« December 25, 2005 - December 31, 2005 | Main | January 08, 2006 - January 14, 2006 »

AALS Contracts Session

As ContractsProf Blog spotlighted here, today was the Contracts Section meeting at the AALS Conference. The theme was empirical studies in contract law. Section Chair David Snyder moderated a discussion of papers by: Mitu Gulati (presenting on disclosure and sovereign debt contracts); George Geis (presenting on the optimal specificity of default rules); Debora Threedy (presenting on "legal archaeology", i.e., qualitative research on leading cases); and Stewart Macaulay.
Macaulay in particular provided a good perspective on the field, based on his long experience as one of the founders of the law and society movement. He noted the increasing prevalence of private dispute resolution for contractual disputes, and evidence (some presented today) of contracts' lawyers lack of interest in the existence of, or changes in, governing default rules. The message of his talk - somewhat implicit - was that there would be surprisingly few economic consequences were contract law to pick itself up and disappear off of the face of the earth. That is, the hierarchical model of American legal education, which posits that judges (and professors?) generate law, lawyers interpret it, and clients follow it, bears little to no relationship to observed experience. Obviously, Macaulay said it better than I could, and certainly this isn't a novel idea (he's said it before, in many places and in many forms) but it was a good thing to be reminded of as I begin to get ready to teach the second semester of my contracts course.

Posted by hoffman at 11:04 PM | Comments (0) | TrackBack

Signing Off

Thank you, Dan, for inviting me to guest blog over the past few weeks. Thank you, readers, for keeping me honest.

Posted by Jason_Mazzone at 10:59 AM | Comments (2) | TrackBack

Microsoft Shuts Down a Blog in China

Recently, I blogged about how companies such as Microsoft, Google, and Yahoo have been helping China filter searches for censorship purposes and in some cases track down dissidents who post online. According to a story today in the New York Times:

Microsoft has shut the blog site of a well-known Chinese blogger who uses its MSN online service in China after he discussed a high-profile newspaper strike that broke out here one week ago. . . .

The blog was removed last week from a Microsoft service called MSN Spaces after the blog discussed the firing of the independent-minded editor of The Beijing News, which prompted 100 journalists at the paper to go on strike Dec. 29. It was an unusual show of solidarity for a Chinese news organization in an industry that has complied with tight restrictions on what can be published.

The move by Microsoft comes at a time when the Chinese government is stepping up its own efforts to crack down on press freedom. Several prominent editors and journalists have been jailed in China over the last few years and charged with everything from espionage to revealing state secrets. . . .

Mr. Zhao said in an interview Thursday that Microsoft chose to delete his blog on Dec. 30 with no warning. "I didn't even say I supported the strike," he said. "This action by Microsoft infringed upon my freedom of speech. They even deleted my blog and gave me no chance to back up my files without any warning."

Related Posts:
1. Solove, Should Google, Yahoo, and Microsoft Help China Filter Searches?

Posted by Daniel Solove at 08:45 AM | Comments (1) | TrackBack

Discussion on Surveillance at blog*on*nymity

I'll continue to be posting very lightly as the AALS conference continues. For those readers hungry for information privacy reading, Ian Kerr (law, Ottawa) and others are having a discussion on surveillance at his blog, blog*on*nymity.

Posted by Daniel Solove at 08:20 AM | Comments (0) | TrackBack

A Heartening Thought

Here is the judicial quote of the day for me from Yankee Publishing Inc. v. News America Publishing, Inc., 809 F.Supp. 267, 280 (SDNY 1992)(Leval, J.):

First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.

Thank goodness for that...

Posted by oman at 05:27 PM | Comments (2) | TrackBack

Thanks

Thanks to all who attended the happy hour last evening. We had a great turnout and a terrific time.

Posted by Daniel Solove at 09:50 AM | Comments (1) | TrackBack

A Typical Day at the AALS Conference

Friends I Caught Up With: Many

Food: Lots

Drinks: A Few

Panels I Attended: None

Day 1 at AALS: Success!

I hope to see many readers at the happy hour tonight at 9:30 PM at Cloud. Details at this post. Remember, you need not have RSVP'd to attend.

Posted by Daniel Solove at 06:45 PM | Comments (0) | TrackBack

Court Grants Padilla Petition

As How Appealing and SCOTUSBlog have reported, the Supreme Court has granted the SG's motion to transfer Jose Padilla to civilian custody. The Court's order disposes of the issue without substantive comment.

