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Suckering in New Collectors

The WSJ (free version) has a great article today on efforts made by collectors to try to maintain the market value of their goods by reducing costs for young entrants. Here is a taste

If new generations of collectors don't materialize, the value of items will plummet. That's why marble clubs, to generate enthusiasm, send free marbles to schools. The U.S. Mint has a Web site with cartoons and computer games to entertain kids about the thrills of coin-collecting. Indeed, children have shown considerable interest in the state quarters program . . . Some collecting groups have created unstated policies. The 650-member National Milk Glass Collectors Society -- a group devoted to opaque glass -- holds an annual auction. When the rare young person shows up to bid on an item, older collectors lower their hands. "We back off and let the young person buy it. We want them to add to their collections," says Bart Gardner, the group's past president.

Worth reading in full, if only to learn what the Oughtred Society does.

Posted by hoffman at 12:04 PM | Comments (0) | TrackBack

The Unraveling of the Market for Law Review Submissions

Professors, start your engines: it is time for the spring rush of law review papers. For those of you who are not law professors, aspiring professors, or student editors, you will be unfamiliar with the spectacle of thousands of professors submiting articles to dozens and sometimes hundreds of journals simultaneously, and, having received offers, attempting to expedite "up the ladder" under short time deadlines. Professors' goals in this process are varied: maximizing characteristic X of the journal for citation/tenure/lateral movement purposes; maximizing quality of editing required (or minimizing it, depending on mood); obtaining "lead article" status; minimizing time to publication; selecting for generous copyright permissions; etc. Editors and journals simultaneously are competing to get the "best" articles, judged by a variety of measures (author individual prestige/author's institutional prestige/expected citation by journals or important courts); beating a competing journal for quality work; making a statement on an issue of public importance; etc.

In any event, this is all old news. What is clearly new is that the time for submitting law review articles is creeping backwards. Just ten years ago, my colleagues tell me, late March was the beginning of the cycle and articles were routinely submitted and accepted in May. Now, as Kaimi's post has highlighted, late February is the beginning of the cycle and many journals will be filled (at least for this round) by late March. Moreover, anecdotally, journals are increasingly "exploding" offers, trying to reduce competition through segmenting the market; and moving up board transitions to before Spring Break.

So what's up? It seems to me [and, no, I can't seem to find someone else who has said this although it isn't earth-shattering] that we are experiencing what Alvin Roth called the "unraveling" of a sorting market. Classic examples of unraveling occur in the labor context - the judicial law clerk market is the paradimatic case - where the time the market begins to operate slowly is pushed back in time as the relevant actors try to get a first-mover advantage. As a result of this market failure, relevant information is not disseminated, and sub-optimal decisions are made.

In our law review example, similarly, the moving back of decisions has multiple pernicious effects. Authors may not be able to get any sense at all of the "market value" of their article (loosely reflected, the myth goes, by multiple offers at a variety of journals). Conversely, journals feeling pressure to move quickly will increasingly resort to proxies for quality like letterhead, prior publication, and the eminences listed in the article’s first footnote (which tell you who an author's friends and professional contacts are).

Roth posited four stages of such markets:

Stage 1 begins when . . . the relatively few transactions [in the market] are made without overt timing problems. By the middle of stage 1 . . . some appointments are being made rather early, with some participants finding that they don't have as wide a range of choices as they would like–students have to decide whether to accept early job offers or take a chance and wait for better jobs, and some employers find that not all of the students they are interested in are available by the time they get around to making offers. The trade journals start to be full of exhortations urging employers to wait until the traditional time to make offers, or at least not to make them any earlier next year than this year. Towards the end of stage 1, the rate of unraveling accelerates, until sometimes quite suddenly offers are being made so early that there are serious difficulties distinguishing among the candidates. There is no uniform time for offers to be made nor is there a customary duration for them to be left open, so participants find themselves facing unnaturally thin markets, and on both sides of the market a variety of strategic behaviors emerge, many of which are regarded as unethical practices. Various organizations concerned with the market may have proposed guidelines intended to regulate it, without notable success. As stage 1 ends, influential market participants are engaged in a vigorous debate about what can and should be done.

(Roth & Xing 1994, p. 996). By my reading, we’re in the middle of a stage 1 market. (Taking blogs for "trade journals," check out Christine Hurt's posts flagging the issue and exhorting others not to play the expedite game).

For the curious, Stage 2 markets have "institutionalized regulations" which govern the earliest that offers can be made; stage 3 markets have institutional procedures that organize transactions; and stage 4 markets have some unraveling preceding the centralized clearinghouse. It is not clear to me - as I'm not really as familiar with Roth's work as I ought to be - whether he sees these stages as natural, inevitable, steps, or whether they are a mere typology.

In a possible further series of posts, I will hope to (1) explore empirical evidence that this is in fact an unraveling market problem (as opposed to anecdote, to the extent possible); (2) question whether Expresso and electronic submission generally will make the problem worse or better; and (3) mull over some modest reform proposals. To be clear, I'm a very strong supporter of student run journals, notwithstanding the usual critiques. I'm worried that the current process gives ammunition to folks who think that the entire process is irrational at best and totally random at worst. Finally, I wonder if we can come up for a story as to why more information about this particular market isn't easily available - i.e., which journals are full; when do they want submissions by; what kind of articles have they already accepted (this is more relevant in the Fall cycle); what are they doing to discourage submission; etc.

Oh, and lest I forget, here is a shameless plug for my current contribution to this unraveling problem.

Posted by hoffman at 12:02 AM | Comments (6) | TrackBack

More on Blogs as Scholarship

Recently, I blogged about a National Law Journal article about law blogs and scholarship. Doug Berman points out that blogs and blog posts are even being cited by judicial opinions. Indeed, Berman's blog was recently cited by the Ohio Supreme Court, and in the past it has even been cited by the U.S. Supreme Court.

Mike at Crime & Federalism observes:

Scholarship is something that moves our legal knowledge forward. If x-article or blog post helps us understand something we hadn't understood, then it's scholarly. . . .

Anyhow, I'd love to hear those who disapprove of blogs to explain what separates Doug Berman's blog from his casebook or a sentencing treatise. If Orin Kerr writes a lengthy entry about the PATRIOT Act, is it not scholarly because he publishes it online?

