Archive for January, 2006
Why Enron Still Matters
posted by Dave Hoffman
Matt Bodie has a provocative post up on Prawfs titled “The Enron Trial: Reasons Not to Watch“. Explaining that he doesn’t find the trial all that interesting, Matt argues that Enron is an overexposed story, Skilling and Lay aren’t the real “bad guys”, and the jury is likely to decide the case on factors other than the underlying factual guilt. The first objection is fair (my colleague Jonathan Lipson has pointed out that ““[t]he Enron case has already spawned a cottage industry among legal academics.” ). However, Matt and I part ways on his second and third objections.
Matt argues that :
Like many criminal conspiracies, the worst offenders have pled, leaving trials for those who have the best case for innocence. Lay and Skilling may or may not have really known what was going on. Sure, even not knowing is bad, given their positions of authority. And creating a culture of noncompliance is also wrong.
I’d guess that the reason Skilling and Lay have not pled and Fastow has is demographics. Fastow is a young(ish) man, who can serve significant time and still emerge with earning power. Lay and Skilling don’t have the years left to do the time that the government (apparently) would find appropriate. But more importantly, take a look at the indictment. I think it is right to be hesitant about conflating all crime with evil, but I don’t know why Lay and Skilling should be described as merely knowingly lazy at the helm. The government is charging, rather, that they personally profited from a conspiracy that they designed. The purpose of that conspiracy was to defraud thousands of investors. (Yes, I recognize that this is all contested and contestable, and you can make this a story about criminalizing agency costs. Moreover, as Larry Ribstein has observed, “the moral force of the criminal law should be reserved for the cases that deserve it.” But I think that the case is going to turn on the perceived truthfulness of the defendants on the stand, which by all accounts is a core jury competency.) Fastow, by contrast, self-dealt to the company’s detriment: a crime whose impact on the securities markets was more indirect, although ultimately catastrophic. In any event, if Skilling and Lay are guilty of the knowledge and purpose charged by the indictment, they are evil. Maybe less evil than, say, murderers, but that is a distinction I leave for other folks to make.
As for the jury point, I agree that this trial may not be resolved based on an application of cold logic to clear facts – but I don’t think that the morality play we’re seeing in Houston is noticeably different in that dimension from any other criminal trial. Criminal adjudications create norms for relevant potential offender communities – - here corporate CEOs – - and it is that process of norm creation that drives my interest in the story.
Plus, just check out the stories the attorneys told today. On one side, we’ve got the prosecution, spinning the jury a familiar tale about greedy, lying executives. In my view, they’ve got the worse of the case on the facts, which is why I’m with Gordon and Christine in betting on a partial or full acquittal. On the other side, the defense has to rehabilitate not just their clients but a corporate law system that may diverge from ordinary intuitions about responsibility:
‘Ken Lay has, does and will continue to accept responsibility for the bankruptcy of Enron. He was the man in control … But failure is not a crime. Bankruptcy is not a crime. If it were we’d have to turn Oklahoma back into a penal colony because there would be so many people we’d have to lock up,” Lay’s lawyer Mike Ramsey told the jury this afternoon.
I understand Matt’s Enron-overload. But I guess I’m not there yet. I can’t wait for tomorrow!
January 31, 2006 at 11:00 pm
Posted in: Corporate Law
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Congress takes action on Wikipedia abuse . . .
posted by Kaimipono D. Wenger
. . . but not the kind of action you might be thinking. A law against Wikipedia abuse? An investigation? A blue-ribbon panel? Nope — our fearless political leaders have decided to take up the rallying cry “if you can’t beat ‘em, join ‘em.” Declan McCullagh has the story (via my sharp-eyed, non-Wikipedia-abusing colleague Deven Desai):
The trusty editors at Wikipedia got together and compiled a list of over 1,000 edits made by Internet addresses allocated to the U.S. Senate and House of Representatives. The IP address subsequently was blocked and unblocked.
An extensive analysis reveals how juvenile official Washington secretly is, behind the mind-numbingly serious talk of public policy.
One edit listed White House press secretary Scott McClellan under the entry for “douche.” Another said of Sen. Tom Coburn, R-Oklahoma) that: “Coburn was voted the most annoying Senator by his peers in Congress. This was due to Senator Coburn being a huge douche-bag.”
