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SupremeCourtOf TheUnitedStates.blogspot.com?

The New York Times Book Review this week has an article (“What Are They Saying About Me?) about book authors and blogging. In addition to discussing the varying practices of authors in the blogosphere--some authors read obsessively what is said about their books, some don’t bother at all--the article discusses the possibility of blogs improving books before publication.

Cass Sunstein is quoted as saying that pre-publication comments at the Volokh Conspiracy affected the content of his recent book, Radicals in Robes. (Sunstein doesn’t actually say the comments improved his book but presumably that’s what he means.)

That got me thinking. I have previously complained about the poor quality of Supreme Court opinions.

Maybe a blog can help the nine Justices?

Here, then, is a simple proposal: The Supreme Court should operate a blog to generate input on the Court’s opinions before they are published. The postings could range from limited issues (“if we decide in the petitioner’s favor, is it better to remand to the lower courts?”) to entire drafts of opinions and requests for comments.

We’re accustomed to secrecy in decision-making at the Supreme Court. But there is no particular reason that has to be the norm. Improving the Court’s ultimate product is a good reason for lifting the curtain.

Moreover, the Court already gets input from non-parties in the form of amicus briefs. A blog would expand on that principle and allow input from a wider audience. A blog would also allow the Justices to get help when issues arise during the course of preparing an opinion—the point at which they most likely need assistance.

The Justices will need to give some thought to how to structure their blog. An unmoderated Supreme Court blog would attract a lot of comments, many of which would be less insightful and helpful than others. (Look at the reader comments at the Volokh conspiracy for evidence of that problem.) So perhaps comments should be limited to registered users. Perhaps registration should require some kind of screening process. Law professors might qualify more easily than, say, astrologers. Anonymous posts probably should not be allowed.

But with some careful planning, a Supreme Court blog could vastly improve the quality of the Court’s ultimate product.

Indeed, it has already worked for Radicals in Robes.

Posted by Jason_Mazzone at 06:41 PM | Comments (5) | TrackBack

How Much Government Secrecy Is Really Necessary?

Responding to reports that revealed that the President authorized the NSA to conduct warrantless surveillance within the US, President Bush said:

"The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk."

I'm growing weary of arguments like this. How, exactly, does the revelation of the fact that Bush authorized the NSA to conduct surveillance -- possibly exceeding the limits of his lawful powers -- put "our citizens at risk"? Why is every disclosure about the extent of the government's surveillance somehow assisting the terrorists?

The argument seems to be that we can't have a national debate about the nature and extent of government surveillance because such information will help the terrorists. But central to any viable democracy is a government that is publicly accountable, and that requires that the people have the information they need to assess their government's activities.

Recently, I blogged about a story involving a secret DOD database of protesters. And there's a debate going on about a secret regulation in the Gilmore case. The debate has focused on whether the secret information in the case is really a regulation, a law, or something else, but the larger question remains: Why does it need to be a secret?

Far too often, we trust the government when it claims the need for secrecy, but should we? The government called for secrecy of the Pentagon Papers to protect national security. The Attorney General stated that the disclosure of the Pentagon Papers "will cause irreparable injury to the defense interests of the United States." Stephen Dycus et al., National Security Law 1017 (3d ed. 2002). These claims were, in fact, way overblown, if not outright false.

As Mary-Rose Papandrea notes, courts are often far too willing to defer to government claims of secrecy: "When information arguably involves national security, courts are too timid to force the executive branch to provide a thorough explanation for continued secrecy." Mary-Rose Papandrea, Under Attack: The Public's Right to Know and the War on Terror, 25 B.C. Third World L.J. 35 (2005).

It's not just the courts, but the public and Congress who are often being too deferential. There have been far too many empty declarations of the need for secrecy to give the government much credibility in this regard. If you want to be trusted, you must be trustworthy. It is a lesson, sadly, that the executive branch and executive agencies have not seemed to learn.

Related Posts:
1. Solove, President Bush, the National Security Agency, and Surveillance
2. Solove, Did President Bush Have the Legal Authority to Authorize NSA Surveillance?
3. Solove, A Secret Department of Defense Database of Protesters

Also of Interest: EPIC's FOIA Webpages

Hat tip: Talking Points Memo

Posted by Daniel Solove at 02:04 PM | Comments (5) | TrackBack

Did Bush Have the Legal Authority Under FISA to Authorize NSA Surveillance?

Yesterday, I blogged about a startling story in the NY Times about President Bush's authorizing the NSA to conduct domestic surveillance without a warrant or even a court order. According to the NY Times story, the "legal opinions that support the N.S.A. operation remain classified."

Today in the NY Times is a follow-up story about the legal basis for the President's actions. According to the story:

[S]ome legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush's assertion of his powers.

"Obviously we have to do things differently because of the terrorist threat," said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. "But to do it without the participation of the Congress and the courts is unwise in the extreme." . . .

William C. Banks, a widely respected authority on national security law at Syracuse University, said the N.S.A. revelation came as a shock, even given the administration's past assertions of presidential powers.

"I was frankly astonished by the story," he said. "My head is spinning."

Professor Banks said the president's power as commander in chief "is really limited to situations involving military force - anything needed to repel an attack. I don't think the commander in chief power allows" the warrantless eavesdropping, he said. . . .

In engaging in the surveillance, the President may have ignored the legal procedures set forth in the Foreign Intelligence Surveillance Act (FISA) of 1978.

The FISA allows the government to engage in electronic surveillance if it obtains a court order from the Foreign Intelligence Surveillance Court (FISC), which meets in secret. The government must demonstrate probable cause that the monitored party is a "foreign power" or an "agent of a foreign power." 50 U.S.C. § 1801. If the monitored party is a U.S. citizen, however, the goverment must establish probable cause that the party's activities "may" or "are about to" involve a criminal violation. Id.

FISA even provides procedures for surveillance without court orders. Such surveillance, however, must be "solely directed" at gathering intelligence from "foreign powers" and there must be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." 50 U.S.C. § 1802(a). The surveillance authorized by the President, however, involved U.S. citizens, thus making § 1802 unavailable.

FISA also has § 1844, which provides that "the President, through the Attorney general, may authorize the use of a pen register or trap and trace device without a court order under this subchapter to acquire foreign intelligence for a period not to exceed 15 days following a declaration of war by Congress." 50 U.S.C. § 1844. I don't know many details about the timing of the surveillance, but regardless of timing, the surveillance appears to have far exceeded the limited authorization in § 1844. The NY Times article suggests that the NSA may have engaged in wiretaps or other forms of electronic eavesdropping extending far beyond pen registers or trap and trace devices, which merely provide information about the phone numbers dialed.