Larry Ribstein observes:

[S]ome blogs have a lot to do with scholarship in the sense of importantly contributing to the process. My blog, for example, conveys scholarship-relevant information, and I learn the same from other blogs. I also use my blog to germinate and develop ideas that eventually appear in polished scholarship.

Rick Garnett at PrawfsBlawg notes:

Look, of course it is true that most blogging looks a lot more like "chit chat" than like "scholarship." But isn't there a pretty big chunk of middle ground here? My sense is that -- at least in the law-blogger world -- a fair bit of what gets blogged and blogged about does "have [something] to do with scholarship": People blog about what others are writing about, about what they are writing about, about what they plan to write about, or what they tried to write about. No one thinks that blogging could or should take the place of scholarship. But it seems quite a stretch to suggest that law-blogging does not have -- unlike, e.g., enthusiastic and engaged conversations around the lunch table, or during a workship? -- anything at all to contribute to the scholarly enterprise.

And here's a link to the lineup at Paul Caron's conference on blogging at Harvard this April.

Posted by Daniel Solove at 12:01 AM | Comments (2) | TrackBack

Congratulations to Nate Oman

It is my pleasure to announce some good news. Nate Oman will be joining the faculty at William & Mary School of Law this fall. Congratulations, Nate! And congratulations to William & Mary, which is getting a first-rate legal mind.

Posted by Daniel Solove at 10:18 PM | Comments (1) | TrackBack

It's February 27. Do you know where your Articles Committee is?

Colleagues are talking about it in the hallway. How many boards have switched over? Where exactly are the windows, and when exactly is the "sweet spot" for sending a piece out?

I'm hoping to solicit some responses from our readers, in the comments to this post, to help provide our readers with the information that may help them answer those questions. Are you affiliated with a law review? Has your board turned over? If so, please indicate this in the comments. If enough readers comment, we may be able to collect some useful information. (I believe this could be useful both for the authors, who will send their pieces out at the best time, and for the editors, who will hopefully see fewer premature articles).

Details -- "the West Dakota Law Review board turns over on March 1" -- are particularly appreciated. Thanks!

Posted by Kaimipono at 02:50 PM | Comments (39) | TrackBack

Law School Lateral Hiring Report

Brian Leiter has been very helpful in sharing information about lateral moves by law faculty. Due to time constraints, however, he is limiting his list only to faculty moving to/from schools that figure in his faculty rankings. Since many of us want to learn about ALL faculty moves, Concurring Opinions has decided to emulate Professor Solum's Entry Level Hiring Reports. As a public service, we - OK, I, Dan Filler, the new kid on the blog (and no, this assignment is not part of normal Co-op hazing) - will collect all your news about law school lateral movement.

Let me know:
Current School
Future School
Teaching Areas
Current Law School Webpage Address
Any Other Details (chair or administrative titles, etc.)

If you have heard of others' moves, feel free to alert me to those as well. I'll double check before posting.

Please send this information to danielmfiller@gmail.com.

I'll post results shortly, and update as necessary.

Posted by Dan_Filler at 12:55 PM | Comments (1) | TrackBack

The Decline of Blogging?

A WSJ article (free online content) tries to debunk rumors of the demise of blogs:

Maybe you've heard: Blogs are a vanishing fad -- this year's digital Pet Rock. Or a business bubble about to pop. Or a sucker's bet for new-media fame seekers.

Recent weeks have seen the rise of a cottage industry in Whither Blogging? articles.

I find it hard to believe that rumors of blogging's demise have even surfaced. It strikes me as ridiculous to presume anything about whether blogging has peaked given how early in the game it is. The WSJ article debunks these rumors, but concludes by reaching some middle ground:

But blogging will no longer be a phenomenon. When people talk about it, they'll often be referring to tools for putting up simple Web sites easily, or a certain style of Web publishing: brightly written, frequently updated and inviting reader conversation. That may feel a long way from the claims of blogging's first heady days, but then that's the way most such things turn out: Wikis aside, today's Web looks very little like Tim Berners-Lee's original idea for a kind of digital whiteboard. Blogging is easier, faster and more conversational than traditional Web publishing, but that doesn't change the fact that relatively few people actually yearn to be publishers. Nor do they particularly care what category the things they read fit into, or what technological tools produced them. That may not sound like the stuff of revolution or VC riches, but it also doesn't sound like a fad or a failure.

The author should have also looked at social network chat sites such as MySpace, Xanga, and Facebook. Members of the upcoming generation are living their lives online, and blogging is the way that many are communicating with each other. These sites are growing at a phenomenal rate. MySpace boasts 50 million users.

Hat tip: Bashman

Posted by Daniel Solove at 10:31 AM | Comments (0) | TrackBack

About Blogging and Legal Scholarship

An article today in the National Law Journal discusses blogging and legal scholarship. Doug Berman and Paul Caron are quoted on the pro side of blogging. According to the article:

Berman said he is not suggesting that law professors blog "24/7," but that exchanging ideas with other scholars and practitioners and keeping as current as possible on specific topics can enhance traditional scholarship.

John Eastman and Kate Litvak come out against blogging, which they don't find intellectual enough to be considered as much more than a diversion. There's a lot of law review bashing going on in the piece, including Ann Althouse and Berman. It seems from the article that many praising blogging attack law reviews, but Litvak manages to bash both law reviews and blogs:

"[Blogs] have nothing to do with scholarship," said Katherine Litvak, a professor at the University of Texas School of Law. . . .

"Blogging has the presumption that you write something thoughtful, important and valuable. I don't think the medium allows that," she said. . . .

The amount of time professors devote to blogging is not the real problem with blogs, said Litvak, of the University of Texas. She added that if faculty members want to pass the time on nonscholarly pursuits, they will find a way to do it, blogging or not. Calling the traditional law review system "fundamentally corrupt," she said that scholars might better spend their time writing for peer-reviewed journals. . . .

While blogging is not a replacement for scholarship, I agree with Berman that it is a useful form of sharing ideas and staying current. More of my thoughts on blogging and scholarship are here. I also diverge from Litvak on law reviews, which I do consider valuable; I just wish we professors could write better.