As one of my colleagues observed, you can just imagine the Chief Justice raising his eyebrows when reading Judge Luttig's (astonishing) opinion denying the transfer below. Luttig's decision, you may remember, refused to order something that both parties at the time wanted -- i.e., transfer the prisoner to civilian custody -- reasoning that the transfer would undermine the rule of law in the context of an issue of "surpassing" national importance. The Chief Justice's implied reply: "Chill."

Posted by hoffman at 04:46 PM | Comments (0) | TrackBack

Is Gordon Smith Live-Blogging the AALS?

This could be interesting, scary, both or neither.

Posted by hoffman at 04:36 PM | Comments (0) | TrackBack

AALS

I'm in D.C. for the AALS conference currently, and hoping to see at least a few of our readers at tonight's happy hour. I'm also pleased to report that I've finished the hard part of grading (I've still got to do error-checking) so I'm free to return to blogging/teaching/writing full time (in no particular order).

Although I know that only a few of you are lawyers, I thought I'd share my delight that my students did real well on the exam, which was a tough, 24-hour, take home. A few of them even spotted and dealt with what I think is a very interesting (although on the test marginal) issue: whether a merger clause precludes judicial consideration of pre-contract notification (under Hadley) of otherwise unforseeable damages.

In other news, the WJS blog broke this spicy securities law story. Think that perhaps the relationship discussed is in trouble?

Posted by hoffman at 12:57 PM | Comments (0) | TrackBack

Signing Off

Well, it looks like my guest slot time is now up. So I'd like to thank Dan Solove and the rest of the Concurring Opinions bloggers for inviting me to hang my hat here over the holidays. This has been a great introduction for me to the "blawgosphere," and it has been fun taking part in the opinionated conversations. You might not know this, but Dan, in addition to being a prominent legal scholar and writer of consistently thoughtful posts on CO, is really a fantastic and well-organized host to guest bloggers.

In retrospect, I'll count it among my achievements here that I helped give critical mass to the new Wiki category of posts -- and thanks to all the commenters here for all your thoughts. Good luck to the Concurring Opinions collective in 2006 -- may you continue to ascend the Technorati rankings!

Posted by Greg_Lastowka at 04:43 PM | Comments (3) | TrackBack

Finding God in the Appellate Brief: A Quick Follow-Up

My post on finding God in the appellate brief has garnered a bit of attention, some appreciative and some not (see the second comment). I did want to clarify what I meant by the reference to God, which seems to have upset some people. First, I am not claiming that good briefs are written by God or under some sort of divine inspiration. Nor am I suggesting that believers write better briefs than unbelievers. Both of these claims strike me as patently absurd. Rather, I wanted to point out that a well-written brief exhibits a kind of beauty, the beauty of reason. A well-played game of chess shows the same sort beauty. My point is that this beauty can be taken by the believer as a trace of the presence of God. Not, mind you, as evidence of God's exclusive handiwork, nor as evidence of superior moral or even intellectual merit. Rather, it is simply another trace of divine beauty in the world. Put in other terms, the point of the post was not to claim special merit for religious lawyering (whatever that might look like), but rather to see in good lawyering -- religious or not -- some spiritual beauty.

The other purpose of the post, of course, was to drop a wholly gratuitous reference to Matthew Arnold.

UPDATE: Will Baude writes:

But, and I do mean this non-contentiously, why God, particularly?....

I had always taken the structural beauty of human creations (like the brief, the chess game, or the City of Chicago) to be evidence of the presence and the reason of Mankind. I suppose as an empirical matter this tends to be a circle-- those who believe in God think beauty confirms their world while those who believe that the world is chaotic or manmade or whatever else find their own structural theories confirmed.

But what strikes me as odd about chess and the appellate brief is that these are unquestionably the handiwork of man (divinely inspired or not). It always made more sense to me when people took the existence of golden-ratio snail-shells, or certain quantum physical equations, etc., as evidence of some mystic order and orderer of the universe (right or wrong). But here, that explanation doesn't even seem necessary. So why find God rather than Paul Clement?

A good point to which I have two quick responses. First, I don't offer the appellate brief as evidence of God's existence. I look at a glorious sunset, and I experience it as a manifestation of God's majesty or power. I am not sure, however, that is necessarily compelling evidence of God's existence to the skeptic. I am not interested in apologetics here.

