop lynching, the dreams of equal funding for separate schools, an end to discrimination in housing, voting, and segregation in public transportation. What's interesting is that folks, like Ellison, appealed to the Constitution as a way of achieving those dreams. There was, of course, a vastly different reality in the era of Jim Crow. The phrase "law" meant often the dictates of laughably biased judges, legislators, and other officials of law enforcement. Sometimes the Jim Crow system resulted in hideous violence, like the Tulsa riot of 1921. Young Ralph Ellison witnessed the destruction shortly afterward, when traveling home with his mother from Indiana to Oklahoma City. As a result, the young Ellison had little respect for "laws"--the statutes themselves or those judges and officers who enforced them.

Yet, there was an optimism among some--like Roscoe Dunjee, the editor of the Oklahoma City Black Dispatch and a father-figure to Ellison in his youth--that the world might be ordered differently. And though Dunjee's masculinity was impugned by other members of the Oklahoma black community for suggesting that the rule of law might offer some hope, Dunjee made constant appeals to law. In the 1930s he served on the board of the NAACP and in the 1940s he pushed Aida Louis Sipuel to file a lawsuit to integrate the University of Oklahoma's law school. The dreams of African American intellectuals in the 1910s influenced the development of political action and litigation strategies (as Kenneth Mack's recent article in Yale brilliantly reminds us). And what must have been particularly sweet for Roscoe Dunjee was that, though his idea of faith in the Constitution was ridiculed, he lived long enough to see the Brown decision. Or, to paraphrase Ellison's 1979 lecture at Brown University, "Going to the Territory," in the aftermath of the Tulsa riot Brown would have been "unthinkable--even as a comic, practical jok[e]." It is yet another example of the unexpected outdoing itself in its power to surprise. It's also a reminder of just how much and how quickly life changes for the better. Later in life, as a professor of literature at NYU, Ellison praised the virtues of Dunjee's faith in the principles of equality in the Constitution.

Fanny Ellison's obituary takes (what in my mind) is an inappropriate swipe at Ralph Ellison's post-humously published novel, Juneteenth. It's a complex book. One example here: a central character is Bliss, a boy of amibugous racial heritage, who's mother accusses a black man of rape. The man is lynched, then the man's brother raises the child in hopes that he will be able to teach the white community about the value of love. Bliss, however, crosses the race line and becomes a race-baiting Senator. Then, he is shot (by his black son!) while delivering a speech on the Senate floor. Whew. As I say, there's a lot going on in that novel.

For those interested in Ellison's jurisprudence, there's much in Juneteenth of use. In his notes for the book, Ellison elaborated on the conflict between religion and law, which had appeared in IM as well. And he also contrasted (in ways that may seem strange to lawyers) the facts, law, and truth. He commented on the "fact" that African Americans were subordinated by law; but that there is another truth:

don’t get the truth confused with law. The law deals with facts, and down here the facts are that we are weak and inferior. But while it looks like we are what the law says we are, don’t ever forget that we’ve been put in this position by the power of numbers, and the readiness of those numbers to use brutality to keep us within the law. Ah, but the truth is something else. We are not what the law, yes and custom, says we are and to protect our truth we have to protect ourselves from the definition of the law. Because the law’s facts have made us outlaws. Yes, that’s the truth, but only part of it; for . . . we’re outlaws in Christ and Christ is the higher truth.

We're all very fortunate that Fanny Ellison allowed Juneteenth to be published and we're all poorer with her loss. Yet another connection to the past is gone.

Posted by Alfred_Brophy at 03:58 PM | Comments (0) | TrackBack

Scientists Say The Sun Rises in the East

This story (via Andrew Sullivan) on Iran President Mahmoud Ahmadinejad's view of Israel and the holocaust, contains the following paragraphs:

"Some European countries insist on saying that Hitler killed millions of innocent Jews in furnaces and they insist on it to the extent that if anyone proves something contrary to that they condemn that person and throw them in jail," [a news organization] quoted Ahmadinejad as saying.

"Although we don't accept this claim, if we suppose it is true, our question for the Europeans is: is the killing of innocent Jewish people by Hitler the reason for their support to the occupiers of Jerusalem?" he said.

"If the Europeans are honest they should give some of their provinces in Europe -- like in Germany, Austria or other countries -- to the Zionists and the Zionists can establish their state in Europe. You offer part of Europe and we will support it."

Historians say six million Jews were killed in the Nazi Holocaust.