The article also discusses the upcoming conference at Harvard in April that Paul Caron is organizing about blogs and scholarship. I will be participating along with many others. Additionally, the article mentions my law professor blogger census.

Hat tip: Bashman

Related Posts:

1. Solove, Compilation of Posts on Academic Blogging
2. Solove, Larry Solum on Blogging and Scholarship
3. Solove, Blogging Without Tenure

Posted by Daniel Solove at 09:35 AM | Comments (1) | TrackBack

Paper Discovers Trove Of Unseen Civil Rights Photos

Today the Birmingham News published a treasure trove of photographs documenting the Civil Rights movement. These absolutely remarkable photos, featuring Martin Luther King, Thurgood Marshall (pictured at right in a group that included Constance Baker Motley), and other significant individuals and events from that era, can be accessed here. While some appeared at the time, many of these images have not been published previously. According to the account in today's News, the photos were found accidentally:

[The discovery was] the result of research by Alexander Cohn, a 30-year-old former photo intern at The News. In November 2004, Cohn went through an equipment closet at the newspaper in search of a lens and saw a cardboard box full of negatives marked, "Keep. Do Not Sell."

The accompanying article includes interesting interviews with News photographers and others discussing why many of these images never saw the light of day. One photographer recalled that "the editors thought if you didn't publish it, much of this would go away."

The News has changed over the years naturally. In 1988, it offered a tempered self-critique of its civil rights coverage saying: "The story of The Birmingham News' coverage of race relations in the 1960s is once marked at times by mistakes and embarrassment but, in its larger outlines, by growing sensitivity and acceptance of change." That remains a fair characterization of the broadsheet. The editorial board is iconoclastically conservative. It is anti-abortion and solidly Republican but unafraid to confront ideological inconsistency and social injustice. For example, the News recently reversed course on the death penalty, calling for its abolition. Why?

Because we have come to believe Alabama's capital punishment system is broken. And because, first and foremost, this newspaper's editorial board is committed to a culture of life. Put simply, supporting the death penalty is inconsistent with our convictions about the value of life, convictions that are evident in our editorial positions opposing abortion, embryonic stem-cell research and euthanasia. We believe all life is sacred. And in embracing a culture of life, we cannot make distinctions between those we deem "innocents" and those flawed humans who populate Death Row.

That sounds like Senator Sam Brownback on steroids! For those interested capital punishment issues, the News also published a substantial week-long series on the state's death penalty.

In a similar vein, the editors have strongly supported tax initiatives designed to make Alabama's tax system more progressive. (The centerpiece of these efforts, a referendum supported by Republican Governor Bob Riley, and energized in large part by my colleague Susan Hamill's article, An Argument For Tax Reform Based on Judeo-Christian Ethics, was soundly rejected by voters.) They have also stepped forward as supporters of disability rights.

I understand the deep suspicions some continue to harbor towards the News. I have no doubt that the paper was complicit in the awful treatment of African-Americans in Birmingham. Still, reading the paper day in and day out, I'm a bit more optimistic. These photos may have been found accidentally, but the continued growth of the Birmingham News seems quite intentional.

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

Total Information Awareness Strikes Back

Government surveillance and data mining programs, it seems, never die. They just get renamed. So it has been with the much maligned airline screening program, which was originally called "CAPPS II." It was canned, and a new program was started called "Secure Flight." Recently I blogged about Secure Flight being canned, and I predicted that it would soon be reincarnated. That hasn't happened just yet . . . but wait . . . it will. It's a pattern.

Remember back in 2002, when a program called Total Information Awareness (TIA) came to light. TIA was a plan to create a massive government database of personal information which would then be data mined. The project had a website, and its logo (pictured) had the words "knowledge is power" in Latin. There was a considerable public outcy when news of TIA made its way through the media. William Safire wrote a blistering op-ed in the New York Times attacking TIA. In 2003, Congress voted to deny it funding. The program was ended.

But I was skeptical. In my book, The Digital Person, I wrote:

While public attention has focused on the Total Information Awareness project, the very same goals and techniques of the program continue to be carried out less systemically by various government agencies and law enforcement officials. We are already closer to Total Information Awareness than we might think.

I hate to say "I told ya so," but TIA lives. It has been broken up into pieces with nifty names like Genoa II, Basketball, and Topsail. As the National Journal now reports:

Research under the Defense Department's Total Information Awareness program -- which developed technologies to predict terrorist attacks by mining government databases and the personal records of people in the United States -- was moved from the Pentagon's research-and-development agency to another group, which builds technologies primarily for the National Security Agency, according to documents obtained by National Journal and to intelligence sources familiar with the move. The names of key projects were changed, apparently to conceal their identities, but their funding remained intact, often under the same contracts.

It is no secret that some parts of TIA lived on behind the veil of the classified intelligence budget. However, the projects that moved, their new code names, and the agencies that took them over haven't previously been disclosed. Sources aware of the transfers declined to speak on the record for this story because, they said, the identities of the specific programs are classified.

Two of the most important components of the TIA program were moved to the Advanced Research and Development Activity, housed at NSA headquarters in Fort Meade, Md., documents and sources confirm. One piece was the Information Awareness Prototype System, the core architecture that tied together numerous information extraction, analysis, and dissemination tools developed under TIA. The prototype system included privacy-protection technologies that may have been discontinued or scaled back following the move to ARDA.

A $19 million contract to build the prototype system was awarded in late 2002 to Hicks & Associates, a consulting firm in Arlington, Va., that is run by former Defense and military officials. Congress's decision to pull TIA's funding in late 2003 "caused a significant amount of uncertainty for all of us about the future of our work," Hicks executive Brian Sharkey wrote in an e-mail to subcontractors at the time. "Fortunately," Sharkey continued, "a new sponsor has come forward that will enable us to continue much of our previous work." Sources confirm that this new sponsor was ARDA. Along with the new sponsor came a new name. "We will be describing this new effort as 'Basketball,' " Sharkey wrote, apparently giving no explanation of the name's significance. Another e-mail from a Hicks employee, Marc Swedenburg, reminded the company's staff that "TIA has been terminated and should be referenced in that fashion."