Second, human reason can be seen as a manifestation of God's reason. The brief is surely Paul Clement's handiwork, but Clement -- in turn -- is God's handiwork, or (to tweak the point slightly to make it more congruent with my Mormon theology) Clement's reason is a god-like attribute. To look on Will Baude or his well-crafted arguments is to see God.

Posted by oman at 11:26 AM | Comments (3) | TrackBack

New Survey: Law Students Slack Off More in the Third Year

It is surprising that they needed to conduct a survey to find out this shocking news, but I guess now it's official: students slack off more in their third year of law school. According to a Inside Higher Ed article, the data for the study is as follows:

Activity	First-Year Students	Second-Year Students	Third-Year Students
Came to class with readings and assignments completed	93%	84%	74%
Worked on paper requiring integration of multiple sources	80%	66%	71%
Prepared two or more drafts of paper before turning it in	69%	56%	55%
Worked harder than necessary to meet professor’s expectations	61%	49%	46%
Had serious talk with students with different political, religious or social views	70%	68%	65%
Had serious talk with students of different race and ethnicity	61%	59%	58%
Contributed to class discussions	46%	48%	51%
Worked with faculty members on non-class activities (committees, student life, etc.)	64%	49%	47%
Participated in clinical or pro bono project	91%	69%	46%

Insider Higher Ed states that the "survey suggests a serious third-year slump afflicts them as they are about to finish their law degrees." Although the survey's results definitely show some slacking off in the third year, I quarrel with characterizing it as a "serious" slacking off. If anything, the slacking off isn't as pronounced as I had expected. Indeed, the study reveals that only a small percentage of students -- typically around 10% to 15% are doing the slacking. And I'm puzzled by what the survey indicates as the most significant decline: 91% participated in clinical or pro bono work in their first year and only 46% did so in their third year. That doesn't make sense since the first year at most law schools is filled with required courses, and students don't get a chance to try out a clinic until their second or third years of law school.

The study is available here.

Despite the slacking off, I still believe that the third year of law school is a valuable experience. In the fall of 2005, I debated with Laura Appleman whether the third year of law school should be scrapped on Legal Affairs Debate Club. I still stand by my position. Condensing law school to two years would have a very negative impact on the law school experience. I wrote:

A streamlined system will discourage students from engaging in different law school activities if not make doing so nearly impossible. Moreover, the third year is one of the first times that students can catch their breath in their law school experience. It is a time where they can reflect more, where they can have the time to think about their careers and interests, where they can try out different things.

However, Laura and I agreed that legal education did need some significant reform. I wrote:

The missing components—which I agree should occur throughout a student's law school education—are (1) an increased focus and attention to how students might practically pursue and implement some of the normative ideas of law reform that they are taught in law school; (2) more mentoring of law students by professors; and (3) the development of courses (or the taking of time within existing courses) to discuss how students might craft their legal careers.

The study has other findings, a bit less obvious than the 3L slacking. From the Inside Higher Ed's summary:

* Students who reported having more experience with diversity in law school also reported greater overall satisfaction with their law school experience.

* About one in six students reported never receiving prompt oral or written feedback from faculty members.

* Nine out of ten students incur debt in law school, and of those students, the average debt projected upon graduation is $77,000.

Posted by Daniel Solove at 09:35 AM | Comments (11) | TrackBack

The Wall Street Journal Law Blog: Welcome to the Blogosphere

The Wall Street Journal has started a new blog, called the Wall Street Journal Law Blog. Unlike many blogs hosted by the mainstream media, this blog has trackbacks and comments. According to the blog:

Our mission: to scour the universe for compelling stories in two related areas: business and law, and the business of law. Law and business is a broad intersection, encompassing such current news as the Enron trial, the Merck litigation and the RIM patent dispute. The business of law is focused on law firms and in-house law departments. We’ll write about industry news and legal trends, with a sprinkle of good old-fashioned gossip.

We’ll link to the best coverage of law and lawyers from around the Web, report some news of our own and look to you for contributions. We heartily invite your comments, tips and insights.

The primary blogger is Peter Lattman, who worked as an attorney before becoming a reporter.

In an early post, Peter has the scoop on what Article III Groupie will be doing:

Here’s the latest buzz: Queen of the blogosphere Ana Marie Cox is said to be handing over the reins at her spicy political blog Wonkette. David Lat, the federal prosecutor who revealed himself to the New Yorker magazine in November as the author of the popular “Underneath Their Robes” judicial blog, is expected to start blogging for the site.