Those crazy historians and the things they "say."
It isn't as though Reuters doesn't believe that it can state things as facts. Other examples of facts, shorn of attribution, from the article include:

Ahmadinejad's earlier "call in October for Israel to be 'wiped off the map'" "sparked widespread international condemnation."

"Close allies when Iran was ruled by the U.S.-backed Shah, Iran and Israel have become implacable foes since Iran's 1979 Islamic revolution."

Jews trace their roots in Israel back to Biblical times.

Posted by hoffman at 03:33 PM | Comments (3) | TrackBack

Jennifer Aniston's Cease and Desist Letter

Eric Goldman has a very interesting post about the cease and desist (C&D) letter that Jennifer Aniston's attorneys sent to the paparazzi who took her photograph. The letter is posted on The Smoking Gun website. The letter states several times that it is to remain confidential, and it has this language:

This letter is a confidential legal communication and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will constitute a breach of confidence and a violation of the Copyright Act, and You are not authorized to publish this letter in whole or in part absent our express written authorization.

Goldman observes:

How can a lawyer claim that a cease-and-desist letter is a confidential communication? In general, sending the letter to a third party without any confidentiality assurances should blow any legal confidentiality protections. . . . . I don't see how the confidentiality demands/instructions are anything more than hyperbolic and low-efficacy scare tactics.

The copyright issue is more complex. The letter should qualify as an original work of authorship, and posting the letter online should violate at least 2 of the 106 rights (reproduction and distribution).

But is there some legal defense that nevertheless permits the reposting of C&D letters? The most obvious one is fair use, but fair use analyses are always tricky. . . .

Senders of C&D letters should be accountable for their actions. They seek legal redress and the letters themselves are legally significant (i.e., they could create the basis for willfulness determinations; they may be the basis for the recipient seeking a declaratory judgment). To fully understand what is taking place in the field, information about these C&Ds has to enter the public discourse. And simply reporting the receipt of a C&D isn't enough--to understand the letter and its potential impacts, external observers have to read the precise words used.

Therefore, I would strongly favor a statute that exculpates C&D letter recipients from republishing the letter. Because such a statute is unlikely, I am hoping the courts will create a defacto per se fair use exclusion for republishing C&D letters. Meanwhile, kudos to the Smoking Gun for not letting the repeated exhortations keep the letter off the Internet.

I wholeheartedly agree. There's more at Eric's post, which also discusses how Google goes about publicizing the C&D letters it receives.

Related Posts:
1. Solove, Jennifer Aniston Nude Photos and the Anti-Paparazzi Act

Posted by Daniel Solove at 02:14 PM | Comments (7) | TrackBack

30,000 Innocent Travelers Flagged on Airline Screening Lists

From ZDNET:

About 30,000 airline passengers have discovered since last November that their names were mistakenly matched with those appearing on federal watch lists, a transportation security official said Tuesday.

Jim Kennedy, director of the Transportation Security Administration's redress office, revealed the errors at a quarterly meeting convened here by the U.S. Department of Homeland Security's Data Privacy and Integrity Advisory Committee.

The 30,000 are on the "selectee" list, which means they aren't barred from flying; instead, they are continually singled out for additional screening. If you're one of the unlucky 30,000, what do you do? Can you rectify the situation? Sort of -- and only after a lot of effort:

Kennedy said that travelers have had to ask the TSA to clear their identities from watch lists by submitting a "Passenger Identity Verification Form" and three notarized copies of identification documents. On average, he said, it takes officials 45 to 60 days to evaluate the request and make any necessary changes. . . .

Sounds like fun . . . and getting notarized copies isn't cheap either. But you're cleared then, right? Not so fast:

After submitting their notarized forms and identifications, and waiting for evaluations, the vast majority of the people mistakenly matched to names on the watch list have now been added to a "clearance" list. That doesn't mean their names are erased from the watch list. In fact, travelers who go through the paperwork are told, Kennedy said, that "it will not quote 'remove' you from the list because the person we're still looking for is out there."

Instead, their names are put on the separate clearance list, which means they typically can't check in for flights at an unmanned kiosk and must approach the ticket counter to explain their situation and have an airline employee match their name to the clearance list.

That's nice. So 30,000 people, even after being "cleared," will still never be able to check in at the kiosk and instead have to wait on long lines at the regular check-in where they must then go through a process to confirm their "clearance" each and every time they fly. Lucky them.

They must feel like Sisyphus, who according to the Greek legend, had to push a stone up a hill, which would promptly fall back down -- a process that would repeat for eternity.