The reincarnation of Total Information Awareness seems to be part of a common theme with the Bush Administration. No matter whether there's a law or whether Congress has explicitly repudiated a program, the response is to just keep on truckin'. When the representatives of the people in a democracy emphatically vote to end a program, shouldn't that be the end of it? What part of "no" doesn't this Administration understand?

Hat tip: Kerr

Related Posts:
1. Solove, The Death of Secure Flight?

Posted by Daniel Solove at 12:02 AM | Comments (0) | TrackBack

Dan Filler Signs on the Dotted Line

I'm delighted to report that Dan Filler has agreed to stay on permanently here at Concurring Opinions. He probably doesn't fully appreciate the fact that he has just signed away his life for nearly nothing in return. He'll spend eons of time producing content for the blog and get no financial rewards or otherwise.

But his loss is our gain. We think that Dan is a terrific blogger, and he'll continue to add greatly to this site. We couldn't be more pleased. Welcome aboard, Dan!

Posted by Daniel Solove at 12:01 AM | Comments (5) | TrackBack

Becker, Posner and the Purpose of the University

Richard Posner and Gary Becker, over at their eponymous blog, have been blogging about the Summers resignation. They both come out for Summers, and against tenure. The discussion is worth checking out in full.

I wanted to focus in on what seemed to me to be an underlying issue that neither Becker nor Posner really nails down: what good is the university supposed to maximize? Or, clearer put, what is the purpose of a university? Posner argues that faculty and university incentives and capabilities are misaligned:

The faculty are interested primarily in their own careers, and what is good for their careers and what is good for Harvard are only tenuously connected . . . What is more, [a replacement president] might be more inclined to kow-tow to faculty, enhancing their careers at the expense of the long-run health of the institution.

But this does not tell us what success or “long-run health” means. Both eminent economists turn quickly to market measures of value. Posner claims that "our universities are the best in the world" [Ed.: Now is the time to remind the reader that such puffing claims are not to be trusted, and to suggest that they look for this paper on that very topic.] Becker is more explicit:

Still, I believe the only satisfactory way to evaluate how universities (or businesses) are run is by their success or lack of it in the long run. Although there is no simple way, like profitability, to judge universities, there is an effective way to judge a university system. The American college and university system is widely accepted as the strongest in the world. This is why American universities are filled with students from abroad, including those from rich nations with a long history of higher education, like Germany and France.
I conclude from this that the American university system must be doing many things right, at least relative to the other systems. And what is right about this system is rather obvious: several thousand public and private colleges and universities compete hard for faculty, students, and funds. That the American system of higher education is the most competitive anywhere is the crucial ingredient in its success.

This argument confuses me. Is the claim that because our universities attract foreign students at higher rates than foreign graduates attract U.S. students our universities are "successful" and should do more of what they are already doing? That claim would seem tough to swallow given that our universities allow entry into our economy and (through marriage to fellow-students) citizenship, and thus attending Harvard isn't necessary a proxy for endorsing its governance structure. Or is the claim that our success is a product of competition itself? In that event, who cares what internal governance looks like as long as we have established a market for private education?

More generally, it seems to me that without a good account of what the university should be doing (and not what the market is rewarding it for doing) arguments about proper governance structure are founded on quicksand. After all, there are a significant number of more autocratic colleges than Harvard extant. Almost all such schools are traditionally seen as less successful in many ways. Should we chalk Harvard’s success up to path-dependence? The distorting effects of tenure and labor unions? Does this internal market not matter to our evaluation of Harvard’s success? Because if it does, how can we say that the faculty governance model that Harvard has long followed is inversely related to “long term health” of that institution?

(Hat Tip: Todd Z.)

Posted by hoffman at 07:50 PM | Comments (3) | TrackBack

Shameless Plug

As multiple teasers in this space have hinted, I've been working on an article about vivid commercial lies and boasts. That article is now out to the law reviews, under the heading: The Best Puffery Article Ever. Given the title,further description seems sort of unwise, but for the curious, perhaps an abstract would be in order:

This Article provides the first extensive legal treatment of an important defense in the law of fraud and contracts: “puffery.” Legal authorities commonly say they make decisions about whether defendants should be able to utter exaggerated, optimistic, lies based on conclusions about buyer behavior, concluding that consumers do not rely on such speech. However, as the Article shows, such conclusions are proxies for a deeper analytical question: does the speech encourage or discourage a type of consumption activity that the court deems welfare maximizing.
The Article presents a novel constitutional analysis of puffery doctrine that focuses on the meaning of “misleading” speech, a term of art at the heart of the Supreme Court’s contested and still evolving commercial speech jurisprudence. Missing from that jurisprudence is a satisfactory account of how consumers and investors react to speech that is not literally false but which has false implications. I present such an account, focused on the incentives and capabilities of sellers to exploit buyers’ cognitive vulnerabilities. I draw on economic, marketing, psychology and consumption literatures.
I conclude by offering a novel liability proposal. Because legal authorities are incapable of satisfactorily drawing a line between harmful and innocuous puffery, the law should make sellers presumptively liable if their speech contains exaggerated, but vague boasts. This approach would place the onus on sellers to balance the costs and benefits of puffery, and thus lead both to more satisfying doctrine and a more optimal level of fraud.

I'll be putting a draft up on SSRN shortly. And, now, I can return to my regular quota of blogging!

Posted by hoffman at 01:17 PM | Comments (3) | TrackBack

Starbucks' Secret Menu

Everyone has a different perspective on Starbucks. In a place like San Francisco, with a strong independent cafe culture, it's seen as Corporate Joe. In Birmingham, though, Starbucks helped balloon the city's tiny pre-existing cafe community. Enough cultural commentary. My main goal with this post is to alert interested Starbucks consumers to a few attractive menu items that have inexplicably been left off the menu. (I speak primarily for the Birmingham stores, but in my experience these items are generally available nationally.)

For for the frugal and/or low intenisty addict: the Short coffee. It's served in the same cup as the kid's hot chocolate. And you always thought that it was nonsensical that Starbuck's small was called tall. It isn't; they just don't want to explain matters to you.