Posted by Daniel Solove at 09:11 AM | Comments (0) | TrackBack

Should J. Edgar Hoover's Name Be Removed From the FBI Building?

A recent article in the LA Times discusses the ongoing debate about whether to remove J. Edgar Hoover's name from the FBI building. J. Edgar Hoover was the head of the FBI from 1924, its early days before it was even called the FBI (it used to be called the Bureau of Investigation), until his death in 1972. Throughout his career, Hoover engaged in a massive array of abuses. According to the LA Times article:

Every year for the last three years, Rep. Dan Burton, a Republican from Indiana, has introduced a bill to strip J. Edgar Hoover's name from the FBI's headquarters — an initiative that has been largely ignored.

Now, however, amid headlines about possibly illegal government surveillance of Americans inside the United States, the effort to rename the Hoover building is starting to attract more supporters, most recently U.S. Circuit Judge Laurence H. Silberman, a Republican who was a leader of the presidentially appointed commission on pre-Iraq-war intelligence.

"This country — and the bureau — would be well served if his name were removed from the bureau's building," Silberman, a Reagan appointee, told the 1st Circuit Judicial Conference in June. "It is as if the Defense Department were named for Aaron Burr."

Should Hoover's name be removed from the FBI building? My answer is a definite yes. Although Hoover played an enormous role in shaping and growing the FBI, his record of abuses is so ugly and inexcusable that it far overshadows any achievements. For example, here are some of the things Hoover did:

* Hoover had hundreds of people wiretapped, including politicians, dissedents, academics, Supreme Court Justices, and others.

* Hoover maintained a vast array of dossiers on scores of people, including John Steinbeck, Ernest Hemingway, Charlie Chaplin, Marlon Brando, Muhammad Ali, Albert Einstein, Justice William Douglas, and numerous Presidents and members of Congress.

* The FBI vigorously investigated, wiretapped, and attempted to disrupt political dissenters in a program known as COINTELPRO (counterintelligence program). This was done in the name of national security. COINTELPRO focused on the American Communist Party, but the program extended far beyond to encompass the Civil Rights Movement and opponents of the Vietnam War.

* Hoover would gather extensive data about people's private lives and use it to blackmail them or to publicly discredit them.

* Hoover had Martin Luther King placed under extensive surveillance. The FBI sent recordings revealing King's extramarital affairs to King and his wife, along with a letter suggesting that King commit suicide or else his "filthy, abnormal fraudlent self [would be] bared to the nation."

There's much much more. Hoover's abuses are chronicled in the extensive Church Committee Report of 1976.

For more about Hoover, I recommend Curt Gentry, J. Edgar Hoover: The Man and the Secrets (Norton, 1991). This is one of the most engaging and fascinating accounts of Hoover's activities, and although it is over 800 pages long, it isn't an onerous read.

For an account of the surveillance of Martin Luther King, David J. Garrow's The FBI and Martin Luther King, Jr. (1980) is a short and interesting read.

Hoover's abusive surveillance was one of the factors that led Congress to pass the Foreign Intelligence Surveillance Act of 1978, the law that President Bush is claiming he can ignore when conducting NSA surveillance. Although Hoover has a great historical significance to the FBI, the agency sorely needs to move past his influence, not have it still emblazoned on its building. On the other hand, perhaps having Hoover's name on the building will serve as a constant reminder of the FBI's shameful past, of Hoover's unfettered and unchecked power . . . a reminder that some in Washington sorely need.

Other books of interest:

* Fred Jerome, The Einstein File: J. Edgar Hoover's Secret War Against the World's Most Famous Scientist (2002)

* Richard Hack, Puppetmaster: The Secret Life of J. Edgar Hoover (2004)

* Ronald Kessler, The Bureau: The Secret History of the FBI (2002)

* Richard Gid Powers, Secrecy and Power: The Life of J. Edgar Hoover (1987)

Posted by Daniel Solove at 01:35 AM | Comments (4) | TrackBack

Ads You Can't Escape

I received my monthly subway pass over the weekend, which SEPTA refers to as my "Transpass." It looks something like the image on this post, except that the January pass is embossed, for the first time, with an advertisement for a local latino newsweekly. The back of the card contains more information about the weekly, along with (now) very fine print about the terms and conditions of subway riding.
I know this is just the sort of thing that rational people ignore. But it drives me a little crazy. I'd prefer to avoid as much persuasive messaging as I can, and I very much dislike new advertising on previously uncluttered surfaces. I don't want my fruit tattooed with ads; and I think I ought to be able to get onto the subway without paying the mental tax of ignoring an ad.
I just came back from NY, whose metrocards are blessfully free of advertising. So I was wondering: are other transit agencies also trying to turn their tickets into a profit center?

