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Why Enron Still Matters

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!

Posted by hoffman at 11:00 PM | Comments (3) | TrackBack

Congress takes action on Wikipedia abuse . . .

. . . 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?

Posted by Kaimipono at 05:59 PM | Comments (3) | TrackBack

Identity Theft: Increasingly an Affliction of the Young

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. . . .

Houk's friend was stunned to learn that someone had fraudulently opened a bank account in her 12-year-old daughter's name. The con artist then opened about a half dozen credit card accounts, declared bankruptcy, had it written off and left the youngster with a mess of legal hassles.

"It's an easy thing to do. Once they get a valid Social Security number, they just go to town," said Houk, acting chief executive of the center, which is a private organization that distributes information about identity theft.

The most victimized age group for identity theft was the 18-to-29 category. The FTC said that category registered 29 percent of the complaints, or more than 70,200.

Last summer, I blogged about a 22-month old toddler who was victimized by identity theft. My guess as to why kids are increasingly targeted is because in many cases, it would take a lot longer for the identity theft to be discovered. Many people learn that they are an identity theft victim when they seek to obtain a loan or credit card -- something kids don't often do. And parents often don't think that they need to be checking their children's credit reports, but perhaps they should be.

Of course, kids are not an entirely perfect target for identity theives because kids don't have much of a credit history to exploit. But with credit card companies and others nearly tripping over themselves to grant credit, it's no surprise that the identity thieves are able to obtain credit in children's names.

Related Posts
1. Solove, Free Credit Reports: My Exciting Adventure (Concurring Opinions) (October 2005)
2. Solove, Youngest ID Theft Victim? (PrawfsBlawg) (July 2005)
3. Solove, Why Identity Theft Isn’t Pretty (PrawfsBlawg) (July 2005)
4. Solove, Identity Theft Fears and Online Shopping (PrawfsBlawg) (June 2005)
5. Solove, Identity Thief Professors (PrawfsBlawg) (June 2005)

Posted by Daniel Solove at 01:32 AM | Comments (1) | TrackBack

Liveblogging the Enron Trial

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.

Posted by hoffman at 11:31 PM | Comments (2) | TrackBack

"Religious Arguments in the Law" or "Reasoning in God's Presence"

Vic Fleischer had a really interesting post on religion and tax policy over at a Conglomerate that shouldn't be lost in all of the Disney noise. He writes:

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.

The second interesting issue in this passage is Vic's implicit argument that the usefulness of a particular form of discourse hinges on its ability to persuade those who disagree. Hence, he prefers philosophy to religion -- presumably because philosophy is marginally more persuasive than religion -- and "tax law scholarship and economics" to both. Interestingly, it seems to be precisely because he doesn't regard philosophy as all that much more persuasive than religion -- "I am a skeptic about the ability . . . to convince anyone . . . by appealing to Rawls OR the Bible." -- that he doesn't see religious discussions of tax law as presenting a particular challenge to reason. (More on this in a minute.) Obviously, there is something to be said for the idea that one ought to gauge the value of an argument on the basis of how persuasive people find it. But this should hardly be our only -- or even our dominant criteria -- for assessing the value of a particular sort of argument. First, one can learn a great deal by reading arguments that one ultimately does not find persuasive. I don't find Kaplow & Shavell persuasive. I do find them very enlightening, and I would be much the poorer if they had not written their book. Furthermore, arguments that one disagrees with are useful in informing one about how others think. You are likely to get a more nuanced feeling for world-view of the other guy by reading sophisticated versions of his arguments rather than what one might find summarized in the pages of the New York Times. Finally, I suspect that for many arguments -- particularly arguments about social or political matters -- the extent to which a set of arguments is persuasive has as much to do with the temperament of interlocutors as it does with anything else. I tend to find that good economic arguments will change my mind. I have a good friend -- an intelligent and thoughtful person -- for whom such arguments do nothing, and although I am inclined to write most of his objections off as economic illiteracy, this is hardly fair on my part. Likewise, I find that I will change my mind in the face of good theological arguments. Vic's reaction is apparently otherwise. I suspect, however, that this ultimately tells us much more about my disposition or Vic's disposition than it does about the abstract merits of economics or theology.