For cafe au lait lovers: the Misto. Cafe au lait fans will love the Misto because, well, it is a cafe au lait. Half cup of coffee, topped with steamed milk. Ask for it extra foamy.

For people who have strong coffee preferences: the French Press. They don't tell you this, but for 3 or 4 bucks, they'll serve you up a french press made of any coffee in stock. So when the coffee of the day is House, and you just gotta have Sumatra...it's your choice. And you'll have enough to share with a friend.

Take control of your Starbucks experience. Order off menu.

Posted by Dan_Filler at 09:53 PM | Comments (56) | TrackBack

John Paul Stevens In Picture And Song

If you haven't heard this Air America spoof of Hang on Sloopy - retitled Hang on Stevens - it's worth a click. I can't imagine that Stevens, a Republican (OK, a Hyde Park Republican, but still...) would have predicted this fate 30 years ago.

And if you haven't yet seen this wonderful childhood photo of the Justice at his dad's hotel (known, eponymously, as The Stevens, but since transformed first into the Conrad Hilton, and later the Hilton Chicago, and shown at right) take a look. According to this article, he's the kid on the left.

UPDATE: It seems that you can't create a permanent link to the photo. To see an enlarged version go here and search keywords for "Stevens Hotel Two Boys". The photo is entitled "two young boys playing a games, sitting at a small table in a playroom at the Stevens Hotel." But the picture actually has three boys, and the aformentioned descriptive sentence actually has a grammatical error.

UPDATE 2: I've altered the pictures so that everyone can now see both the kid-pic and the hotel.

Posted by Dan_Filler at 01:32 AM | Comments (4) | TrackBack

Government Issue Porn

It's no surprise that the Attorney General is turning up the heat on pornography. (Christine started us talking about DOJ recordkeeping rules last week, and the Google issue bubbled up a few weeks before.) Porn is an anathema to the GOP's base, and with few supporters (other than those card carriers over at the ACLU and the 34 million (soon to be 40 million) anonymous consumers hunkered down behind their monitors), such attacks are an easy way to satisfy social conservatives. Perhaps Alberto Gonzalez will take the same approach as Reagan's AG, Edwin Meese: preparation of a Porn Report. The Attorney General's Commission on Pornography Final Report (available, at least in part, here) was more than a condemnation of pornography; it was a complete reference volume on the field. History, law, a feminist critique of objectification - everything was there in one intimidating tome. To prove that world was filled with truly porny porn, the Commission produced serious evidence: loads of material extracted from genuine dirty books and magazines. This was one racy government document; I can only imagine the lines at those designated library repositories. Sales must also have been solid. Just as happened with The Starr Report, a commercial publisher stepped in and republished the fat government document. (The flashy book cover, to the right, is the reprint.)

The moment is ripe for a new update - Porn 2K, perhaps - but times and technology have changed a great deal in the interim. Nowadays, a report need not take the form of a paper book that gathers dust in the Government Document Collection. Like many government publications, it can be distributed on the web - complete with hypertext links to sources. Imagine the manifold ways that a Gonzalez Report might show the nature and extent of pornography in America. If the Meese Report soldiered through, making its case through the use of dry text, a new hi-tech report could provide readers with link after link to graphic, vulgar, offensive, genuinely nasty smut. And the nature of this smut has changed! Pornography, like everything else, has gone the way of the celebrity. So what atrocities might be exposed in this report?

Why not link readers to a Paris Hilton amateur sex video, a honeymoon sex tape from Survivor Jenna Lewis, or that aging chestnut, When Pamela Anderson Meets Tommy Lee? Then there are celebs-in-the-buff. The Report will need to connect interested citizens to the many celebrity websites, featuring Jennifer Aniston Nude! Angelina Jolie Nude! Scarlett Johansson Nude! ... well, you get the idea. Not all famous women have been caught in that primal state, but that doesn't slake consumer interest. The report may then have to direct concerned readers to shady sites featuring fake nudes, where a famous woman's head has been attached to a random (but robust) figure. These websites might be the biggest problem of all. Can their owners produce an ID proving that the torso floating below the starlet's fetching face is really 18? Millions of Americans will want to know.

Perhaps the Commission could hire Stephen Bates, a primary author of the Starr Report who previously wrote for Playboy. After all, we'd certainly expect that the millions of people downloading such a timely study would be reading it for the articles!

Posted by Dan_Filler at 12:01 AM | TrackBack

The end is near, and so I face my final curtain

Many thanks to the regular crew at CO, particularly Dan and Dave, for inviting me to comment this past month. I have had a wonderful time and look forward to returning. Thanks also to the many readers who have taken the time to contact me, comment on my posts, or simply to read them. It is wonderful to be part of the electronic community of legal scholars, students, and the interested public, and I am indebted to those who asked me to take a role. Best wishes, and please continue to call and e-mail.

Mike

Posted by Mike_Dimino at 04:46 PM | Comments (2) | TrackBack

Hallucinogenic Tea with Chief Justice Roberts

Earlier, I posted on the interesting position taken by the new Chief Justice on the Gonzalez v. Oregon case, which involved the Controlled Substances Act. There, he joined Justices Scalia and Thomas in a reading of the federal law that would have effectively ended Oregon's experiment with physician assisted suicide. Now, in Gonzalez v. O Centro Espirit a Beneficente Uniao Do Vegetal, he authors a major opinion reading the Controlled Substances Act (CSA) narrowly to allow a church to import hallucinogenic tea. What gives?

In the Oregon case, the majority rejected a broad reading of the CSA so that it was compatible with Oregon's Death With Dignity Act. I call this technique of reading statutes narrowly to permit subnational disagreement "interstitial empowerment." By contrast, in the hallucinogenic tea case, he brushed aside the argument that Congress' mention of peyote was meant to be exclusive--therefore licensing judicial creativity in spelling out future exemptions to the CSA based on religious-observance grounds. Justice Roberts devastates the federal goverment's arguments about the need for uniform federal law: "it echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions."

So, why was Justice Roberts unwilling to interstitially empower ailing individuals but adamant about doing so on behalf of this church? Why a stickler about uniformity in one case, only to poo-poo it in the next one?