Finally, FISA authorizes electronic surveillance more generally "for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. § 1811. The Administration faces several hurdles in using § 1811. First, it is debatable whether the Authorization to Use Military Force constitutes a declaration of war. For some thoughtful analysis about this, see Seth Weinberger's post. Second, it depends upon when the surveillance took place. If it was beyond the 15 day period, then the provision no longer applies. Anyway, President Bush has declared that he will continue the surveillance program "for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens."

Thus, it appears that the President brushed FISA aside. On what basis can the President ignore a statute specifically regulating executive power? I'm not an expert on the intricacies of the executive's military powers, so perhaps there's a justification. Thus far, however, the Bush Administration's "creative" interpretations of its legal authority to engage in surveillance, to detain enemy combatants, and to engage in torture seem to be just as "creative" as Bill Clinton's interpretation of what "sex" is.

Apparently, the President does have a legal rationale for his actions, but according to the NY Times article, it is classified. I believe that the President must give a full accounting of how he could believe in good faith this surveillance was within his powers under the law. And please, no more "creativity."

Related Posts:
1. Solove, President Bush, the National Security Agency, and Surveillance

Posted by Daniel Solove at 02:00 AM | Comments (8) | TrackBack

Hollywood and "Asians"

I used to live in South Korea; a fact, I think, that tends to make me a bit touchy about the linguistic, cultural, and -- yes -- physical differences between various Asian countries. People are fond of talking about things "Asian" without always realizing that there is a huge difference between say Thailand and Korea, or Japan and China. For example, linguistically Chinese has more in common with English than it does with Japanese or Korean. (Setting aside the vocabulary that both languages have borrowed from China.) Needless to say "Asians" also do not constitute a single ethnic group.

Which brings me to Memoirs of a Geisha, just released by Sony pictures. According to all of the reviews, it is a beautifully filmed movie. However, I can't help but notice that in this very Japanese story all of the lead actresses are Chinese. I don't think that there is any need to become some sort of fundamentalist about ethnic or national identities, but could you imagine Hollywood producing a movie about a group of Greek women and casting a trio of Norwegian actresses in the lead roles?

Posted by oman at 05:29 PM | Comments (20) | TrackBack

What Wikipedia Is (and Isn't)

In light of the recent discussions here of Wikipedia, I'd like to throw in my two cents on the subject.

I like Wikipedia. In fact, I like it a lot. In fact, I have gone so far as to do what Eugene Volokh warned against -- I've actually cited to Wikipedia. In fact, I cited to Wikipedia six times in a recently published law review article. (I'm not alone in this by any means--"wikipedia" gets over 200 hits on a Lexis search of law review articles, almost all of which are cites to entries.) In my case, I cited Wikipedia as a starting point for investigating personalities, such as John Mellencamp, Tom Clancy, and Marni Nixon. I'm aware that some of these entries contain certain inaccuracies, but I feel comfortable citing to them for reasons I'll explain below. In the alternative, I suppose I could have cited to nothing (not very helpful to the reader) or cited to books (realistically, though, how many people would follow up on those cites?). Also, I should admit that, in part, I cite to Wikipedia sometimes because I hope some readers might take a look at Wikipedia and appreciate it for what it is. However, I'm not trying to deceive people about what Wikipedia is--it is, more or less, the Web, repackaged and reformatted.

In fact, before I cited to Wikipedia, I cited, on rare occasions and for very similar reasons, to web searches on Google for a specific term. (Again, I'm not alone in this, though the numbers of people who did this were smaller.) As far as I'm concerned, citing to a Wikipedia entry for Marni Nixon and a Google search for Marni Nixon are very nearly the same thing. Both are invitations to the reader to enter what you might call a "muddy information portal," a messy and organic field of data that the citing author does not control, but feels would be helpful to the reader as a starting point for further research. Citing to something like that might be unorthodox, yes, but I don't think it is beyond the pale.

To my mind, the difference between citing Wikipedia and citing a Web search is just a matter of the target's format. When we search the Web, Google creates our "entry" on the fly with algorithms that prioritize popular and relevant websites. With Wikipedia, we have the dynamic of Web search somewhat inverted -- creators with data they consider relevant to specific terms offer up that data to Wikipedia under a shared hosting umbrella in a common format (and with a commitment to collaboration). Due to this, Wikipedia entries generally look nicer. But other than that, Wikipedia and the World Wide Web are very nearly the same thing. Wikipedia's openess, to both creation and revision, doesn't guarantee much accuracy.

Yet I personally find searching the Web's messy data for specific terms, if not a good way to find authoritative information reliably, an extremely helpful step in my process of research. I would never cite to Wikipedia as an authority in my field. (E.g. for a definition of the Patriot Act.) But for certain purposes, e.g., providing a basic introduction to celebrities, I think it is okay.

I'm aware that many people think there is a serious problem with Wikipedia, but I think that problem is about misconceptions of Wikipedia and perceptions of others' misconceptions. For instance, Professor Anita Ramasastry a few days ago suggested that Section 230 should be modified to remove Wikipedia, partially, from its scope. Her reasoning:

It presents itself as an online encyclopedia - which has the connotation of reliability (and, in the past, edited content). We'd be foolish not to take blog postings with a grain of salt - but what about an article that is characterized as an encyclopedia entry? Unsurprisingly, many people are relying on the content as if it were correct and using the site as a reference tool. College students often cite to Wikipedia in their research papers, for example. In addition, Wikipedia is very influential. It ranks very highly in the major search engines. This means that Wikipedia's potential for inflicting damage is amplified by several orders of magnitude.

So Professor Ramasastry obviously knows what Wikipedia is -- her concern is just that other people don't. I suppose my question back is, whose problem should we make this "connotation of reliability"? If students believe everything in Wikipedia is true, can't we just tell them it isn't?

In a way, the current fuss over Wikipedia is very reminiscent of conversations I heard ten years ago about websites. It seemed many people were at pains to warn the public (and particularly "students") that everything you saw on a website was not true. Clueless people were out there posting crazy things on websites, spewing misinformation. Now, it seems, we all have internalized that fact and moved on -- such articles still pop up now and then, but not nearly as frequently. And--surprise!--it seems we're all still using the Web and we all find it pretty useful--perhaps more useful now than ever, given the improvements in powers of search and the greater amounts of data we can sift through. Yet behavior that we now agree is foolish (e.g. not taking facts offered on a random website with a grain of salt) was once deemed a significant problem.

Perhaps we might be a little more confident? Just as we figured out what the Web is (and isn't), I wonder if we will somehow manage to figure what Wikipedia is (and isn't) -- pretty much the same thing.