The final interesting point -- at least for purposes of this already too-long post -- is one that Vic raised earlier in his post, namely whether or not religious arguments represent a basic challenge to rationality. As I understand it, this objection to religious arguments, when cashed out in a concise form, goes something like this:

1. Faith is belief in the absence of reasons for belief.
2. Believers grant authority to particular religious texts on the basis of faith.
3. Religious arguments about tax law (or other legal issues) consist of deductions from religious texts.
4. Granting authority to religious texts is irrational. (1&2)
5. Therefore, religious arguments about tax law (or other legal issues) is irrational.

If this argument is sound there are at least two potential problems with religious arguments. (For the record, I don't think that it is sound in large part because I reject 1, but that is an issue for another day.) First, such arguments simply won't be persuasive to non-believers because they reject the authority of the religious texts. Second, such arguments constitute an abdication of independent moral judgment that is ethically and politically troubling. I think that both of these concerns are mistaken, because I actually doubt that most religious arguments are really attempts to deduce conclusions from religiously established premises. Consider, for example, those who make arguments about the ethics of this or that legal rule on the basis of the Bible. What one will rapidly find is that the Bible is a very complicated book that consists mainly of stories. The meaning of these stories is contestable, and there are lots of them to choose from. Furthermore, it is by no means obvious that the Bible adopts a single, coherent approach to issues of ethics or morality. (I certainly do not believe that it does.) In other words, far from providing clear, authoritative answers to complex moral issues, in many ways the Bible simply recapitulates the old debates between duty and consequences, justice and mercy, in a different language. I don't want to suggest that religious arguments are simply carbon copies of secular arguments translated into another language. The language can shift and change. Thinking about a policy question in religious terms -- in religious language if you will -- is going to change how one thinks about it. For this reason, religious arguments -- if they are well done -- are valuable even for non-believers, because they give one a new way of working through old issues. Aside from the difference that such religious thinking can make in terms of substantive outcomes, it also has value for the believer. By invoking religious texts and stories, the believer invites God into the conversation. The point is not necessarily for him to step in as the final arbiter of the dispute. Rather, it is a way of having the discussion in his presence. Cf. Isaiah 1:18 ("Come now, and let us reason together, saith the Lord"). It is important to realize, however, that one is having a discussion. Religious thought is not an abdication of reason or discussion; it is simply reasoning and discussion by other means.

(If you are interested in more of my meanderings on this subject, check out my post "Is God an Ethicist?", written in a more explicitly theological line.)

Posted by oman at 11:04 AM | Comments (3) | TrackBack

Gun Buffs And Fourth Amendment Lovers Unite!

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.

Why hasn't the ACLU done more to connect with gun supporters? Perhaps because its urban progressive membership has long supported aggressive gun control as a crime control method. Like the NRA, the ACLU has to cater to its big donors even if its legal strategy would benefit from new coalitions. Also, I imagine the ACLU leadership itself suffers from big city bias. Big city folk just don't see why the rest of America cares so much about guns. City dwellers don't hunt. They haven't grown up with guns and they wouldn't give up anything if guns were banned. For many city people, only two groups of people have guns: criminals and cops. Here's the problem with this view: gun control, even if it might have been effective ex ante, would now probably be of minimal utility in reducing crime. Does anyone seriously think that a ban on, say, handguns would significantly decrease the number of weapons in the hands of criminals? Maybe by 2050, but I doubt much sooner. (I concede that gun control could potentially decrease homicides in domestic disputes.) Gun regulation is one of those crime control strategies that doesn't work well in a retrofit.