Actually, perhaps it is most apt to quote from Franz Kafka's The Trial:

When he has the document asserting the defendant's innocence, guaranteed by a number of other judges, the judge can acquit you without any worries, and although there are still several formalities to be gone through there's no doubt that that's what he'll do as a favor to me and several other acquaintances. You, however, walk out the court and you're free." "So, then I'll be free," said K., hesitantly. "That's right," said the painter, "but only apparently free or, to put it a better way, temporarily free, as the most junior judges, the ones I know, they don't have the right to give the final acquittal. Only the highest judge can do that, in the court that's quite out of reach for you, for me and for all of us. . . . . If there's an absolute acquittal all proceedings should stop, everything disappears from the process, not just the indictment but the trial and even the acquittal disappears, everything just disappears. With an apparent acquittal it's different. When that happens, nothing has changed except that the case for your innocence, for your acquittal and the grounds for the acquittal have been made stronger. Apart from that, proceedings go on as before. . . . It's impossible to know exactly what's happening while this is going on. . . . .”

Kafka, it seems, was well familiar with the TSA.

Related Posts:
1. Solove, The Airline Screening Playset: Hours of Fun!
2. Solove, Airline Screening Stories
3. Solove, When Nuns Can't Fly

Hat tip: Bruce Schneier

Posted by Daniel Solove at 03:54 PM | Comments (2) | TrackBack

The Consumerist

Readers interested in my post a few days ago about the Internet shaming of corporations, Seeking Justice Against Bad Business -- Blogosphere Style, might find The Consumerist to be of interest. This website is a fusion between consumer reports and a tabloid. Its welcome message reads:

Welcome, internet, to The Consumerist, the latest title from Gawker Media. The Consumerist loves to shop, and is reconciled to utilities, but hates paying for shoddy products, inhumane customer support, and half-assed service.

Each week The Consumerist will guide you through the delinquencies of retail and service organizations. The Consumerist will highlight the persistent, shameless boners of modern consumerism — and the latest hot deals, discounts, and freebies around.

Join us. You’ll tell us when you’ve been royally screwed by yet another company, and we’ll channel your rage. Together we will storm the revolving doors of faceless corporations to call them naughty words for genitals, and they will begin to fear us.

The Consumerist. Capitalism is broken. We’ll help you fix it.

Gawker Media owns several blogs, including Gawker, Wonkette, and Defamer.

Hat tip: BoingBoing

Posted by Daniel Solove at 03:34 PM | Comments (0) | TrackBack

Jennifer Aniston Nude Photos and the Anti-Paparazzi Act

Jennifer Aniston is suing a paparazzi who took nude photos of her. In a complaint filed in Los Angeles Superior Court, Aniston claims that Peter Brandt took topless photographs of her from a significant distance from her home. He used a high-powered telephoto lens to photograph her at her home. Aniston's lawyers claim the photos were taken from over a mile away, but Brandt claims that this would be "impossible . . . unless you have something from NASA."

Jack Chin at CrimProf expresses disbelief at the case:

Nude Photos of Jennifer Aniston can't possibly be "illegal" if taken from a lawful vantagepoint with commercially available and commonly used equipment, can they? At least, they cannot violate a "reasonable expectation of privacy," right? But lawyers who filed a lawsuit described on The Smoking Gun say otherwise.

This case is an example of the application of California's Anti-Paparazzi Act. In a previous post about the Act, I observed:

The Anti-Paparazzi Act creates heightened penalties when a person commits a trespass “in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person.” A person can also be liable even if there is no trespass if he “attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device.”

Violations of the Act carry damages up to "three times the amount of any general and special damages that are proximately caused by the violation of this section." Punitive damages and disgorgement of any of the paparazzi’s proceeds from the sale of the photos are also available remedies. Further, the Act punishes a person who “directs, solicits, actually induces, or actually causes” a person to violate the law. §1708.8(d). The Act applies even if no image or recording is ever captured or sold. §1708.8(i).

Does Aniston have a reasonable expectation of privacy? I believe she might very well have a good case. She was at her home, and it appears as though Brandt had to be very far away in order to take the photos. Some might glibly say that if people want privacy at home, they should just shut their windows and never wander into their yards. But with today's powerful zoom lenses, should we really have to live with our blinds constantly pulled down? Unless we protect people from the use of this kind of technology, it will interfere with their freedom upon their own property.