Posted by hoffman at 11:00 AM | Comments (10) | TrackBack

AALS Blawg Happy Hour: A Reminder

This is a reminder about our happy hour, in conjunction with PrawfsBlawg, during the AALS conference this week in Washington, DC. The happy hour will be held at Cloud, on Wednesday, January 4th at 9:30 PM.

Cloud is at 1 Dupont Circle NW, which is on New Hampshire Avenue just south of Dupont Circle. Click here for directions.

I hope that many readers are able to attend. Please RSVP if you haven't already, but you're welcome to stop by even if you haven't RSVP'd.

Posted by Daniel Solove at 12:24 AM | Comments (0) | TrackBack

How Much Should Judges Get Paid?

Uh, oh.

In his first year-end report Chief Justice John G. Roberts, Jr. repeats the dubious claim his predecessor William H. Rehnquist made for years: the Republic will fall unless Congress immediately increases the salaries of federal judges.

Roberts says that the low current pay is a “direct threat to judicial independence” because it means judges can serve only “for a term dictated by their financial position rather than for life.” Judges will be forced to take more lucrative private jobs to support themselves in old age. Unless salaries increase substantially, Roberts claims, the federal bench will become less diverse because only the “independently wealthy” will be able to serve.

Federal district court judges make $165,200 a year. Circuit court judges make $175,100. Associate justices rake in $203,000. And the Chief Justice himself is paid $212,100.

Is it really so difficult to make ends meet on these princely sums?

Sure, lawyers in private practice can earn much more. Partners at top-flight firms make several million dollars annually. But federal judges have way more interesting jobs with all kinds of wonderful perks, including a permanent place in history.

If the “low” salary means some people don’t apply to be judges, then so be it. After all, does a lawyer who is in it for the money really have the right temperament to be a judge? Does the average American have a decent chance of receiving justice before somebody who considers a six-figure income a vow of poverty?

Chief Justice Roberts points in his report to the recent increase in the number of federal judges leaving the bench for private practice. That’s too bad. But would the judge who is scraping by on $165,000 (or more) really stick around for the 30% increase Roberts is asking Congress for?

For the record, when jurors serve in federal court they earn $40 per day plus bus fare.

By that standard, judges are paid very nicely, thank you.

Posted by Jason_Mazzone at 09:47 PM | Comments (5) | TrackBack

DRM, Copyright, and Contract

Cory Doctorow at BoingBoing discusses a post from a blogger about an insert in the new Coldplay CD from Virgin Records. The insert states that the CD contains extensive Digital Rights Management (DRM) restrictions:

According to some of the restrictions, the CD cannot be copied onto a computer hard drive; songs cannot be converted into MP3 files; and it might not play in some CD players, such as portable CD players, car CD players, and others. I love the special rhetorical touches, such as that by purchasing the CD, you're helping the anti-piracy cause and that the DRM is "special technology" added "for you to enjoy high quality music." It reads as if the purchaser should be giddy with excitement that the CD contains this really cool technology that makes the CD less functional. Doctorow writes:

Coldplay's new CD comes with an insert that discloses all the rules enforced by the DRM they included on the disc. Of course, these rules are only visible after you've paid for the CD and brought it home, and as the disc's rules say, "Except for manufacturing problems, we do not accept product exchange, return or refund," so if you don't like the rules, that's tough.

I'm not a contracts or commercial law expert, but since most CDs do not have such restrictions, it is reasonable for a purchaser to assume that the CD will have a similar level of functionality as other CDs. To the extent that a person is sold a CD with much less functionality, it would strike me that the purchaser would not be out of luck, but would have some potential legal remedies. Since the issue is beyond my range of expertise, I pose the question to readers more well-versed in this area of law: To what extent would a purchaser of the Coldplay CD have any right to return the CD notwithstanding the clause that prohibits returns absent a manufacturing defect?

Posted by Daniel Solove at 04:47 PM | Comments (7) | TrackBack