It would make a lot of political sense for these two groups to start dating. Gun rights advocates would strengthen their hand if they snared only a small element of the civil liberties community. It would also give them a two-Amendment approach to defending gun rights. And Fourth Amendment supporters desperately need the access and credibility offered by the gun rights lobby. Currently, gun lovers don't feel much need to expand their base. Over time, though, I fear we'll see an ever more aggressive government leaching into manifold aspects of our individual lives. Our current "strong executive" is using a blend of technological advances and fear mongering in its drive for broader social supervision. Future executives may well continue this effort, but there are no guarantees that individual gun rights will always be part of this agenda. (A well armed public is, potentially, much harder to control.) This may be my own dark imagination, but I think an NRA - ACLU coalition is almost inevitable in the long haul. It might be far easier to begin bridge building today.

Posted by Dan_Filler at 01:22 AM | Comments (5) | TrackBack

The ChoicePoint Settlement

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.

1. The settlement might not have been possible were it not for the California security breach disclosure law (SB 1386, codified at Cal. Civ. Code § 1798.82(a)) that required ChoicePoint to disclose its security breach. Currently, data brokers are trying to get Congress to pass a very weak and narrow security breach notice provision that preempts stronger state laws. The Data Accountability and Trust Act, HR 4127, now in the House of Representatives, requires disclosure only if there is "a significant risk of identity theft." Under the bill, who determines whether there's a significant risk of identity theft? Ironically, it appears that it will be the very companies that leaked the data. With most of the security breaches that were announced in 2005, the companies insisted that the risk of identity theft was minimal to non-existent. So it would seem that with this provision, hardly any companies would make the disclosure. If a company decides that it must disclose, then it is also conceding that there is a "significant risk" of identity theft from its breach. Few companies will want to make such a concession, as it will create a public relations nightmare. Given the strong disincentive for companies to admit publicly that a security breach could cause significant risks to consumers, the "significant risk" threshold will lead to very few if any disclosures.

The reason why data brokers are pushing for a federal disclosure bill is because they want to preempt stronger protection in the states. When the ChoicePoint data security breach was disclosed, only California had a data security breach disclosure law. But afterwards, many states responded by passing similar laws. According to a compilation by the Public Interest Research Group (PIRG): "This year, security breach notification legislation was introduced in at least 35 states. As of 4 January 2006 at least 23 states have passed security breach notification laws." A weak preemptive federal disclosure bill will wipe away much stronger protection in many states. The very kind of disclosure law that made the FTC settlement possible might be nullified if Congress passes the data "protection" laws that the data brokers want.

2. The FTC complaint and settlement illustrates why it is important to have data brokers regulated under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681. FCRA, the law upon which the FTC's complaint was premised, regulates consumer reporting agencies. According to the FTC complaint:

The persons who obtained this consumer information submitted applications to ChoicePoint and were approved by the company to be subscribers authorized to purchase ChoicePoint products and services. The applications contained false credentials and other misrepresentations, which ChoicePoint failed to detect because it had not implemented reasonable procedures to verify or authenticate the identities and qualifications of prospective subscribers. Among other things, ChoicePoint failed to: utilize readily available business verification products, such as those that identify commercial mail drops; examine applications and supporting documentation supplied by prospective new users; compare information supplied by prospective new users to information supplied by other applicants in order to identify suspect representations; conduct site visits; or utilize other reasonable methods to detect discrepancies, illogical information, suspicious patterns, factual anomalies, and other indicia of unreliability.

The complaint sets forth a series of specific examples. Here are a few:

ChoicePoint accepted and approved, without further inquiry, the applications of subscribers notwithstanding the fact that ChoicePoint’s own internal reports on the applicant linked him or her to possible fraud associated with the Social Security number of another individual. . . .

ChoicePoint also failed to monitor or otherwise identify unauthorized activity by subscribers, even after receiving subpoenas from law enforcement authorities between 2001 and 2005 alerting it to fraudulent accounts, and even when its own experiences with the subscriber should have raised doubts about the legitimacy of the subscriber’s business.