I believe that it is formalistic to conclude that people lack an expectation of privacy whenever it is possible for a person to be seen or heard. We can even expect privacy in public at times. When we're in a restaurant, we might expect small snippets of our conversations to be overheard by people at tables immediately surrounding us. But this doesn't mean, however, that we expect to have our conversation recorded from afar with a parabolic microphone. If we buy medication at a drug store, we expect that the person at the check out counter will see it, but we don't expect the information about what we buy to be publicized to the world. For additional arguments, Helen Nissenbaum has written extensively on why people can expect privacy in public.

Brandt will probably counter with a First Amendment defense, but as I've explained in an earlier post, I don't believe that the Anti-Paparazzi Act presents a First Amendment problem.

I discuss the issue of free speech vs. privacy in much greater detail in my article, The Virtues of Knowing Less: Justifying Privacy Protections Against Dislcosure, 53 Dule L.J. 957 (2003).

Related Posts:
1. Solove, Sex + Open Window = Photos + Internet
2. Solove, California’s Tougher Anti-Paparazzi Law and the First Amendment

Posted by Daniel Solove at 01:07 PM | Comments (9) | TrackBack

Law Review Citations and Law School Rankings

There's no shortage of writing on law reviews or law school rankings, to say the least. So why not combine the two?

Questions about law review ranking abound. How does one compare offers from journals at relatively equal schools? Is it better to publish with a journal that is more frequently cited or with one at a higher ranked law school? Is it better to publish with a main law journal at a top 40ish law school or the secondary at a top 10 law school? Questions about law school rankings abound as well, particularly for schools outside of the top 30 or so. (Or so it seems to me.)

I'm partial to citation studies as a way of judging quality. I know that citations have lots of problems as a way of ranking journals (or individual authors). However, I like the objectivity citation studies provide. And so I'm partial to the Washington and Lee Law Library's website, which provides comprehensive data on citations to hundreds of law journals by other journals and by courts. I've found it useful in trying to draw some comparisons between journals. Other people often draw comparisons between journals by looking to the US News ranking of the journal's school.

But this leads to some further questions: what's the relationship between citations to law journals and the reputation of the school that publishes it? I have a vested interest in this question, because I'm the faculty advisor to the Alabama Law Review. (I like to argue to my dean that we need lots of money to host symposia, which he gives us.) And as someone who wants to encourage good scholarship, I hope that good scholarship and good journals are rewarded--that a good journal will reflect well on the reputation of the school that publishes it.

So that led me to analyze the US News data for 2006 (which actually appeared in the spring of 2005) and the 2004 W&L Law Library citation data (which measures citations to works published from 1997 to 2004). There's a high correlation (.86) between citations and peer assessment scores for the US News top 50 schools.

I also looked at Professor Brian Leiter's reputation survey, which I think represents a significant improvement methodologically over the US News data for the schools that he surveys. Some interesting stuff here--there's a high correlation between Leiter's reputation scores and the US News peer assessment (.91) and journal citations (.83).

But then things begin to get a little more surprising. For schools in the US News 52-102 range, the correlation is not nearly so high (.57). The correlation becomes even weaker when we consider journals at schools in the third and fourth tier (.41). The correlations are significantly weaker at each level between peer assessment and citations by courts: .66 for US News top 50 schools; .12 for US News 52-102 schools; .25 for US News tier 3 and 4 schools.

My paper contains detailed tables reporting the data and speculates some on their meaning. I suspect that people at schools whose journals over-perform (like Fordham, Cardozo, University of Miami, University of Kansas, DePaul, Albany, Indiana--Indianapolis, University of Colorado, and Houston) are going to be quite pleased with the results. Faculty at other schools may have other explanations--like the frequency of citation doesn't mean much. And on that they may be correct. A lot of really, really fine work is rarely cited. I know that to be the case in legal history, the area of scholarship I know best, and suspect it's true for some other important areas of the legal scholarship. Part of the problem with citations to legal history is that relatively little scholarship is being written in that area, so there are comparatively few opportunities to cite work.

There are some serious limitations with citation studies, of course. But the data are worth considering. One implication that I suggest is that for third and fourth tier schools, the citation data may be a way of bringing some precision to the peer assessments of school quality. Perhaps US News should look to citation data to gauge something about the intellectual orientation of a school.

Because my time as a guest at concurringopinions is about to expire, I rushed a little to get a draft of the paper out before I turn into a pumpkin. There's some more I plan to do with this (including using the recently posted 2005 citation data and looking more at variances between amount of citations at each tier of school). A special thanks to Brian Leiter, who's doing a lot to bring some more rationality to the rankings world.