Posted by Greg_Lastowka at 10:42 AM | Comments (10) | TrackBack

If Oedipus Tried Online Dating...

UPDATE: It appears that this story might indeed be dubious. It comes from a tabloid, Weekly World News. I thought it might be credible because it was coming from Yahoo! News, but now I don't think the story is credible -- or Yahoo! News for that matter.

This Yahoo! News story is so weird that it's hard to believe, but it is quite amusing:

Skirt-chasing playboy Daniel Anceneaux spent weeks talking with a sensual woman on the Internet before arranging a romantic rendezvous at a remote beach -- and discovering that his on-line sweetie of six months was his own mother!

"I walked out on that dark beach thinking I was going to hook up with the girl of my dreams," the rattled bachelor later admitted. "And there she was, wearing white shorts and a pink tank top, just like she'd said she would.

"But when I got close, she turned around -- and we both got the shock of our lives. I mean, I didn't know what to say. All I could think was, 'Oh my God! it's Mama!' "

But the worst was yet to come. Just as the mortified mother and son realized the error of their ways, a patrolman passed by and cited them for visiting a restricted beach after dark.

"Danny and I were so flustered, we blurted out the whole story to the cop," recalled matronly mom Nicole, 52. "The policeman wrote a report, a local TV station got hold of it -- and the next thing we knew, our picture and our story was all over the 6 o'clock news. "People started pointing and laughing at us on the street -- and they haven't stopped laughing since."

But there's more. Consider this:

When starry-eyed Daniel asked Sweet Juliette to send him a picture, Nicole e-mailed him a photo of a curvy, half-clad cutie she'd scanned from a men's magazine. . . .

Daniel admits he and his mother could do little but stammer and stutter around each other for days after their cyberspace exploits came to light. And his father Paul -- Nicole's husband of 27 years -- wasn't too happy when the story hit the news and his beer-drinking buddies made him the butt of their jokes.

"Dad was ticked for a while and he forbid Mom to talk to anybody on the Internet ever again," said embarrassed Daniel.

Well, if I were "Dad," I'd be a bit "ticked" too if my wife were arranging a secret rendezvous with some other guy on a beach -- let alone having things turn out in such a bizarre and public manner. And I'd try to put the story of Oedipus out of my mind.

Hat tip: Affairs of a Sordid World

Posted by Daniel Solove at 02:10 AM | Comments (9) | TrackBack

President Bush, the National Security Agency, and Surveillance

The New York Times has an in-depth story about how President Bush authorized the National Security Agency (NSA) to engage in surveillance after 9/11:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches."

Read the article. It is, in my view, quite startling. Here's another very troubling fact:

Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches. . . .

The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.

So, in other words, the President can secretly authorize secret domestic surveillance by an agency that typically conducts surveillance abroad . . . and do so based on a legal rationale that is secret. This is deeply troubling.

UPDATE: Orin Kerr has some interesting thoughts here.

UPDATE #2: Steve Vladeck's post at PrawfsBlawg is also worth reading. He writes:

I'm not sure what's scarier -- that the NSA has been listening, or that the Administration successfully convinced the Times to hold off on the story for an entire year?!? . . . [W]hen the government conducts a campaign of domestic, internal surveillance that seems lacking for both historical and legal precedent, is it really responsible journalism to not report on that campaign for an entire year?

Posted by Daniel Solove at 01:09 AM | Comments (0) | TrackBack

Alito and the ECMH

For more evidence of Judge Alito's strong support of the efficient capital market hypothesis, read this recently released Third Circuit opinion in the Merck & Co. Sec. Lit. that Alito joined (Ambro was the writing judge). The relevant discussion is on pages 15-20. The opinion follows Burlington and Oran, which (as I noted in the past) Alito did write. Obviously, this isn't as useful evidence of the Judge's views as his own work, but any product released in this highly sensitive period is surely something he gave a careful look at.

Merck interprets Oran and Burlington to mean that price movement must occur in the period "immediately following disclosure". Plaintiff had argued that the market failed to appreciate the nature of the disclosure at issue until the Wall Street Journal had added up some figures that revealed (allegedly) $4.6 billion in inflated revenue.
The court, conscious of its status as having one of the "clearest commitments" to the ECMH of the appellate courts, applied what I've called in my work the "understand consequences materiality technique"* and dismissed plaintiff's allegations out of hand. It noted that multiple analysts followed Merck, and queried:

"If these analysts-all focused on revenue-were unable for two months to make a handful of calculations, how can we presume an efficient market at all. [Plaintiff] is trying to have it both ways: the market understood all the good things that Merck said about its revenue but was not smart enough to understand the co-payment disclosure. An efficient market for good news is an efficient market for bad news."

This is an interesting claim. It might not actually be true - there is evidence that individuals are significantly more resistant to incorporating evidence of bad news than evidence that confirms the optimism they naturally feel, which suggests that it is possible that market irrationality, if it exists, may not go in both directions. But, on the other hand, Ambro's basic theory - that disclosure of underlying facts about a well-known stock followed by dozens of analysts should be curative - makes intuititve sense.
In any event, another data point suggesting that securities plaintiffs may not win lots of battles with (a Justice) Alito, but on the big, class-enabling, issue, he's solid.

(Hat Tip: Naturally, Howard B.)

Related Posts:

1. Hoffman, Alito and Securities Law: Part II;

2. Hoffman, Alito: The Business Friendly Justice?

*No, it wasn't my most catchy and inspired naming day.

Posted by hoffman at 11:53 PM | Comments (0) | TrackBack

Law Teaching Fellowships

Paul Caron at TaxProf has a very useful roundup of information about teaching fellowships for aspiring law professors.

Posted by Daniel Solove at 01:06 PM | Comments (0) | TrackBack

What If Copyright Law Were Strongly Enforced in the Blogosphere?

Suppose the mainstream media, fed up with the buzz bloggers keep getting and with bloggers criticizing their stories, decided to exact revenge. They initiate a vigorous copyright enforcement strategy, launching a barrage of lawsuits against bloggers as the Recording Industry Association of America (RIAA) has done to music file sharers. What would happen?

The blogosphere would be in for some tough times I bet. Bloggers frequently copy large chunks of mainstream media articles and some of us copy pictures we find on the Web. Bloggers don't have a team of photographers and artists, so they snag images from the Internet. As for mainstream media articles, bloggers often quote very liberally because the mainstream media is notorious for creating dead URLs -- articles often just disappear after a week or two. In other instances, articles get archived and can only be retrieved for a fee. The result is that a post discussing a mainstream media article with just a link or a small quote can become hard to understand when the article being referred to becomes unavailable. That's why bloggers often copy significant portions of articles -- so their posts can still be understood when the URLs to the articles go dead.