To the extent that FCRA applies to data brokers, it restricts and penalizes activities such as these. However, data brokers such as ChoicePoint still operate many databases that they claim fall outside of FCRA. Back in December 2004, before the ChoicePoint announced its data security breach, Chris Hoofnagle of the Electronic Privacy Information Center and I jointly submitted a letter to the FTC that stated that:

ChoicePoint sells a number of FCRA products in the employment screening, tenant screening, and criminal background check fields. But the company also sells two products, "AutoTrackXP" and "Customer Identification Programs" outside of the FCRA's protections. AutoTrackXP is a database of 17 billion records that includes Social Security Number, addresses, property and vehicle information, and other information. The company's anti-fraud "Customer Identification Programs" are a suite of data products that have been created in order to verify the identity and perform background checks on individuals who open new financial services accounts. From its description, Customer Identification Programs appears to be an AutoTrackXP report with additional identity verification services.

These two products are sold to financial institutions, members of the public (private investigators, law firms, etc.) and to law enforcement agencies. These are the same institutions which rely on credit reports and investigative consumer reports, but these new products are sold outside the protections of the FCRA, yet are often used for related (and sometimes identical) purposes.

These databases have yet to be regulated. The ChoicePoint settlement does not address the letter Hoofnagle and I sent to the FTC. Thus, although the settlement is a step forward, it does not address all of the problems caused by data brokers. Much more must be done to effectively regulate data brokers.

Related Posts:
1. Solove, ChoicePoint Wants Your Motor Vehicle Records (Concurring Opinions) (December 2005)
2. Solove, FTC: Letting Experian Keep the Spoils (Concurring Opinions) (November 2005)
3. Solove, ChoicePoint: More Than 145,000 Victims? (Concurring Opinions) (November 2005)
4. Solove, Free Credit Reports: My Exciting Adventure (Concurring Opinions) (October 2005)
5. Solove, Notice Much Delayed: The FDIC Security Breach (PrawfsBlawg) (June 2005)
6. Solove, Data Security Breach Supersized: 40 Million People Affected (PrawfsBlawg) (June 2005)
7. Solove, Data Leaks: Déjà Vu All Over Again (PrawfsBlawg) (June 2005)
8. Solove, Tallying Up Data Security Breaches (PrawfsBlawg) (May 2005)

Posted by Daniel Solove at 12:42 AM | Comments (2) | TrackBack

On Admitting Mistakes

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.

Posted by Mike_Dimino at 12:27 AM | Comments (1) | TrackBack

Injustice in Michigan

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.

First, we don't know if the students were advised of their right to counsel before Judge Marone started to question them. They should have been, as criminal contempt "is a crime in the ordinary sense and . . . the proceedings must comport with the standard of due process applicable in all criminal proceedings." City of Ann Arbor v. Danish News Co., 139 Mich.App. 218, 361 N.W.2d 772 (Mich. App. 1984). But even if they were, I don't understand how you can turn an admonishment not to drink into a judicial order specific enough to give rise to a criminal contempt charge. (This assumes that it is constitutional to prohibit 19 year olds from drinking alcohol.) Criminal contempt is serious business: turning a paternalistic admonishment (according to the article) into an open-ended obligation not to consume alcohol is, in my view, questionable.

Second, it makes me uncomfortable when a Judge serves as the police (searching out evidence) the prosecutor (questioning witnesses and forcing them to admit statements against interest) and the jury all at once. This is more problematic given that this particular Judge was insulted personally by the photo captions. Isn't this just the sort of targeted justice that the Eighth Amendment was designed to prevent?

Third, the story ends by telling us about a third of the students, who appeared before the Judge accompanied by counsel. Smart move.

Martone looked down from the bench and said, 'I think you're sincere. And your attorney says you're sincere.' He then doubled Senopole's hours of community service, to 100, but gave her 10 days of jail time -- fewer than the other girls -- and let her serve them one at a time, on weekends, 'so it doesn't interrupt your studies.'