One explanation is that he's more morally comfortable with a religious group's rather unconventional practices involving drugs than he is with sick people killing themselves with drugs. In other words, he is outcome-determinative because of his moral upbringing. This would be the take of the critical legal scholar or perhaps the attitudinal approach popular in one wing of political science. There is some basis for this account: he signs Scalia's dissent in Gonzalez in which Scalia goes out of his way to reaffirm the national government's power to cultivate national moral standards. Still, I haven't seen enough to say that his person religious views are driving his interpretive decisions.

Another possibility is that he sees an individual right more clearly and directly at stake here--namely free exercise, well established in the case law if disfigured by decisions like Employment Div. v. Smith (ironically, another Oregon case), whereas there is no right to die except in a hypothetical extreme case. That is to say, his conception of rights tips the balance of interests. And yet Roberts seems more interested in rights than in powers.

The third possibility, and I think the most plausible one, is that he's a nationalist through-and-through (and only a part-time supporter of state's rights if it doesn't implicate broad notions of federal power). The enactment of RFRA makes all the difference in the world, and he's willing to narrow the CSA by reading the two synthetically in ways that favor RFRA rather than the CSA. Where others see a certain amount of confusion in federal law as a result, he sees elegance. When, however, the state seeks a close reading of federal law, it pushes his nationalist button hard: he sees disarray, diffusion of federal interests, and a general nightmare.

There is some dovetail with explanation two: to the extent that no federal right to suicide exists, the strong federal interest weighed in favor of the U.S. position in that case; to the extent that religious exercise is a federal interest, the First Amendment plus RFRA equals two federal interests. And, of course, since every judge is a product of his environment, one would expect that he would appreciate federal interests more viscerally given his career.

One nagging difficulty with this account is that as the Oregon case was finally framed, it should have appealed to Roberts' nationalist impulses: the majority saw a separation of powers issue of grave importance if the Attorney General could, with a stroke of the pen, rewrite federal law. Yet he would not budge. My best rough explanation is this: with Roberts, national interests beat state interests, and among federal interests, executive prerogative beats congressional oversight. Lawyers should frame their arguments accordingly.

This is where being a non-originalist is a mixed bag, since there is significant historical support for the idea that the rights created by the states were meant to be respected. The good news is that on those rare occasions when Congress is so moved that it acts to extend liberty via federal statute, the new Chief may be sympathetic to that exercise of sovereignty (it's too early to say for sure, but this may be a positive sign for the future of federal civil rights statutes). The bad news is that when state or local governments act to extend notions of liberty, he may be less inclined to engage in sophisticated analysis to empower them.

Posted by Robert_Tsai at 01:56 PM | Comments (3) | TrackBack

When Punishment Breeds Crime

The NY Times has an important article today about the extent to which ex-offenders are burdened by court costs. There have been some further comments on the issue here. I know what many folks will say: criminal offenders, not society, should pick up the secondary costs of their behavior. Clearly, it is appropriate for people who have money to pay for court costs and perhaps even the cost of incarceration. But most people who commit crimes are poor. So while justice may demand offenders to pay, common sense requires that courts be very careful in assesssing such charges.

There are at least two reasons why indigent offenders should be assessed minimal, if any, costs. First, as a practical matter, these individuals will take a very long time to pay up. In many cases, this means that they will remain on probation - with all the associated administrative costs - for longer than the sentence otherwise demands. (Probation often remains open until all costs are paid, irrespective of the underlying sentence.) Aggressive judges actually incarcerate offenders for non-payment when they find (sometimes incorrectly) that the offender had money but simply didn't share it with the courts. Incarceration is incredibly pricey. It's a reasonable expense to stop serious crime, but excessive when the only "crime" is a failure to contribute $100 to the public fisc.

A second problem with these fees, even for those who can marginally afford them, is that they can tip poor offenders over the brink. Among the poor, criminal convictions and incarceration create very dark economic futures. There has been some important literature showing that incarceration - and particularly the poverty that follows when offenders leave jail - damages offender communities and leads to further crimes spikes. This in turn leads to more incarceration. Ex-offenders are already saddled with a large bundle of economic and social sanctions, often termed collateral punishment or civil disabilities. They have trouble getting jobs, housing, licenses, and other things essential to earning a living. Earning a living, in turn, is typically a precondition for staying out of trouble. To the degree that these fees make economic survival more difficult, they are counterproductive: they produce crime.

This is not a bleeding heart versus tough love issue. It is a matter of pragmatism. Bernie Ebbers should share the costs of his trial and punishment if he has some cash lying about. But while there may be moral arguments for dunning the average John Doe, practical considerations suggest we shouldn't.

Posted by Dan_Filler at 01:16 PM | Comments (1) | TrackBack

Straw Men In Advertising

I recently noticed that Rite Aid's prescription bag sports the following headline: "One in two women dies from heart disease. One drugstore is taking a stand." What is Rite Aid suggesting? Have CVS, Walgreens and Osco gone soft on heart disease? Do they condone the illness? It reminds me a bit of Outback's flummoxing motto: "No Rules, Just Right." Just what are the regulatory structures handcuffing the eager steak lover? What does a fellow have to do to get a Porterhouse over at Ruth's Chris?

I'm waiting to see what straw men will be identified next. Will Southwest Airlines boast that their cargo holds are mold-free? Will we learn that Crest does not cause teeth to turn indigo? It's time to have a talk with the marketing folks here at Alabama Law. I'm going to suggest that we stand up against irrational jury verdicts. Take that, Harvard!

Posted by Dan_Filler at 12:11 PM | Comments (3) | TrackBack

Law Clerk Disqualification

There has been some to-do about this story concerning one of Justice Alito's soon-to-be clerks. In brief, the article quotes some academics who have a problem with the selection of Mr. Ciongoli, who is a former clerk of then-Judge Alito and a former aid to then-Attorney General Ashcroft. The article reports that Ciongoli had a hand in creating "the Bush administration's legal strategy after the Sept. 11, 2001 attacks." As a result, some academics (Deborah Rhode is cited) question whether it is proper to have clerks who are perceived as "partisan" or who may be able to influence the way "his own work" is judged by the Court.