We bloggers have, to put it mildly, a very robust concept of fair use. Fair use of copyrighted material is a fuzzy concept, and judges use four factors to determine if a use is fair:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken
4. the effect of the use upon the potential market

A Stanford University Libraries copyight and fair use information website has a useful summary of some of the fair use case holdings. Just because a quote is small doesn't mean that it is fair use. Consider this case:

A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin's death. Important factors: The court felt that the portions taken were substantial and part of the "heart" of the film. Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc. , 672 F.2d 1095, 1100 (2d Cir. 1982)

Certainly not all cases are this radical, but that's the risk with fair use. It's a fuzzy doctrine, and many courts are sympathetic to copyright holders. What are the parts of a mainstream media article bloggers are copying? Probably the key parts -- the "heart" of them.

I think that it is a fair generalization to say that the use of copyrighted material is much more liberal in the blogosphere than in regular print publications. If I were writing something in print, for example, I would be much more cautious about the extent to which I’m quoting and using images. But I feel more emboldened on the Internet. Why?

The reason is that the blogosphere has developed a set of copyright norms in an area where there is very little enforcement. These norms about the use of copyrighted material are probably at odds with existing copyright law. The mainstream media and other websites have not been going after bloggers for copyright violations all that much. Although the music and movie industries have been on the copyright offensive, beyond them, the enforcement of copyright on the Internet has been rather laid back.

But this article from the WSJ strikes a bit of fear in my bones:

Bloggers, beware: That photo of Tom Cruise and Katie Holmes on your Web site could be fodder for a lawsuit. Stock photography companies like Getty Images Inc. and Corbis Corp. are using high-tech tools to crack down on Web site owners who try to use their photographs without paying for them.

While music and movie studios remain suspicious of the Internet, many stock photography companies have digitized their collections so that customers can easily access them online. At sites like GettyImages.com and Corbis.com, advertisers, publishers and others looking to license professional photographs can browse and purchase millions of high-quality images. In making it easy for customers to find pictures, though, the sites have also made it easier to swipe a copy of an image and post it on the Web.

I avoid taking images from such sites, but it is hard to know the true origins of any image found on the Web. It is often impossible to track down the copyright holder, as the image may appear on a blog or website without information about its origins.

I think that the development of looser copyright norms in the blogosphere is a wonderful thing. Blogging is already quite time-consuming; imagine having to seek permissions for lengthy excerpts or images. And copyright holders might charge fees for the use of their materials, making use cost-prohibitive. Of course, one could play it safe, with very cautious excerpts and no images except copyright-free ones. But this can make posts less complete, less interesting, less snazzy. Having to paraphrase rather than quote directly will take more time, and perhaps make bloggers more reluctant to dash off a post on a particular issue.

I fear that one day copyright enforcement rain on the blogosphere's parade if mainstream media entities and other mainstream websites see the blogosphere getting too profitable or powerful.

Will this inevitably happen? Will bloggers have to start studying the complexities of the fair use doctrine? Will mainstream media entities adopt an RIAA-style approach? One strategy could involve bringing suits and then offering to settle for a substantial sum, but much less than the cost of fighting the suit. Even if the fair use issue were debatable, it might make sense for the blogger just to settle rather than risk a loss in the case (and much greater damages) and go through the expense of litigating (let alone the extensive time and emotional toll that such litigation might take). A more vigorous copyright enforcement will certainly not kill the blogosphere, but it could change the way people blog. With blogging getting bigger and more profitable every day, will copyright suits become the wave of the future?

Posted by Daniel Solove at 11:53 AM | Comments (30) | TrackBack

The Contractual Freedom to Prohibit Football

This buzzworthy newstory about celebrity pre-nups has a few examples of bizarre clauses that couples have agreed to before marriage:
• "Limiting the wife's weight to 120 pounds or she must relinquish $100,000 of her separate property."
• "Requiring a husband to pay $10,000 each time he is rude to his wife's parents."
• "Mandatory sexual positions", "No mother-in-law sleepovers." "Only one football game per Sunday."
Attorneys quoted in the article suggest that all such provision are
"legal unless you're dealing with custody of children or child support." This might be right, but since these agreements are almost never evaluated in written opinions (the parties usually hired retired judges to ensure privacy) I'm not sure whether I'd be so definite. Of course it isn't my area of law, but I usually teach my contract class that there are limits - public policy and otherwise - to what you can contract to, even in the pre-nup context. The one that really gets me here, of course, is "one football game per Sunday." What kind of judge would enforce that kind of tyranny?

(Hat Tip: Huffington).

Posted by hoffman at 09:11 AM | Comments (1) | TrackBack

A Secret Defense Department Database of Protesters

From MSNBC:

A year ago, at a Quaker Meeting House in Lake Worth, Fla., a small group of activists met to plan a protest of military recruiting at local high schools. What they didn't know was that their meeting had come to the attention of the U.S. military.

A secret 400-page Defense Department document obtained by NBC News lists the Lake Worth meeting as a “threat” and one of more than 1,500 “suspicious incidents” across the country over a recent 10-month period. . . .

The Defense Department document is the first inside look at how the U.S. military has stepped up intelligence collection inside this country since 9/11, which now includes the monitoring of peaceful anti-war and counter-military recruitment groups. . . .

The DOD database obtained by NBC News includes nearly four dozen anti-war meetings or protests, including some that have taken place far from any military installation, post or recruitment center. One “incident” included in the database is a large anti-war protest at Hollywood and Vine in Los Angeles last March that included effigies of President Bush and anti-war protest banners. Another incident mentions a planned protest against military recruiters last December in Boston and a planned protest last April at McDonald’s National Salute to America’s Heroes — a military air and sea show in Fort Lauderdale, Fla.

The Fort Lauderdale protest was deemed not to be a credible threat and a column in the database concludes: “US group exercising constitutional rights.” Two-hundred and forty-three other incidents in the database were discounted because they had no connection to the Department of Defense — yet they all remained in the database. . . .

There are more interesting facts in this lengthy article, including this one:

Two years ago, the Defense Department directed a little known agency, Counterintelligence Field Activity, or CIFA, to establish and “maintain a domestic law enforcement database that includes information related to potential terrorist threats directed against the Department of Defense.” Then-Deputy Secretary of Defense Paul Wolfowitz also established a new reporting mechanism known as a TALON or Threat and Local Observation Notice report. TALONs now provide “non-validated domestic threat information” from military units throughout the United States that are collected and retained in a CIFA database. The reports include details on potential surveillance of military bases, stolen vehicles, bomb threats and planned anti-war protests. In the program’s first year, the agency received more than 5,000 TALON reports. The database obtained by NBC News is generated by Counterintelligence Field Activity.