What’s the lesson here? Not to try to criticize judges (like professors?) with gossip? Not to drink? Or not to be pro se?

Posted by hoffman at 12:00 AM | Comments (7) | TrackBack

Is Smoking Child Abuse?

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.

Posted by Dan_Filler at 12:17 AM | Comments (17) | TrackBack

Justice Scalia's CLE

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.

Posted by Mike_Dimino at 05:13 PM | Comments (8) | TrackBack

RateMyProfessors and Subverting Hierarchy

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.

Posted by hoffman at 12:24 PM | Comments (6) | TrackBack

Disney-o-rama!

Go read the Disney posts at Conglomerate.

Gordon Smith, Christine Hurt, Larry Ribstein, Steve Bainbridge, and Elizabeth Nowicki. Good stuff.

Posted by oman at 12:07 PM | Comments (1) | TrackBack

Teaching Away the Right to Privacy

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.

Schools are in the business of teaching, signaling, and modeling social rules and values. These testing regimes convey an important civics lesson, and tell students something about the role of privacy in American law and culture. I worry that, as a result, more and more children graduate from high school with no sense that the Constitution explicitly and implicitly protects individuals from searches by the government. Based on personal experience, they may concluded that there is no right to privacy.

I wonder if this next generation will take less offense at warrantless domestic wiretapping or if they'll be sanguine about the routine tracking of citizens by government. Perhaps they'll be less concerned about bodily autonomy in other areas. What's the big deal about abortion regulation, if your body is just another site for governmental regulation?

Time will tell. But as our government reframes American life as a series of never ending wars - drugs, illegal immigration, porn, terrorism - schools seem to be reframing privacy as hopelessly out of date.

UPDATE: I have changed my spelling of Vernonia. I have also attempted to reprogram my brain which believes the case is called "Veronia."

Posted by Dan_Filler at 12:07 AM | Comments (12) | TrackBack

Families, Corporations, and the Blackberry

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."

On one level I agree with her. The super-turbo-charged-24/7/365-at-the-office career is the enemy of the family. On the other hand, I always get suspicious of big generalizations about "corporate life." I find that one moves rapidly from the reality of corporate life (which is actually remarkably diverse) to the imaginary world of unremittingly eeeveel corporations created by humanities majors and others who think that they know what corporations are "really" like because they saw Oliver Stone's Wall Street.

Consider, the Blackberry that 11D maligns. One can think of the Blackberry as symbolizing any number of things. 11D sees it as the symbol of a workplace that recognizes no limits on the demands that it may decently make on its employees. However, one might just as easily see it as evidence of other things.

In particular, I tend to think of the Blackberry as the symbol of the triumph of networks over hierarchies. The corporation of the 1950s or 1960s was an imperial bureaucracy with clear lines of command and control that regimented and controlled the work of its employees. It was rigid, tightly-controlled information, and was structured around the basic notion of economies to scale. These were the behemoths that were torn to shreds in the hostile take over binge of the 1980s.

What has emerged to replace them are flatter more flexible organizations based around networks rather than hierarchies. The notion is that communication and decentralization are ultimately better at problem solving than command and control. I don't want to get all business-consultant gushy about this move. Corporations are still hierarchical and to a lesser or greater extent they remain rigid. Indeed, some companies have switched back to an earlier, more rigid format after getting burned by an overly sanguine reliance on networks. Still, Ronald Coase's basic insight about the nature of the corporation continues to bear fruit: Corporations are essentially islands of hierarchy in a sea of decentralized market activity. The hierarchy is a mechanism for dealing with transaction costs. When those costs fall -- as they have dramatically in the last ten or fifteen years -- hierarchies drop with them. In its place we get a more flexible workplace, where the borders of organizations are permeable and sometimes indistinct.

Which brings me back to 11D's assertion -- "Corporate life is the enemy of the modern family." What kind of corporate life is she referring to? Does it matter? What are the real implications of daddies with Blackberries?