Related posts by some other folks:

Kaimi Wenger's On Rankings Bias; or, Why Leiter's rankings make Texas look good -- and why that's not a bad thing

Kaimi Wenger's The Uneasy Case for the US News Law School Rankings

Dave Hoffman's Ann Coulter on Law School Rankings

Betsy McKenzie's Law Students as Consumers of Rankings

Brian Leiter's April 2004 More Thoughts on the US News Law School Rankings

Brian Leiter's March 2005 Updating the 2003-04 Law School Rankings

Brian Leiter's April 2005 More on the US News Rankings Echo Chamber

Brian Leiter's August 2005 NY Times Expose of How Law Schools Manipulate the US News Rankings

Posted by Alfred_Brophy at 11:44 AM | Comments (10) | TrackBack

Searching the State

As a temporary diversion from discussions of state searches, you might want to search the state a bit -- the State of the Union that is. Jonathan Corum has put together this pretty tool (explanation here) that allows you to pull up George Bush's state of the union addresses and compare the number of instances where particular words are used. If you check a box, you can see the sentences in which the words appear. Here are some for starters:

George Bush on "terror" versus "taxes"

Bush on "evil" versus "freedom"

Washington, Lincoln, Reagan, and Clinton on "nation" v "state"

Perhaps readers can pull out some more interesting/humorous comparisons. Credit due to my RSS feed from the excellent information aesthetics blog.

p.s. Dan would probably be interested in this one from IA -- a online GPS diary tracking the artist's movements on various days.

Posted by Greg_Lastowka at 09:36 AM | Comments (1) | TrackBack

Subways, Searches, and Slippery Slopes

The gloves are off. Dave Hoffman has lodged another challenge to my position, and I want to take a quick moment to defend myself.

I believe that Dave mischaracterizes my arguments in several places and exaggerates some of my claims. So I'll attempt to clear up any confusion as to my positions and try to defend my turf.

1. I'm not a privacy absolutist. If I were, I wouldn't even be speaking about whether the subway searches were effective or not, as it would be irrelevant.

2. I am not arguing that we're on a slippery slope toward totalitarianism. I am arguing that the "show of force" that Jason extols is something that totalitarian societies do, and it has effects on shaping people's attitudes and their sense of freedom. It has "expressive" content. My argument is not that we're going to quickly slide down the slope to Big Brother. Rather, my argument is that the searches and other displays of force Jason speaks about are similar tactics to those used in totalitarian societies. They won't necessarily make us into such a society, but they do introduce different elements into our own society that will have some effect. Allowing police to search people as they travel about the city, without any suspicion of wrongdoing, is a significant change in the tone and tenor of life in NYC. Although this will not lead to the government's installing telescreens into people's homes anytime soon, the subway search policy isn't a trivial initiative. Nor are the other displays of force Jason speaks about. They affect the very atmosphere in which we live.

3. I did not invoke Korematsu to suggest that we're on a slippery slope to internment. I invoked it to suggest that it involves the same arguments and logic of deference. The point is that the government officials were wrong with regard to the Japanese Internment, and perhaps this should serve as a lesson to courts that government officials do not always know better. It also demonstrates the lengths to which the government can go when security is threatened. I raise Korematsu not as a slippery slope problem but as a cautionary tale that in the face of security threats, the government (and the population at large) can make rash and unwise decisions. This is a reason why courts shouldn't defer but should keep a very critical eye on the policies adopted by the government in times of crisis.

4. Dave writes: "What is the court to do if the plaintiff doesn't show up with the right folks, hire an independent security consultant?" Well . . . yes. Justice Brandeis took it upon himself to research the issues when he wasn't convinced with what the parties brought him. That's what a good judge should do. In cases having an impact beyond just the particular parties, courts should have a responsibility to get it right. In other words, the court's responsibility is not just to see which litigant plays the better game, which litigant performs the best, but to make the best decision under the law. If a court is skeptical of something and is unconvinced by the evidence, then the court can readily demand more of the parties or perhaps even call an independent expert of the court's own choosing. But it seems silly for a court to say: "Well, even though the case affects millions of people, I'll rule in favor of the party that performed the best -- even though I don't know that the outcome is right."

5. I am not conflating the Fourth Amendment and the wisdom of the search policy. The Fourth Amendment requires a balancing -- a determination of the reasonableness of the policy. This involves examining whether the policy is effective, whether alternatives are available, and so on. How can one balance the search policy against privacy if one doesn't examine these issues?