CIFA is becoming the superpower of data mining within the U.S. national security community. Its “operational and analytical records” include “reports of investigation, collection reports, statements of individuals, affidavits, correspondence, and other documentation pertaining to investigative or analytical efforts” by the DOD and other U.S. government agencies to identify terrorist and other threats. Since March 2004, CIFA has awarded at least $33 million in contracts to corporate giants Lockheed Martin, Unisys Corporation, Computer Sciences Corporation and Northrop Grumman to develop databases that comb through classified and unclassified government data, commercial information and Internet chatter to help sniff out terrorists, saboteurs and spies.

One of the CIFA-funded database projects being developed by Northrop Grumman and dubbed “Person Search,” is designed “to provide comprehensive information about people of interest.” It will include the ability to search government as well as commercial databases. Another project, “The Insider Threat Initiative,” intends to “develop systems able to detect, mitigate and investigate insider threats,” as well as the ability to “identify and document normal and abnormal activities and ‘behaviors,’” according to the Computer Sciences Corp. contract. A separate CIFA contract with a small Virginia-based defense contractor seeks to develop methods “to track and monitor activities of suspect individuals.” . . . .

A short excerpt from the documents obtained by NBC news is available here.

Posted by Daniel Solove at 02:00 AM | Comments (4) | TrackBack

Wikipedia vs. Britannica

In a study by Nature, a science journal, expert reviewers found Wikipedia science entries to be not much less accurate than Encyclopaedia Britannica entries:

[A]n expert-led investigation carried out by Nature — the first to use peer review to compare Wikipedia and Britannica's coverage of science — suggests that such high-profile examples are the exception rather than the rule.

The exercise revealed numerous errors in both encyclopaedias, but among 42 entries tested, the difference in accuracy was not particularly great: the average science entry in Wikipedia contained around four inaccuracies; Britannica, about three.

Here's how the study was done:

In the study, entries were chosen from the websites of Wikipedia and Encyclopaedia Britannica on a broad range of scientific disciplines and sent to a relevant expert for peer review. Each reviewer examined the entry on a single subject from the two encyclopaedias; they were not told which article came from which encyclopaedia. A total of 42 usable reviews were returned out of 50 sent out, and were then examined by Nature's news team.

Only eight serious errors, such as misinterpretations of important concepts, were detected in the pairs of articles reviewed, four from each encyclopaedia. But reviewers also found many factual errors, omissions or misleading statements: 162 and 123 in Wikipedia and Britannica, respectively.

One could view the results as reflecting well on Wikipedia. One could also view them as as reflecting very badly on Britannica.

Hat tip: BoingBoing

Orin Kerr has some interesting reflections on Wikipedia here and here; and Eugene Volokh's thoughts on Wikipedia are also worth reading.

Related Posts
1. Solove, Wiki Art?
2. Solove, Wiki Thyself
3. Solove, Update on the Siegenthaler Wikipedia Defamation Case
4. Solove, Curtailing Anonymity on Wikipedia
5. Solove, Fake Biographies on Wikipedia
6. Solove, Suing Wikipedia
7. Solove, Wiki Your Papers?
8. Hoffman, Wex
9. Wenger, Wikimania

Posted by Daniel Solove at 12:03 AM | Comments (4) | TrackBack

enjoyed the visit

Since I've already overstayed my announced visit of a couple of weeks, I figure it's time to go before I wear out my welcome. It's been fun commenting on such diverse issues as images of property in landscape art, legal realism and fashion consulting, the Ann Coulter Talking Doll, 1950s and 2000s conservatism, the history of the book, state funding for preservation of cemeteries, and even a few unexpected topics--like suggestions for US News' ranking system, horror movie director Wes Craven's insights for law professors, the intellectual origins of Roe v. Wade in, of all places, Tuscaloosa, and Fanny and Ralph Ellison. Of course, nothing gets attention like navel-gazing, so I shouldn't be surprised that the post that generated the most attention (not much competition here, really) was on the implications of law review citations for law school rankings.

I'd hoped to comment a little on recent articles (like Kenneth Mack's brilliant article on "Civil Rights Lawyering and Politics Before Brown") and books in legal history, though my day job interfered with putting us as many posts as I'd hoped. So let me put in a brief mention for a wonderful book, which I recently read: Laura Kalman's Yale Law School and the Sixties.

If you're looking for a holiday present for a Yalie (or even a non-Yalie, like me, who's interested in legal education or recent legal thought), I highly recommend it. It's a beautifully written and engaging story of Yale students and faculty in the 1960s and early 1970s. But it's much more than a story about Yale--it's about changes in legal thought and in American society more generally in those important and troubled times. I love it and I suspect you will, too. Because I went to law school in the mid-1980s, when Yale was dominant in (particularly left-leaning) legal theory, I had assumed that it had been so for decades. I was familiar only a limited set of points of data regarding Yale's history. I knew Robert Cover's terrific volume, Justice Accused, which though I've read it a half-dozen times or so, continues to led me to me more insight on legal theory and legal history. Charles Black (who was then emeritus at Yale) was one of my teachers and everyone was still then talking about Charles Reich's New Property. So I had, until reading Laura's book, erroneously assumed that Yale had been a bastion of liberalism for a very long time. I must have thought that Robert Bork's presence on the faculty was an aberration. Anyway, Kalman's book is a great read and it's a great example of how a biography (of a school) can tell the story of an era. Makes me wonder, of course, how much the changes YLS went through relate to other schools. My own school, the University of Alabama, had a rather different history. I hope there will be some symposia dedicated to the book, where folks can talk about YLS's representativeness. And how other schools, which do not receive as much attention as YLS, contributed to changes in legal thought.

I've enjoyed my visit at concurringopinions and appreciate the hospitality of the crew here. And I've gained even more respect than I had before for the folks who blog on an on-going basis. I don't know how they do it!

Posted by Alfred_Brophy at 10:58 AM | Comments (3) | TrackBack

Blogging and the Road Ahead: What Next?

Blogging is still in its developmental stage. Several of us here at Concurring Opinions have been thinking about ideas to try out in the future. We want to make this the most interesting blog it can be. Are there any nifty things we should be trying out?

At a very general level, I believe that most blogs have one or more of the following elements:

1. Content -- providing information and opinion.

2. Links-- providing links to interesting stuff on the Internet; serving as a useful filter and resource for locating material to read.