It seems to me that flatter organizations contain problems and opportunities for families. First the problems: They are less secure. Pensions are out and 401(k)'s are in. A life-time employer is increasingly a thing of the past. Second, they can be much more competitive, which puts pressure on workers to adopt the super-turbo-charged-24/7/365-at-the-office model. Third -- to put this bluntly -- they are not kind to dumb people. Increasingly, there are fewer places for dull but contented cogs. The great advantage for families is flexibility, and -- at least in some places -- a reward system based on results rather than face-time, the billable hour, or some other purely temporal metric of contribution to the corporation. Or at least that is the promise of the Blackberry...

Posted by oman at 06:55 PM | Comments (3) | TrackBack

Blogging and profanity

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.

Posted by Dan_Filler at 10:09 AM | Comments (3) | TrackBack

Being Eugene Volokh

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?

Posted by oman at 07:56 PM | Comments (5) | TrackBack

The Perils of Being a Denver Broncos Fan

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.

Posted by Daniel Solove at 07:53 PM | Comments (0) | TrackBack

Gonzales's Tortured Logic on NSA Surveillance

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.

Posted by Daniel Solove at 06:51 PM | Comments (51) | TrackBack

Are Exploding Offers So Bad?

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?

Exploding offers, though unpleasant from the candidate's viewpoint, are a strong recruiting tool. First off, as one of Jennifer's commenters suggests, they sometimes work. There is a risk that the recruiting school will unnecessarily lose its favored candidate, but if the hiring committee is making sharp assessments, its targets will frequently receive competing offers from more attractive schools. In such cases, an exploding offer may be the only route to an acceptance. And when a candidate does say no, the short deadline allows the school to quickly pursue backup candidates. On balance, particularly where a school has a strong second choice candidate, I suspect that exploding offers yield better faculty hires.

And what about the lingering bad feelings? Two things. First, I'm not sure that all candidates facing an exploding offer experience this. In order to feel mistreated, a candidate has to believe she has some sort of entitlement to the better job. I can't speak for those folks in play at the most elite schools, but few of the candidates I've seen - even those we lose to other schools - have the self-confidence (may I even suggest ego?) to feel entitled to a chance at the "better" job. opportunity to the "better" school. Second, even if a candidate does feel anger at her new employer, in many cases she will have little long-term recourse (other than leaving the field.) Many excellent entry-level candidates don't turn out to be nearly as insightful or productive as expected. And while there is some lateral mobility in law teaching, it is surprisingly limited.

I personally believe that good treatment of candidates produces positive karma - for the school and for individual relationships. But since you can't cash karma at the end of the month (or mail out a karma glossy during US News ranking season), I'm sympathetic to those deans who disagree with me.

Posted by Dan_Filler at 02:12 PM | Comments (1) | TrackBack

Trump's Net Worth

This article press release details Donald Trump's new defamation suit against New York Times reporter Timothy L. O'Brien and Warner Books, Inc., for, saying that Trump was not a billionaire in the book The Art of Being the Donald:

The lawsuit alleges that in publishing these false statements, O'Brien and Warner deliberately chose to ignore, among other things, voluminous and comprehensive financial information that Trump made available to them prior to the publication of the book, which confirmed conclusively that Trump's net worth is in the billions of dollars. Indeed, Forbes Magazine rigorously analyzed the very same books and records and other financial data that O'Brien and Warner chose to ignore, and concluded that Trump's net worth conservatively is at least $2.7 billion.

What I know about the topic of Trump's net worth comes largely from O'Brien's NYT articles on the topic, which (not incidentally) were quite skeptical of Forbes' approach to valuation. I also am surprised that Trump would be interested in exposing his books to public scrunity, which (presumably) O'Brien and Warner could insist on as a part of their defense. Shucks, as a plaintiff, Trump might not even be able to obtain a protective order in N.J. State Court. [Being unfamiliar with local practice, this is just a guess, but Trump's privacy claim is weaker than it would be if he had been forced to court as a defendant.]