Stephen Gillers is quoted as saying that Ciongoli will likely be removed from working on cases that touch on his prior experience, as a way of mitigating the latter fear. I suspect that is in fact what will occur, but I don't know that it should, or that if Alito were to ask for Ciongoli's opinion he would be doing anything the least bit wrong. Is it unethical, for example, for a judge to ask for a clerk's opinion on a case that was decided the prior year by the court on which the clerk was then working? Obviously the current practice (though not always the historical one) is for judges to recuse when they have participated on a case. (There have been many examples of Supreme Court Justices participating in cases interpreting laws they had a hand in drafting or implementing before assuming the Bench.) But isn't the situation different when the only prior involvement is that of a clerk, and the judge would be able to evaluate his advice with a grain of salt?

I know of no statutory restrictions on the ability of clerks to participate in cases because of their prior experience. There is the danger of undue influence, but I think it is minimal, since (1) clerks see it as their job to advise their judges and not to deceive them or push for policy results, (2) judges retain the final decision, and (3) the chance that a judge's opinion will be significantly different from his clerk's is very small, at least as to an issue for which the clerk has developed a reputation.

I can see a large upside to allowing these clerks to participate in cases with which they are familiar. First, it eliminates a large amount of time that would be spent in gaining background information. Second, it is an inestimable advantage to have a clerk who has substantive experience in the field implicated by a particular case. Decisions are more likely to be correct and anticipate potential unintended consequences if the judge has the advice of someone who knows the field. Third, the prior experience is likely to alert the clerk to potential counter-arguments, so the involvement of the clerk may be as likely to fully inform the judge as to bias his understanding of the case.

All this is different, of course, from the situation where a clerk participates in a decision that may have an effect on the clerk's future employment, for example if the clerk's future firm is representing a party in the Court. If anything the problem is more severe in that circumstance, but there (to my knowledge) the involvement of the clerk is left completely within the judge's discretion.

Posted by Mike_Dimino at 10:39 AM | Comments (3) | TrackBack

Take Your Case to the Supreme Court and Get a Website

So you're one of the lucky few, whose case has made it to the U.S. Supreme Court. Indeed, your odds of getting your case to the Supreme Court are no better than winning Powerball these days. Your next step: create a website. You can parlay your luck at getting chosen by the Supreme Court and become a legal celebrity.

Over at the VC, Orin Kerr is collecting information about the websites of litigants in famous cases.

Here's Dudley Hiibel's website. Hiibel was the center of attention in Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004), where the Supreme Court upheld a statute requiring people to identify themselves during a stop. You can check out pictures of Hiibel and his attorneys. And you can even watch a video of the stop that gave rise to his case.

Here's Danny Kyllo's website. Kyllo was the defendant in Kyllo v. United States, 533 U.S. 27 (2001), where the Supreme Court held that the police needed a search warrant in order to use a thermal sensor device to detect heat patterns in people's homes. At the website, you can see pictures of Danny Kyllo's house. You can even buy Kyllo's "just say no to thermal imaging" T-shirt.

Go to Orin's post and check out the comments for more websites.

[The picture above on left is Hiibel and the one on the right is Kyllo.]

Posted by Daniel Solove at 05:04 PM | Comments (2) | TrackBack

Execution By Overdose

California is set to exceute Michael Morales tonight via a lethal overdose of barbiturates. This is hardly the glamorous end that most state legislatures have designed for convicted murderers. In years past, societies used corporal punishment - beatings, whippings, and the like - in response to crime. With the exception of the death penalty, American society has abandoned physical punishment, trading it in for incarceration. In the last century, we've struggled to figure out how to square the act of killing with this rejection of corporal punishment. We've often veered toward technological solutions, presumably because they appear less brutal - less like the destruction of a human body. Unfortunately, gas chambers echoed the tactics of Nazi Germany. Electric chairs just didn't work that well and the explicit pain accompanying death gave lie to our claim that we no longer punish the body. Finally, we moved to lethal injection which fit in with the modern scientific obsession of the age: medicine. Lethal injection looked very advanced, using a three step process of anesthetic, paralytic agent, and heart stopper. It was supposed to be painless, closer to shutting down a machine than killing a person. In practice, however, this sophisticated medical treatment plan was not quite so antisceptic. Like all medicine, sometimes it worked poorly. Sometimes people regained consciousness in the middle of the process and suffered.

Last night, Morales was supposed to be executed by lethal injection. Judge Jeremy Fogel, concerned about the potential cruelty of this approach, required that the state have an anesthesiologist on hand to insure that Morales never regained consciousness. The appointed physicians rebelled, however, and would not assist in the execution. So California has chosen to overdose Morales on barbiturates. There is something very mundane about execution by overdose, in part perhaps because it is so simple that a person could do it himself. And indeed they do, every day. Society has grand hopes for the death penalty. We hope it will dramatically decrease murder rates. We think that it will provide a just response to a horrible crime. We feel it will make the victims, and indeed society at large, whole again. Compared to these grand designs, death by overdose seems very sad and small. Notwithstanding the national drama, Morales will die just like hundreds of other addicts around the country. I hope it gives the victim's family some peace.

Posted by Dan_Filler at 04:45 PM | Comments (4) | TrackBack

The Career Consequences of a Notorious Reputation

The Wall Street Journal today had an article about the now famous email exchange I blogged about a few days ago where Dianna Abdala, a recent law school graduate turned down a job offer from an attorney, William Korman. The article discusses the fact that in some circumstances, people who are getting notorious reputations for being particularly rude or inappropriate aren't suffering any career damage:

We all know what happens when someone commits a particularly embarrassing gaffe in a private email conversation: The message gets forwarded, with each recipient instructing the next to "read from the bottom up." Indeed, this testy exchange skipped off servers as far away as China with a subject line attesting to its journey: "Subject: Fwd: FW: FW: Lawyers Behaving Badly." People also added comments, such as "Great lesson here… on email and how to ruin your career."

But not so fast. Certainly one could turn this into cautionary tale No. 1,346 about what not to commit to private email. But if you haven't learned that lesson yet, you haven't been paying attention -- or, more likely, you don't care that much. "I'm more worried about whether I've left my hair iron on than this little email exchange," [the law school graduate] told me over the phone.