It boggles the mind to think that Congress is abusing Wikipedia. I mean, if we can’t trust Congress, and we can’t trust Wikipedia . . . my goodness — who can we trust?
January 31, 2006 at 5:59 pm
Posted in: Technology, Wiki
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Identity Theft: Increasingly an Affliction of the Young
posted by Daniel Solove
New statistics from the FTC on identity theft illustrate some interesting trends. From the AP:
Identity thieves are increasingly targeting children. Identity theft complaints involving youngsters under 18 have nearly doubled since 2003, up from 6,512 to more than 11,600 last year, the Federal Trade Commission said Wednesday.
While they make up a small percentage — about 5 percent — of the total ID theft complaints, the FTC’s Jay Miller says young people are attractive to cons because they may not be as savvy about safeguarding personal information and could easily fall prey while surfing the Internet. . . .
January 31, 2006 at 1:32 am
Posted in: Privacy, Privacy (ID Theft)
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Liveblogging the Enron Trial
posted by Dave Hoffman
Via Christine Hurt, I found the Houston Chronicle’s weblog of the Lay/Skilling trial. The first day, for a certain type of person (read: corporate law nerd) was a must-read. My favorite part was the human touch from Judge Lake at the end:
The judge extensively warned the jurors not to talk to friends and family about the case and warned that media reports are not evidence.He said they will be supplied muffins for breakfast; he noted that the banana nut go fast and the medicinal-tasting cranberry never get eaten.
First thought: so supply and demand are out of whack? Sounds like the opportunity for a little creative trading to me! Second thought: tomorrow, the prosection and defense jointly fund a trip to starbucks for sixteen blueberry muffins. Not the non-fat version, the ones that make the next five trips to the gym dead weight loss.
January 30, 2006 at 11:31 pm
Posted in: Corporate Law
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“Religious Arguments in the Law” or “Reasoning in God’s Presence”
posted by Nate Oman
Vic Fleischer had a really interesting post on religion and tax policy over at a
There is no question that one needs a theory of distributive justice to form a complete picture of tax policy. Some people may derive that theory from religious faith, others from philosophy. I have no problem with those who derive their preferences from religious faith. As a matter of scholarly discourse, I find it more useful to concentrate on the philosophy side. And even within philosophy, convincing others that one approach is better than another feels to me like trying to convert someone to another faith. As a tax policy scholar, I have no comparative advantage here.
Implicitly I’m arguing that traditional tools of tax policy, including public finance economics, can sometimes lead us to demonstrably right and wrong answers about the design of a tax system. I am a skeptic about the ability of law professors to convince anyone that the top marginal rate should be 35% by appealing to Rawls OR the Bible. But I do I have a lot of faith, so to speak, in tax law scholarship and economics to speak to the proper design of the system.
There is a lot of stuff going on in these sentences. First, Vic’s argument seems a bit confused about the nature of normative reasoning. In good economic fashion, he seems to be suggesting that theories of distributive justice are a kind of preference. (E.g. “I have no problem with those who derive their preferences from religious faith.”) This, it seems to me, is fundamentally mistaken. Kaplow and Shavell aggressively pursued this line of thinking in Fairness versus Welfare, and I think that when they stray from positive economic analysis into the realm of normative argument their results are a rather dismal failure. (In my opinion, Jules Coleman offers the most trenchant criticisms in his review The Grounds of Welfare, 112 Yale. L. J. 1511 (2003)). Their failure, however, does not come because normative argument is useless, but rather because they made bad normative arguments. In a nutshell, the problem with their approach is that distributive justice is not simply an input into a personal utility function. It is also a claim about the nature of moral reality, and as such it has a truth value independent of whether or not any particular person prefers it or not.
January 30, 2006 at 11:04 am
Posted in: Religion
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Gun Buffs And Fourth Amendment Lovers Unite!
posted by Dan Filler
Why haven’t two groups who adore individual rights come together? I would expect gun rights advocates (we’ll call them the NRA as shorthand) and privacy advocates (let’s name them the ACLU) to agree that government intrusions into personal and family space are bad. For some reason, the NRA has not bought into the Fourth Amendment part of this agenda. At the same time, I’d think the ACLU would benefit – politically, at least – by bringing the NRA into its civil liberties tent. And nothing about the gun rights agenda seems antithetical to the goals of the ACLU.