6. I am not demanding that the government have to justify the search policy as the "least intrusive method necessary" or "the most effective strategy policy possible." This grossly exaggerates my position. I do believe, however, that the Fourth Amendment requires that the searches have at least a reasonable degree of effectiveness. And if other equally or more effective strategies are available that don't infringe upon liberties, then this should effect the calculus about whether the search policy is reasonable. I'm not demanding that NYC adopt the best strategy. When liberties are sacrificed, however, the strategy should at least have a level of effectiveness that outweighs the costs.

7. It is true that part of my argument deals with the general lack of wisdom of the search policy. I definitely make arguments about the policy's wisdom (and the wisdom of certain general strategies in combating terrorism) that are independent of the Fourth Amendment analysis. The Fourth Amendment doesn't require the best policy -- and the subway searches are clearly not the best. But the Fourth Amendment requires a policy where the effectiveness outweighs the costs -- and on this ground, I believe, the NYC subway search policy also fails.

Related Posts:

1. Solove, NYC Subway Searches Upheld: A Critique of the Court’s Decision
2. Mazzone, Subway Searches: A View from New York (critiquing Solove)
3. Hoffman, NYC Subway Searches: A Response to Dan (critiquing Solove)
4. Solove, Rational Security vs. Symbolic Security (responding to Hoffman and Mazzone)
5. Hoffman, Are Subway Searches Really the Top of a Slippery Slope to Korematsu (replying to Solove)
6. Mazzone, Democratic Searches and Seizures (replying to Solove)

UPDATE: Hanno Kaiser has some interesting arguments about the issue at Law & Society Weblog:

In the conclusions of law, the court writes:

Against the compelling government interest in preventing a terrorist attack, the Court has weighted the (relatively limited) level of intrusion imposed upon subway riders.

Borrowing language from economics, the court compares totals, i.e., a terrorist attack, with marginals, i.e., the intrusions imposed upon subway riders. The comparison is not between “preventing terrorist attacks” and “people’s privacy” (two totals), nor is it between “the increase in safety from the subway bag search program as challenged” and “the relatively minor intrusions imposed upon subway riders by the program” (two marginals). As between the two, only the latter is a reasonable approach to weighing competing interests, but be that as it may, comparing marginals to totals is simply not meaningful, because the totals will always win. The court’s faux balancing is merely a rhetorical gloss on a foregone conclusion.

Posted by Daniel Solove at 03:48 PM | Comments (2) | TrackBack

Are Subway Searches Really the Top of the Slippery Slope to Korematsu?

Dan's "Rational Security" post and Jason's provoking democratic searches response seem to me to have occupied part of the field of what I wanted to say here, which is that random suspicionless searches can be left to democratic controls without imperiling the entire constitutional order.

A bigger issue for Dan and privacy absolutists: not all anti-terror policies lead to Korematsu! Although I'm significantly more sympathetic to slippery slope arguments than I used to be, thanks to Volokh, I think Dan's argument here is off-target. The differences between the internment cases, involving racially suspect classifications, and the searches here are evident. Most significantly, in a factual finding that commentators on this site appear to be ignoring, these really are random searches; the police aren't permitted discretion to search any particular suspect class. Dan argues nonetheless that checking bags of subway entrants is a first step toward totalitarianism. I'd like to hear more about the mechanisms of this particular slippery slope. But until I do, my intuition is that a policy that burdens equally all residents is significantly less troubling than one that does not.

Dan also, I think, ignores my point that the court really didn't defer to the government here, at least as deference is normally understood. Sure, the court is tougher on plaintiff's witnesses, but that is because they didn't have the relevant expertise. What is the court to do if the plaintiff doesn't show up with the right folks, hire an independent security consultant? That isn't how our system works.

I take Dan's big point to be that this is an unwise policy. It (according to him) misallocates scarce dollars on a policy that will not have significant deterrent effects. I disagree that simply because the chance of search are low and terrorists might be able to evade the cordon we can conclude that there is no or low deterrence. But putting that aside, there is a space between what the Fourth Amendment permits and what smart police policy ought to be. (Thanks to my colleague Craig Green for reminding me of this). To conflate the two, i.e., to require the police to justify anti-terror searches as the least intrusive method necessary, or the most effective strategy policy possible, would simply be to substitute the anti-terror judgments of one group of elites (judges and scholars) for another (elected officials and police authorities). What is the normative argument for that result?

Posted by hoffman at 11:47 AM | Comments (9) | TrackBack