3. Community -- developing a community; fostering extensive discussion among readers.

Many blogs combine all of these elements, but each blog has a different balance between them. How is our balance here at Concurring Opinions?

Blogging is an experimental and dynamic medium of communication. It is also interactive. So that’s why we're posing these questions to you. What do you recommend for the future of Concurring Opinions? Are there possibilities we should be exploring? And more generally, are there possibilities in blogging that aren’t being explored sufficiently in the blogosphere?

Related Posts:
1. Solove, Blog Posts: Conversation or Publication?

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

The Atticus Challenge

One of the joys of private practice is that I get constantly peppered with mail from the local bar associations asking me to join this or that group or threatening me with dire professional consequences if I don't get my CLE all done on time. A recent flyer from the Virginia Bar Association, however, has risen to a new level of non-sequitor advertising in professional junk mail. This is what the front page of the flyer says, word for word:

The Atticus Challenge

Did you know that...

Atticus Finch of To Kill a Mockingbird is the most famous movie hero of all time?

Why?

Because he is the paradigm gentleman, father, citizen, public servant and lawyer

"Stand up Miss Jean Louise, your father's passin."

Every lawyer should be so respect as to have something like that said about him or her.

What would Atticus do?

Atticus would be a member of the Virginia Bar Association and challenge all Virginia lawyers to give of their time and talent to volunteer bar services -- because it is our duty and our heritage.

Answer Atticus' Challenge

Become a lifelong and active member of the Virginia Bar Association and encourage at least one other lawyer to join.

I am not quite sure where to begin or what to say, other than "What the @#$$%?!" To be sure Atticus was a laudable hero (in a book before a movie, by the way), and I am sure that lawyers would do well to strive to emulate his better points. I am at a loss, however, to see what that has to do with becoming a member of the Virginia Bar Association (which is different, by the way, from the Virginia State Bar, the licensing authority for attorneys in the Commonwealth). As I recall Atticus' great virtues lay in his honest and willingness to represent an unpopular client who was falsely accused. He stood up against racial bigotry, spoke truth to power, and seems to have been a good daddy to Scout into the bargain. I don't recall, however, the part of the story where he proudly joined one of the state's lawyer clubs...

Posted by oman at 08:18 PM | Comments (6) | TrackBack

The Jurisprudence of Courthouses

I have a theory about English and American courthouse architecture, which is interesting but probably wrong. I start out by noting that the most prestigious courthouse in the United States -- the U.S. Supreme Court building -- is a quintessential example of classical architecture, self-consciously modeled on the buildings of ancient Rome. The classical model, of course, has been hugely influential in American civic architecture. In contrast, the most prestigious courthouse in the United Kingdom -- the Royal Courts of Justice in London -- is a sterling example of neo-gothic architectures, self-consciously modeled on the buildings of the Middle Ages. The neo-gothic model, of course, has been very important for English civic architecture, most notably perhaps in the Houses of Parliament. Why did Americans go for Rome and Englishmen for the medieval?

There are lots of possible answers: America is a republic, and hence Republican Rome is a natural source of inspiration, while England is a monarchy whose legitimacy rests of long-established practice. The French Revolution is another possibility. Having spent twenty or so years fighting first Revolutionary France and then Bonaparte, nineteenth-century Englishmen were disposed to think of neo-classicism as a precursor to chaos, war, and tyranny. Revolutionary iconoclasts smashed the sculpture of St. Denise, self-consciously desecrating the medieval symbolism of the French state. The English responded by valorizing their medieval roots. Hence the Royal Courts of Justice. Let me suggest, however, that there is also a jurisprudential angle.

The defining theorists of the English common law tradition were Coke, Hale, and Selden. All of them were historians of one sort or another, and all of them located the well-springs of legal legitimacy and English liberty in the immemorial customs and laws of the realm. Tellingly, one of Coke's greatest works -- Commentaries on Littleton -- is not a treatise at all, but rather an exposition of a medieval law book of feudal tenures. In a sense, the Royal Courts of Justice are the architectural instantiation of this legal world view. The neo-gothic courthouse is not simply an exercise in nineteenth-century Romanticism, or English Francophobia. It is Coke's artificial reason of the law incarnated in brick and mortar.

American jurisprudence, in contrast, is less obsessed with history and much more friendly to notions of natural law. The primal document of English law is the Magna Charta, shaky deal struck between barons and a hated king over the intricacies of knights service and fishing rights on the Thames, transformed by centuries of veneration into a fount for the historic rights of Britons. In contrast, the primal document of American law is the Declaration of Independence, which invokes abstract and self-evident rights that come not from history and custom but direct from nature and nature's God. On this view, the classicism of the Supreme Court building is less about invoking an ancient republican ideal than it is about the negation of history. What we see in marble before us is not the rebirth of the republic on the Tiber, but that abstract forms of inalienable rights. It is less Roman than Platonic.

Posted by oman at 12:36 PM | Comments (6) | TrackBack

Welcome to the Blogosphere

To Joel Jacobson, and his new blog "Judging Crimes." Jacobson, an assistant attorney general in New Mexico, has a number of great posts up already, including this empirical investigation into deterrence and the Fourth Amendment. Here is a taste:

The Supreme Court has repeatedly told us that the suppression of evidence deters wrongdoing by police. Lower court judges accept this as fact for a very good reason: the Supreme Court says so. But the rest of us can be little more skeptical. Using the sabermetric principle that if a phenomenon exists, it must inevitably show up in the statistics, I looked for evidence that the judiciary's fourth amendment jurisprudence has had a deterrent effect.
My working hypothesis was that if the exclusionary rule has any overall tendency to deter police from making unconstitutional searches and seizures, the number of cases in which the legality of a search/seizure was challenged should have peaked relatively soon after 1961 and then gone into a steady decline. As more and more officers were deterred, it seems reasonable to suppose, ever-fewer would still need deterring.

Posted by hoffman at 11:49 AM | Comments (2) | TrackBack

Monument Law

Ah, public monuments. They're how we remember important events and help define who we think we are. Dan Solove's recent posts on courthouses reminds me of how much we're concerned with presenting the right image to communities. And there's been a lot of writing about the function that courthouse architecture has served in American history. Moreover, lots of folks are writing these days about monuments and their meaning. Sanford Levinson's charming book, Written in Stone covers a lot of ground in a little bit of space. And people are talking more about removing monuments from parks or renaming them (such as the Nathan Bedford Forrest Park in Memphis). Sewanee: The University of South is going through something like this right now.