Nevertheless, you've got to give Trump style points for being willing to double-down his bets:

The lawsuit, which was filed in state court in Camden, New Jersey, seeks $2.5 billion in compensatory damages and $2.5 billion in punitive damages....

Posted by hoffman at 02:00 PM | Comments (7) | TrackBack

Welcome

What do you get when you combine an astounding 33 female law professors and a blog? You get Feminist Law Professors, a meta-group blog that looks to be a must-read. The blog looks like it is mostly an Ann Bartow creation, but the sidebar credits include a number of very interesting names. Welcome to the blogosphere, FLP!

Posted by Kaimipono at 01:21 AM | Comments (4) | TrackBack

Going Digital: The Future of Reprints?

One of the great things about law review articles is that you can order a batch of reprints -- separately-bound copies of your article that you can send out to a list of your colleagues. I have a large and growing database of various professors, policymakers, journalists, and others who receive copies of my articles -- a fact that is not without some irony, since many of these people are in the information privacy law field, and I have written extensively on the problems posed by databases. Thus, ironically, I maintain a database with one of the most extensive collections of people who criticize databases.

It is common practice among law professors to send out reprints widely, as this is a way to present one's scholarship to others in a highly-readable format. But reprints come at a considerable cost. Recently, I got the price quote for a reprint order for a soon-to-be-published article. Under the pricing scheme, I get 40 free reprints, but that's not nearly enough for my database, which includes hundreds of people. For 200 extra reprints, it would cost about $744 and for 400 extra it would cost $1059. Wow! I nearly had a heart attack . . . and I'm not even the one paying the bill -- my school picks up the tab. Anyway, if I handed a bill for over $1000 to my dean, the keys to my office might not work the next day. Plus, there's the cost of postage, envelopes, and stationary.

So here's my idea. I'm thinking of moving toward a system of electronic reprints. I could send out a PDF version of the final article in an email to everybody in my database. In other words, I'd shift from being a junk mailer to a spammer. . . .

In my email, I'd include the text of the letter I would have sent to accompany the reprint, attach the article in PDF format, and possibly include a link to the final version of the paper on SSRN. I'd still order some reprints -- about 50 to 100 -- and offer to send hard copies of the reprints to anybody who requested them. My guess is that I'd get a few people requesting the actual reprint, but most people interested in reading the article would just print it out from the attached digital version.

The pros to moving in this direction are:

(1) It's much cheaper.

(2) There's less wasted paper. Many reprints wind up in the trash. Under the digital system, only those who really are interested in the article will print it out.

(3) It's much easier to send out a reprint -- no signing hundreds of letters.

Cons:

(1) Some people might really prefer reading the reprint rather than a printed-out version in the same formatting. And they might feel that it is an imposition to ask for a reprint. Or perhaps too many would ask for the actual reprint. Supplies would be low, and reprints cannot be ordered after the article is printed.

(2) Some people might find the email to be an annoyance. People are used to the current practice of sending physical copies, so they might not mind receiving something in the mail. I fear, however, that because people might not be accustomed to receiving a reprint by email, they might take offense to it. For some (hopefully not many), the email may add further unwanted clutter to their already burgeoning email inbox.

So I pose the question: Should I move to a digital reprint system? For those who receive reprints in the mail, would you have a strong preference for reading the actual reprint as opposed to a printed-out copy with the same formatting? Do you even read the reprints you receive?

Posted by Daniel Solove at 01:17 AM | Comments (11) | TrackBack

O Canada!

Today Canadians go to the polls to see if the ruling Liberals remain in power, or if they will be ousted in favor of the Conservatives. (For those who don't closely follow such things, Canada is a small country south of Detroit.) The Liberals have been in power for a long time, and aside from the normal woes of prolonged incumbency (in-fighting, intellectual exhaustion, voter fatigue, etc.), the Liberals are also reeling from a scandal over the funneling of government advertising money in Quebec into Liberal