I can think of a few reasons why the NRA hasn’t joined the privacy bandwagon. First, NRA members/gun lovers may see themselves as “anti-crime” and they may see a weak Fourth Amendment as good anti-crime policy. This makes sense as long as they don’t imagine gun ownership as a crime. Second, the NRA may not like the public relations consequences of supporting privacy rights. Most of today’s Fourth Amendment cases involve the privacy rights of drug dealers and other unpopular characters. The NRA may not want to align itself with these miscreants, even on legal issues. Too many people already connect guns with crime.
I think the best explanation of all is that NRA members believe they’ll never need these protections – an assumption that is based on what I’d term a Second Amendment strategy. I suspect that the NRA believes legislatures won’t ban guns and, in any case, courts will strike such laws under the Second Amendment. There are two problems with this analysis. First, it is far from certain that courts will enforce a personal right to possess any and all firearms. There is little judicial support for this broad Second Amendment view, though some commentators have certainly made the case. Second, it is quite plausible that some jurisdictions – particularly states with substantially urban populations – will eventually prohibit entire classes of guns. And as Americans become more and more comfortable with governmental intrusions, generally, regulation of guns may become much more imaginable. At that point, gun owners could find great utility in the Fourth Amendment.
January 30, 2006 at 1:22 am
Posted in: Criminal Procedure
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The ChoicePoint Settlement
posted by Daniel Solove
Recently, the FTC announced a settlement in its complaint against the data broker ChoicePoint for a data security breach that resulted in over 160,000 people’s personal information being sold to identity thieves. According to the Washington Post:
Data broker ChoicePoint Inc. yesterday agreed to pay a $10 million federal fine over security breaches that exposed more than 160,000 people to possible identity theft. Privacy experts praised the settlement as a warning to companies to get more serious about protecting sensitive information.
The Alpharetta, Ga.-based company, one of the nation’s largest buyers and sellers of personal information such as Social Security numbers, birth dates and addresses, also agreed to pay $5 million into a fund to compensate people who suffered as a result of the breaches.
The Federal Trade Commission, which said the fine was the largest civil penalty it had ever imposed, said ChoicePoint violated consumers’ privacy and breaking federal laws by mishandling the information and misleading people about its privacy policy.
The FTC complaint is here. There are some important issues worth discussing in connection with the news of the settlement.
January 30, 2006 at 12:42 am
Posted in: Privacy, Privacy (Consumer Privacy), Privacy (ID Theft)
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On Admitting Mistakes
posted by Mike Dimino
This story is bizarre, but the predictable combination of arrogance and an official attitude that correcting errors leads to unacceptable disrespect. Apparently a basketball coach collapsed due to a heart condition during a game. A referee thought he was reacting to a foul called against his team and assessed a technical foul. Even as the coach was removed from the court by medical personnel, however, the referees refused to rescind the call. Thanks to the Sports Law Blog for the tip.
I’ve made some blunders in officiating, and I much prefer it if my partner(s) can help me correct an error than forcing me to defend a mistake to a coach. Nevertheless, I can sympathize with the referees here — not because I think their actions were reasonable. Quite the contrary — the actions were unreasonable and they deserve punishment. But some officiating clinics teach that the general practice is to admit mistakes but not go back on a call that is made. (I have no knowledge about basketball clinics or Conference USA policy on this matter, though.) One instructor at a hockey clinic, for example, told me and the rest of the students of an occasion where he prematurely signaled a delayed tripping penalty . . . and the fouled player never went down, meaning that the penalty did not in fact occur. He called the penalty anyway, and apologized as he was doing it. In his mind there was nothing else he could do. The possibility that he would reverse the call was out of the question.
I do not understand the rationale for that sort of approach. In discussing stare decisis in class, we constantly ask whether it is better for courts to leave decided cases undisturbed or for them to correct past errors. But isn’t the worst approach of all — in judging and in officiating — to admit error and say “too bad”? Most sports, I think, are coming around to the notion that it is better to get the call right than to pretend that the officials always got it right the first time. So we see more conferences in baseball and football, it seems, than there used to be. Perhaps without instant replay sports officials would feel less pressure to confer and get calls right.