These days, résumé building can be less about preserving a reputation than about acquiring one in the first place. Just ask Omarosa Manigault-Stallworth, the "Apprentice" contestant who famously said, "I'm going to crush my competition, and I'm going to enjoy doing it." She has parlayed her backstabbing into a television career and speaking engagements. "Who knew that being soo bad could be soo good$$!!," the show's Web site quotes her as saying.

"I wouldn't jump to the conclusion that this kind of behavior is naturally rewarded," cautions Paul Argenti, professor of corporate communication at Dartmouth's Tuck School of Business. "But it does lead to success in some realms." And those realms can include the legal profession, sales teams, trading floors, entrepreneurial endeavors -- in other words, the corners of the business world where unmitigated gall can be more marketable than galling. "This could be great for [her] career if you think about it," he says.

Is having one's "unmitigated gall" displayed for the world to see a good thing? I sure hope not. While I certainly don't like to see people live life with a scarlet letter, I don't think they ought to be rewarded for being rude.

Of course, not all notorious reputations should be viewed as problematic. In my blog post, I mentioned perhaps the most famous email from the legal world to circulate throughout cyberspace -- that of the Skadden Arps summer associate. He wrote:

Congrats on the CFA. I'm sure you're about to make VP any day now.

I'm busy doing jack shit. Went to a nice 2hr sushi lunch today at Sushi Zen. Nice place. Spent the rest of the day typing emails and bullshitting with people. Unfortunately, I actually have work to do — I'm on some corp finance deal, under the global head of corp finance, which means I should really peruse these materials and not be a fuckup...

So yeah, Corporate Love hasn't worn off yet... But just give me time..

That email was followed by this one:

I am writing you in regard to an e-mail you received from me earlier today. As I am aware that you opened the message, you probably saw that it was a personal communication that was inadvertently forwarded to the underwriting mailing list. Before it was retracted, it was received by approximately 40 people inside the Firm, about half of whom are partners.

I am thorougly and utterly ashamed and embarassed not only by my behavior, but by the implicit reflection such behavior could have on the Firm. . . .

Although I cannot change what you and the other recipients saw, I do reiterate my sincerest apologies. I do and will take full responsibility for my actions in this incident, and I will do everything I possibly can to correct my mistakes and, more importantly, ensure that this and things like it will not happen again.

The summer associate's email has never struck me as particularly problematic -- just humorous. The summer associate was just talking to a friend and accidentally emailed others in the firm. He was also speaking a bit of truth as well, since summer associate positions are often rather cushy jobs. The law firms are trying to recruit attorneys, so they create a summer experience full of fun and frolic. Then, when one goes there permanently, they work 24/7 and pay back for the summer in spades.

The WSJ article has an epilogue to the story:

Despite that episode, [the summer associate] got a full-time position at Skadden and still works there today, though he is less publicly communicative than before: "I really can't comment on it in any way," he said last week. Added Carol Sprague, director of attorney hiring at Skadden: "He recognized that he had made a mistake and then really worked hard all summer and proved that he was an intelligent, hard-working person."

I'm happy for the Skadden associate. It is nice to know that Skadden was thoughtful enough to still hire him, even after the debacle. He'll never live it down, of course, as he's become part of the annals of law firm lore. But it is nice to know that he didn't suffer severe career consequences. And I'm sure he's no longer having long sushi lunches and doing "jack shit."

Posted by Daniel Solove at 12:08 PM | Comments (1) | TrackBack

Law Review Article Submissions Outside the "Windows"

For law professors submitting law review articles, it has become common knowledge that there are two good times to submit -- in late February/early March when new law review editors are selected (the "March window") or in late August when law review editors return from their summer vacation (the "August window"). There has been a lot of discussion about when, precisely, the sweetest spot in a particular window is, but I want to raise a different question in this post. What are the merits of submitting pieces outside of the two windows?

I assume that submitting a piece in the mid-to-late fall wouldn't be wise, as most journals are nearly full. On the other hand, suppose a top journal has been particularly picky and is left with an open slot or two. Submissions have largely dried up, and then your piece comes in. The editors might think: "Well, it ain't great, but we're not likely to get anything much better at this late juncture, and we need to fill the space, so . . . ." If this is true, then submissions beyond the fall window are a risky gamble, but they could pay off big.

What about submissions during the summer? Suppose one were to send in a piece in late April, or May, or (gasp!) even June or July? What would happen? I wonder about this. The optimist thinks: "This is an ideal time. The journal editors are no longer inundated with millions of submissions, so they can take a bit more time to read the piece. They have already seen a bunch of submissions, so their expectations are more realistic (i.e. they expect lower quality). Therefore, it's a good thing to submit when it isn't rush hour for submissions." The pessimist thinks: "This is a terrible time. The editors will be busy with summer jobs and will not want to bother discussing pieces during the summer. Therefore, they will be less likely to suggest a piece for a full committee read during this time." Who is right, the pessimist or the optimist? Is it better to submit during a window or at another time? Does it matter? And is one window better than the other?

Answers from law review editors will be especially appreciated.

Posted by Daniel Solove at 12:01 AM | Comments (6) | TrackBack

Qualitative Empirical Legal Research

A big welcome to the blogosphere for the new Empirical Legal Research Blog. I applaud the empirical move because I think this sort of research adds substantial value to the understanding of how law functions both internally and within society. As I've suggested in a comment over there, however, I do think that many people in the legal academy have come to conflate the idea of empirical work with quantitative work. As people in coordinate social science disciplines well know (because they, unlike most vanilla JD's, have had formal methodological training), the concept of empirical work includes both quantitative and qualitative work. This is not to say that the quantitative and qualitative camps are always so cozy. Number crunchers sometimes think qualitative work is too squishy or subjective. The qualitative folks sometimes think that the use of numbers creates a false aura of objectivity. But many serious empirical scholars - particularly those trained in recent years - understand that both types of work are necessary to further the grand project of increasing human knowledge. I hope the folks over the new blog take qualitative work seriously. I suspect that in the next few years we'll see qualitative researchers gain a stronger footing within the legal academy. At least I hope so.

Posted by Dan_Filler at 06:02 PM | Comments (5) | TrackBack