I haven’t seen any serious commentary (in the blogosphere or elsewhere) on the United Daughters of the Confederacy v. Vanderbilt University, decided last May by the Tennessee Court of Appeals. Perhaps, though, it warrants a little bit of attention. It has some things to say about long-term contracts, the right of donees to alter monuments (like changing the names of buildings), and even how we remember the Civil War. The case arose from the effort of Vanderbilt University in 2002 to rename a dormitory on its campus from “Confederate Memorial Hall” to “Memorial Hall.

According to the court of appeals' opinion, Chancellor Gordon Gee began efforts to change the name when he arrived at the University in the summer of 2002. People on campus had been talking about renaming the building for some years; some thought it was appropirate. Not surprisingly, others did not. Now, name changes are incredibly controversial, and I have mixed feelings about them. There’s something to be said for keeping names up because we want to honor folks who contributed money or whose accomplishments deserve honor. Even in the case those who engaged in what some might now think of as rather reprehensible conduct, we might still want to continue to honor, because of other contributions they made. And because a name on a building is part of a tradition. On the other hand, names convey messages to folks; and sometimes those messages are unfriendly, even if not everyone sees them as unfriendly.

Chancellor Gee's plans included changing the name of "Confederate Memorial Hall" on campus maps and on the front of the building to "Memorial Hall." The United Daughters of the Confederacy (UDC) sued to prevent the change. The factual background is, well, a little complex. The UDC contributed $50,000 towards the building cost in the 1930s. But the history goes back to the 1910s, when the UDC was instrumental in building monuments and putting up plaques to the Confederate dead. The UDC's history is well worth a read.

In the 1910s, the UDC began talking with Peabody College about providing funding for a dormitory. There were contracts (in 1913 and 1927), which together called for the UDC to provide $50,000 to build a dormitory. In return, Peabody would call the building "Confederate Memorial Hall" and allow the UDC to nominate young women who were descended from Confederate veterans to live rent-free in the building.

The UDC had trouble raising money. Then in 1933 there was a new contract drafted (which ratified the previous two), calling for $50,000 from the UDC and the rest of the money from the National Recovery Administration, a New Deal Agency. It provided that the agreement was void if the NRA didn't provide funding. Turns out, that contract was never signed (that we can tell) and Peabody ended up getting funding from a bond they floated when the NRA said they wouldn't provide money to a private school. Peabody went ahead and built the dormitory, named it "Confederate Memorial Hall" and housed young women nominated by the UDC free of charge.

Then, in 1979 Peabody, skirting the rim of bankruptcy, was acquired by Vanderbilt. As part of the acquisition agreement, Vanderbilt agreed to accept all liabilities of Peabody. But after 1979, they no longer accepted any new nominations from the UDC to house young women rent-free in Confederate Memorial Hall.

The Tennessee Chancellor found (p. 10 of majority) that it was "impracticable and unduly burdensome for Vanderbilt to continue to perform that part of the contract pertaining to the maintenance of the name 'Confederate' on the building and at the same time pursue its academic purpose of obtaining a racially diverse faculty and student body." The UDC appealed.

Now watch these moves by the Judge William C. Koch for the majority of the Tennesee Court of Appeals, because I think they're pretty interesting.

First, the court (following the Chancellor) reads a contract into the parties' course of dealings. That is, even though the 1933 contract was never signed (and even if it had been, the NRA never provided funding), the court found that there was a contract through Peabody's acceptance of the $50,000, through the naming of "Confederate Memorial Hall," and through their acceptance of women to live in the the hall.

Second (see especially note 13), it found the contract was divisible between the UDC's right to nominate women to live rent-free and the name of the Hall. If those rights weren't divisible, then the statute of limitations would have run on the UDC's right to enforce the contract in the early 1980s. Not surprising here. But that leads to a strange result when , third, the court awards damages on the entire $50,000. That is, while the contract was divisible into parts for purposes of statute of limitations, it was not divisible for purposes of damages.

There is a lot more than one might say about the majority opinion. One of them is: it converted the Chancellor's interpretation of the contract as creating a charitable trust, which is subject to cy pres or other equitable modification, into a straight-out gift, which was not subject to such equitable modifications. My friend John Eason has a very good article on this, which was cited by the majority. The opinion's also interesting to me from a property perspective. The majority requires that the name continue as long as the building stands--which sounds a lot like an equitable servitude to me. (Vanderbilt must maintain the name "Confederate Memorial Hall" on the building.) Sounds like a nearly perpetual servitude to me. As I say, there's a lot in this rich opinion. I bet the case will be a staple of contracts (and maybe trusts) classes in the future.

But what is perhaps even more interesting to me (as a legal historian) is Judge William B. Cain's concurrence. For those of us interested in judges' thinking, the concurrence opens a window on the thought of Judge William Cain. It which consists in large part of a quotation from the memoirs of Union General Joshua Lawrence Chamberlain. Chamberlain is an important figure; he fought and was wounded at Gettysburg. Chamberlain accepted the surrender at Appamatox.

Before the War, he was a moral philosophy professor at Bowdoin College in Maine. (Moral philosophy professors were important in the years before the war. Stonewall Jackson taught moral philosophy at VMI, for instance. Moral philosophy was a class in applied ethics. I think we can understand much about antebellum judging by looking to moral philosophy texts, not because the lessons students learned in college controlled their behavior later, but because the texts give us an understanding of how people at the time thought. There's some fine work on moral philosophy recently, including Mark Bailey's Guardians of the Moral Order and Peter Carmichael's The Last Generation. Francis Wayland, who was president of Brown University before the Civil War, wrote an important moral philosophy treatise, which is quite helpful in understanding antebellum thinking about the rule of law and things like the right (or non-right) to disobey the fugitive slave act of 1850. But now we're getting rather far afield from the issue at hand.). My friend Jeremiah Goulka has recently published a book on Chamberlain.

Anyway, about the time of the fiftieth anniversary of Gettsyburg, as folks North and South were struggling with the memory of the war and with reunion, he published his memoirs. Judge Cain quotes Chamberlain's text, which honored the soldiers on both North and South:

Before us in proud humiliation stood the embodiment of manhood: men whom neither toils and sufferings, nor the fact of death, nor disaster, nor hopelessness could bend from their resolve; standing before us now, thin, worn, and famished, but erect, and with eyes looking level into ours, waking memories that bound us together as no other bond;--was not such manhood to be welcomed back into a Union so tested and assured? Instructions had been given; and when the head of each division column comes opposite our group, our bugle sounds the signal and instantly our whole line from right to left, regiment by regiment in succession, gives the soldier's salutation, from the "order arms" to the old "carry"--the marching salute. Gordon at the head of the column, riding with heavy spirit and downcast face, catches the sound of shifting arms, looks up, and, taking the meaning, wheels superbly, making with himself and his horse one uplifted figure, with profound salutation as he drops the point of his sword to the boot toe; then facing to his own command, gives word for his successive brigades to pass us with the same position of the manual,--honor answering honor. On our part not a sound of trumpet more, nor roll of drum; not a cheer, nor word nor whisper of vain-glorying, nor motion of man standing again at the order, but an awed stillness rather, and breath-holding, as if it were the passing of the dead! . . .