January 28, 2006 at 12:27 am
Posted in: Weird
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Injustice in Michigan
posted by Dave Hoffman
Via Howard B., I read this report on a recent case before Michigan state trial court Judge Michael Martone. According the article, back in May ’05, high school teens were caught drinking at their prom. The school sanctioned them, but they were also sent to Judge Martone on charges of being a minor in possession of alcohol (a misdemeanor). Judge Martone apparently said from the bench (as the students were leaving, perhaps?): “There’s to be no alcohol [in the future.]”
Needless to say, the students went to college, drank, and classically, posted photos of themselves drunk on the web. The pictures were captioned, and some of the captions slurred Martone.
Judge Martone self-googled and found the page. I can’t seem to, which suggests something about our respective googling skills. “”They made a mockery of the legal system,” he said. “I had to do something.” He reported the students to their probation officers and the police, and had the students arrested for contempt of court. The charge: “disobeying [Martone's] direct order not to consume alcohol.” The article tells us what happened next.
Martone began questioning [the student who created the internet page about it], why she created it, and what some of its symbols and profane words meant.In an exchange of about 45 minutes, Martone reminded her to be honest, as [she] first evaded some questions [she was pro se], then admitted that her Web site did use profanity aimed at Martone, and that she had a drinking problem.
He sentenced her to 30 days in the Oakland County Jail. She was marched off in handcuffs, to spend Christmas and New Year’s Day behind bars.
Martone then sentenced [another student] to 15 days. The two become cellmates.
If this version of the facts is accurate, this story strikes me as deeply troubling on a number of levels.
January 28, 2006 at 12:00 am
Posted in: Civil Rights
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Is Smoking Child Abuse?
posted by Dan Filler
BBC (among others) reports that California will treat second hand smoke as a form of toxic air pollutant. I assume this will empower a new gang of regulators to join the “war on smoking.” I wonder about the effects of these sorts of decisions on smoking parents.
Courts have begun to confront the argument that smoking around children is a form of child abuse. This claim appears to have surfaced repeatedly in child custody battles, but I don’t think it has become a common basis for state intervention in families. With findings like those in California, I suspect that more states will seek to intervene when parents smoke at home. State involvement can sometimes take a positive form – counseling, for example – but it can also result in removing children into foster care. When the household problem is smoking, I’m not sure this is a good thing.
Second hand smoke is bad for kids. For children with special health problems, such as asthma, it can be devastating. So there is little question that when parents smoke at home, they are doing harm. This might suggest that smoking ought to be considered abuse per se. But should it?
First, I’m uncertain whether the health effects are serious enough to constitute abuse. Parents do lots of crappy things to, and around, their kids. Does smoking cross the line? Second, I don’t totally trust state intervention in families. When the household situation is dire, a state must step in to protect children. Perhaps I’m a cynic, but the repeated evidence of incompetence and neglect by some of these family agencies makes me nervous about their involvement except where truly necessary. Third, I’m not convinced that we want mandatory abuse reporters – doctors, psychologists, social workers and (in some states) lawyers – to report every parent who admits smoking around her child. Mandatory reporting damages relationships with clients, reducing trust and, ultimately, the effectiveness of professional services. This damage is justified only when it prevents truly serious harms.
Then there is the slippery slope problem. Once smoking is viewed as child abuse, prosecutions are likely to follow. And in some jurisdictions, convicted child abusers are subject to Megan’s Law notification.
I don’t have a problem with parents introducing evidence of smoking in disputes over custodial and visitation arrangements. In these cases, the child will typically end up in the custody of at least one parent. I think smoking around kids is a bad thing. Smoking around a child with respiratory problems seems clearly abusive. But should smoking around a healthy child be the basis for removing her from parental custody? I don’t have the answer, but I’m not happy with either result.
January 27, 2006 at 12:17 am
Posted in: Civil Rights
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Justice Scalia’s CLE
posted by Mike Dimino
I had the great privilege of attending the CLE that was the subject of this week’s ABC story. Justice Scalia led several of the discussions/lectures, a task which required him to be an active presenter for several hours each of the two days of the conference. Details of the conference are made clear in a letter Federalist Society President Gene Meyer wrote to the President of ABC News. I am floored that anyone thinks there is anything the least bit improper about Scalia’s attendance. Still more am I surprised that this passes as “investigative” reporting, given that the Federalist Society advertised Scalia’s attendance at the Conference and that the same was reported by the AP immediately after Chief Justice Roberts was sworn in.
Stephen Gillers, a professor at NYU, is quoted in the story as saying that Scalia should not have taken the trip for “several reasons,” including the Federalist Society’s “decided political-slash-judicial profile.” Few, if any, groups would fail to be disqualified from having a sitting judge speak to their members under this heretofore unheard-of test. Certainly the ABA and the ACLU have “decided political-slash-judicial profile[s]” and yet — properly — nobody has raised any question of the propriety of speaking to such audiences.
The public ultimately is much the better for groups’ opportunities to interact with Justices, barring extreme cases where the group in question is pursuing an ex parte contact in a case pending or about to be pending before the Court. This proposition, which has been accepted for decades if not forever, is all the more applicable for situations like the conference in question, because it was an opportunity for the participants to learn interactively about a subject interesting the Justice, as opposed to the more typical event where the Justice simply gives a speech.
Of course this is not the first time critics of Justices have fabricated ethical concerns as a way of encouraging opposition to Justices whose philosophies the critics oppose. Scalia himself was the target of such a campaign recently in the Cheney duck hunting episode, prompting criticism by Gillers among others, and ultimately resulting in Scalia’s release of an extraordinary memo defending his non-recusal in the case and pointing out that ethical rules had never before required refraining from the behavior for which he was being criticized. Similar questionable invocations of ethical concerns appear in the Haynsworth and Fortas confirmations, Fortas’s criticism perhaps less questionable than the others.
UPDATE: Here are two posts discussing the report: one from SCOTUS Blog and another from the VC.
January 26, 2006 at 5:13 pm
Posted in: Legal Ethics
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RateMyProfessors and Subverting Hierarchy
posted by Dave Hoffman
Back in May, Kaimi commented on Prawfs about Ratemyprofessors.com. Law students came somewhat late to the site, but my anecdotal sense is that there has been an explosion in ratings in the last six months. For most law schools in the country, multiple professors are now listed and rated. Most law school ranking sites have an anonymous student “moderator,” which would seem to suggest that RMP is trying to defend itself against defamation suits. If that’s the case, it would be fascinating to see what directions the moderators have received. From a brief review of the ratings of lots of law profs., I can’t believe that the directions are particularly restrictive. There is some nasty stuff out there.
Recently, I came across this article analyzing why undergraduates comment on and use RMP. The money paragraph:
[Students] want to provide information to others, and they also feel part of a community of posters. Primarily, students appear motivated to post ratings for teachers who are perceived as being either very good or very bad. This explains why the number of ratings per professor did not show linear correlation with the perceived quality of that person’s teaching. The data show that the only significant relationship with regard to the number of posts was that of the “hotness” rating. Professors with higher hotness ratings received more ratings on average. However, while perceived hotness seems to relate to the propensity to post ratings, this factor did not seem to affect the average quality rating as there was no significant relationship between hotness scores and overall quality scores. This suggests that perceived attractiveness of professors is related to students’ propensity to post about them, but is not sufficient to influence what is posted.
As far I can tell, the lack of correlation in this study between attractiveness and quality rankings is anamolous.
I wonder what would have happened were law students to be asked why they post on RMP. My suspicion is that law students, unlike undergraduates, are more motivated by feelings of powerlessness and a desire to sanction (with online gossip) professors who take particular advantage of the (conservative) hierarchy that the Socratic dialogue offers. As Duncan Kennedy explained in his little red book, “it is meaningful to oppose [hierarchy] by talking, by joking and refusing to laugh at jokes, through the elaboration of fantasies as well as through the elaboration of concrete plans for struggle.” That is, I bet at least some law students use RMP as a way to implicitly whittle their professors down to size.
But maybe that is giving students too much credit. It’s not clear to me whether the student who thinks that I “bounc[e] around the classroom like a leprechaun” was hoping to subvert traditional ideas of law school classroom management. Maybe s/he just didn’t like me much.
January 26, 2006 at 12:24 pm
Posted in: Law School
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Disney-o-rama!
posted by Nate Oman
Go read the Disney posts at Conglomerate.
Gordon Smith, Christine Hurt, Larry Ribstein, Steve Bainbridge, and Elizabeth Nowicki. Good stuff.