What is this but the remnant of Mahones Division, last seen by us at the North Anna? its thinned ranks of worn, bright-eyed men recalling scenes of costly valor and ever-remembered history.
Now the sad great pageant--Longstreet and his men! What shall we give them for greeting that has not already been spoken in volleys of thunder and written in lines of fire on all the riverbanks of Virginia? Shall we go back to Gaines Mill and Malvern Hill? Or to the Antietam of Maryland, or Gettysburg of Pennsylvania?--deepest graven of all. For here is what remains of Kershaws Division, which left 40 per cent. of its men at Antietam, and at Gettysburg with Barksdales and Semmes Brigades tore through the Peach Orchard, rolling up the right of our gallant Third Corps, sweeping over the proud batteries of Massachusetts--Bigelow and Philips,--where under the smoke we saw the earth brown and blue with prostrate bodies of horses and men, and the tongues of overturned cannon and caissons pointing grim and stark in the air. . . .

Then in the Wilderness, at Spottsylvania and thereafter, Kershaws Divison again, in deeds of awful glory, held their name and fame, until fate met them at Sailors Creek, where Kershaw himself, and Ewell, and so many more, gave up their arms and hopes,--all, indeed, but manhoods honor. . . .

Ah, is this Picketts Divison?--this little group left of those who on the lurid last day of Gettysburg breasted level cross-fire and thunderbolts of storm, to be strewn back drifting wrecks, where after that awful, futile, pitiful charge we buried them in graves a furlong wide, with names unknown! Met again in the terrible cyclone-sweep over the breast-works at Five Forks; met now, so thin, so pale, purged of the mortal,--as if knowing pain or joy no more. How could we help falling on our knees, all of us together, and praying God to pity and forgive us all!

Joshua Lawrence Chamberlain, The Passing of the Armies 260-62 (Stan Clark Military Books 1994) (1915).

What's significant to me is the way that Chamberlain's thoughts appear again, nearly one hundred years later, in a judicial opinion. They are a reminder of how north and south reconciled after the war and the meaning of the monuments to the Confederacy to many. As the concurrance later observed,

It is to the memory of these men that Confederate Memorial Hall was built and, to that end and at great personal sacrifice in the midst of the Great Depression, that the United Daughters of the Confederacy raised and contributed to Peabody College more than one-third of the total cost of the construction of the dormitory.

Posted by Alfred_Brophy at 11:10 AM | Comments (4)

The Power of Shopping

With the holidays upon us, I figured that now would be a good time to do a post on shopping and its importance for contract theory. As everyone who survived a first year contracts course can tell you, one of the central problems for contract law is what has been variously labeled as boilerplate, contracts of adhesion, and fine print. What we are talking about here are all of those contracts that one is offered on a take-it or leave-it basis that no one ever reads. In true late-New-Deal-lets-find-a- new-frontier-for-saying-o h-my-heck- the-corporations- are- taking-over-the-world-FDR-come-and- save-us fashion Friedrich Kessler wrote an influential article ("Contracts of Adhesion -- Some Thoughts About Freedom of Contract," 43 Colum. L. Rev. 629 (1942)) arguing that boiler plate represented a form of private law making that corporations imposed on helpless consumers. Such private law making, he argued, was illegitimate in a democratic society, where law making ought to be democratically accountable (or at the very least accountable to the FTC). Shopping, however, leaves me somewhat doubtful about Kessler's claim.

It seems to me that what motivates Kessler's concern is a particular view of what constitutes a legitimate contract. What he clearly has in mind is a deal where both parties dicker over all of the terms of the agreement. In other words, he sees bargaining as the sine qua non of legitimate contracts, and the absence of bargaining as being ipso facto suspect. Res ipsa loquitor. What Kessler does not appreciate, however, is that shopping can act as a substitute for bargaining.

I never dicker with my supermarket over the price of milk. Yet this hardly means that I am powerless before the supermarket and that it can impose whatever price and terms it wishes to on helpless me. The fact that there are four or five supermarkets more or less equidistant from my house keeps them in line. If Safeway gouges me for milk or acts like a jerk when I try to return a sour jug of egg nog, I will take my business down the road, and Safeway knows it. It keeps prices reasonable, and makes them reasonably polite and easy to work with.

On the whole, I find the holidays stressful and annoying. I am a practicing Mormon, and I find the uber-commercialization of Christmas religiously distasteful. I hate flying in December, and I still do it every year. One nice thing about the holiday shopping orgy, however, is that it makes me feel powerful. Everywhere I go, I see one huge corporation after another groveling -- literally -- for my business. They know that I have options, and this fact gives me courage when I go to the Target exchange desk. Compared with the power that I have as a shopper, I feel basically helpless in the face of the government. The "customer service" desk at the Virginia Department of Motor Vehicles sucks compared to Target (and Target isn't all that good). They feel no anxiety about my ability to take my business elsewhere.

In short, Kessler -- in my view -- was mistaken (or at least partially mistaken) for seeing my take-it or leave-it contract with a corporation as evidence of powerlessness and the FTC as a reflection of my power. I do not feel that my ability to cast a vote in an election gives me any real influence over the government. On the other hand, when I opened the Washington Post on Sunday and saw the mountains of advertising, I felt a surge of control and power. Why? Because I am a shopper, and the Fortune 500 tremble before me!

Posted by oman at 11:01 AM | Comments (15) | TrackBack

Blog Post Piracy

Steve Rubel of Micro Persuasion writes:

Two weblogs are republishing my content without permission. One is called “Advertising, News & Information.” This site is profiting off my content by running Adsense. The other is called Podcast Rebroadcast.

This appears to be a common problem. Jason Calacanis wrote in June that we should call these people out. I am doing my part. Beyond going to partial text RSS feeds - which I am loathe to do - I have really no other course of action right now other to email the site operators, which I have done.

There is, of course, copyright law. The creative commons license for Rubel's blog states that the work must be attributed to its author and it cannot be used for commercial purposes. The pirated post doesn't contain his name on the post or the name of his blog, but it does at least have a link to the original post on Rubel's blog. Is this sufficient enough attribution? As for commercial purposes, the blog copying Rubel's posts is displaying Google