January 26, 2006 at 12:07 pm
Posted in: Corporate Law
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Teaching Away the Right to Privacy
posted by Dan Filler
I’ve never liked the Supreme Court’s Vernonia School District line of cases. These decisions authorize public schools to do random drug testing of students participating in extracurricular activities, without the slightest suspicion that the children ever used drugs. You don’t want to be tested for drugs? Don’t do extra-curriculars. Of course, extra-curricular activities are important in many ways, not least in terms of college applications. For many kids, then, there is little choice but to submit to these searches.
Schools seem to have taken up the Court’s offer. I haven’t found hard data on the number of schools using random drug tests but locally – in the Birmingham area – I know the “top three” school districts (judged by test scores and affluence) have such programs. (And two of the three test for tobacco use, in addition to drugs and booze.)
Why don’t I like these schemes? A few reasons. The first one is related to the right of privacy. I don’t think the government should be in the business of searching people in any fashion – let alone sorting through their urine – without suspicion of misconduct. Although I’m not fond of other suspicionless searches the Court has authorized – for example, railroad employess may be tested after a rail accident – at least these testing programs have a narrower scope. Any policy that samples every child in extra-curricular activities – that is, the vast majority of students in these high powered schools – comes awfully close to imposing universal testing.
There are other reasons I don’t like these policies. I think they reflect outsourcing of parental responsibility. You want to test your kid for drugs? Go ahead. But it’s inappropriate for a school to impose these intrusions on all children, including those whose parents don’t buy into a surveillance-as-parenting approach. (Parents can decline to have their kids tested, in most districts, but the children still don’t get to be on the debate team.) I’m also not confident that random testing works – though I’m less certain on this point.
Watching the privacy debates of the last few weeks – domestic spying, Google subpoenas, etc – I’ve come upon yet another reason to dislike Vernonia. I suspect that suspicionless testing programs train children to believe they don’t have a right to personal privacy.
January 26, 2006 at 12:07 am
Posted in: Civil Rights
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Families, Corporations, and the Blackberry
posted by Nate Oman
11D has an interesting post on the pressure that her husband has been getting to carry a Blackberry around with him and go to the bar with the “team” from work on Friday nights. 11D summarizes her anger thus:
Let me get this straight. He’s gone from the house for 60 hours per week. He sees his kids for an hour per day. And now he’s supposed to be checking his e-mail, while he watches his kid’s soccer game. The people that he spends 10 hours a day with are making him spend more time in the evening with them, so they can do jello shots and pat each other on the back for closing all those deals. As he’s pounding shots and head butting the other guys, the kids and I are supposed to amuse ourselves.After I processed this information, I arranged the words, words shit, fuck and damn, in all sorts of unique combinations.
As well she might. (In particular, the notion that one gets pressure to socialize with co-workers rather than going home to your family strikes me as a bit ludicrous). The pithy conclusion to her expletive studded outrage is that “Corporate life is the enemy of the modern family.”
January 25, 2006 at 6:55 pm
Posted in: Corporate Law
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Blogging and profanity
posted by Dan Filler
As I read through Dan Markel’s thoughtful post about SSRN, over on Prawfs, I stopped and lingered over his use of the phrase “shitty first draft.” Although I have not really been conscious of this before, profanity seems largely taboo, at least within the law blogging community. Not that it’s forbidden, mind you, but blogs feel positively Southern in this respect. (People surely curse down here, but typically only in the most informal social settings.) I didn’t think about Dan’s post again until I was skimming comments to one of Eugene Volokh’s posts and witnessed Greedy Clerk get chastised for describing Alito’s selection as “a clear ‘fuck you’ choice to the Democrats.”
I must concede that my sympathies lie with the swearers. Perhaps I was a free-range child, but I grew up cursing and loving it. Then I happened upon a job in a public defender office. Let’s just that say that when it comes to the use of lewd and profane language, those proverbial sailors and truckers will have to take a number.
I fully concede that cursing is no substitute for creative word choice. But I also think that both Dan’s and Greedy Clerk’s use of profanity convey an idea with particularity.
Why is it that we’re so shy when it comes to dirty talk? I suspect that lawyers generally (excluding, for the most part, trial lawyers) are risk averse, and law profs exceptionally so. Among other things, there are tenure committees to worry about. And I suspect that more than a few law profs dream about becoming federal judges. (I am pleased to say that my own fantasy life does not feature any Article III moments.)
I’ll probably stay decent as long as I’m visiting here at Co-Op (after all, I am staying at someone else’s house!) But don’t think I won’t be swearing up a storm in my head.
January 25, 2006 at 10:09 am
Posted in: Blogging
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Being Eugene Volokh
posted by Nate Oman
Blogs are such a new phenomena (and perhaps such an ultimately ephemeral one) that it seems a bit odd to think about the history of blogging, but remember back to the very early days of the blogosphere when The Volokh Conspiracy was on blogspot? Well, I was recently revisiting the archives from my first blog (because — hey! — blogging is about nothing if it is not about narcissism), and I tried to follow some of the links to the old Volokh Conspiracy archives. As it turns out http://volokh.blogspot.com no longer has anything to do with The Volokh Conspiracy. Rather, it is now a blog called “The SEO Reviewer” which promises to provide readers with “the latest information regarding Search Engine Optimisation (SEO) and is a repository for Search Engine Press Releases.” One can only assume that the SEO Reviewer chose their blogspot identity as a way of maximizing their traffic by capitalizing on the efforts of Eugene and company. Was there some sort of a contract here? Is there some sort of a tort?
January 24, 2006 at 7:56 pm
Posted in: Blogging
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The Perils of Being a Denver Broncos Fan
posted by Daniel Solove
This bizarre story on CNNSI.com chronicles how a Pennsylvania high school teacher belittled a student who came to school wearing a Denver Broncos jersey after the Pittsburgh Steelers routed the Broncos on Sunday. What the teacher did, if true, is outrageous, but the photo of the student and his expression are a bit over-the-top as well.
January 24, 2006 at 7:53 pm
Posted in: Weird
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Gonzales’s Tortured Logic on NSA Surveillance
posted by Daniel Solove
Attorney General Gozales brought out some new arguments in defense of the warrantless NSA surveillance program. He should have kept these arguments in the bag, as they are flatly wrong. For example, according to the AP:
Gonzales told his audience: “You may have heard about the provision of FISA that allows the president to conduct warrantless surveillance for 15 days following a declaration of war. That provision shows that Congress knew that warrantless surveillance would be essential in wartime.”
Indeed, FISA authroizes 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. But how does this justify warrantless surveillance that continued far beyond 15 days and that continues to this day? Notwithstanding whether the Authorization to Use Military Force is the equivalent to a declaration of war, this FISA provision indicates that FISA explicitly contemplated the situation the President faced and established a rule — he could engage in warrantless surveillance for 15 days. I have yet to understand how a provision that allows the President to engage in warrantless surveillance for 15 days can be used to justify indefinite warrantless surveillance. Give ‘em a nickel, and they take a dime dollar unlimited amount.
Here’s another gem:
The reasonable basis standard, said Gonzales, “is essentially the same as the traditional Fourth Amendment probable cause standard.”
Nope. The standard is entirely different. The reasonable basis standard is far lower than probable cause. This is not some esoteric fact about Fourth Amendment law, but it is basic knowledge of the law that Gonzales should know.
January 24, 2006 at 6:51 pm
Posted in: Privacy (National Security)
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Are Exploding Offers So Bad?
posted by Dan Filler
Jennifer Mnookin, at Law and Culture, has a good post about the use of exploding offers in law faculty recruiting. I agree with her fundamental points, that such offers a) aren’t very nice (though I’d take issue with her term,”outrageous”); and b) are potentially counter-productive, insofar as they may lead a candidate to accept the exploding offer but leave the school prematurely due to bad feelings.
But here’s the thing. Recruiting – professors, law clerks, engineers – is a competitive business. Despite the overall size of a given year’s hiring pool, law schools are competing over a relatively small number of canidates. And it turns out teaching candidates focus on relatively consistent features in developing their job preferences. The first and most obvious is school prestige, and the related benefits of faculty and student quality. Another important recruiting advantage, as I have suggested, is location. So what are the rest of the hoi polloi, those lower ranked or off-the-beaten-track schools, to do?
January 24, 2006 at 2:12 pm
Posted in: Law School, Law School (Hiring & Laterals)
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