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The Death of Secure Flight?

The AP reports that Secure Flight, the elaborate program for using data mining to screen airline passengers, has been abandoned. Ed Felton says it best:

Instead of sticking to this more modest plan, Secure Flight became a vehicle for pie-in-the-sky plans about data mining and automatic identification of terrorists from consumer databases. As the program’s goals grew more ambitious and collided with practical design and deployment challenges, the program lost focus and seemed to have a different rationale and plan from one month to the next.

What happens now is predictable. The program will officially die but will actually be reincarnated with a new name. Congress has directed TSA to implement a program of this general type, so TSA really has no choice but to try again.

The program was originally called CAPPSII, but that was scrapped when it grew too broad and privacy-invasive. The program was then renamed with a nicer-sounding name -- Secure Flight.

So Secure Flight is dead, but it will certainly be reincarnated. Meanwhile, the government has wasted a ton of money (about $150 million) that could have gone to more effective security measures.

How much value do these rather inept passenger screening lists have? Isn't it time the government cut its losses and got smart? Nope . . . that's not our government, which operates like a bad gambler. It'll chase the millions it already lost by frittering away millions more on a program that hasn't really worked and may never work. I bet the program namers are working on a new name as we speak. How about calling it "Money Flight"? Or maybe "Flight of Fancy"?

Hat tip: Michael Zimmer

Related Posts:
1. Solove, Airline Screening List Mathematics
2. Solove, 30,000 Innocent Travelers Flagged on Airline Screening Lists
3. Solove, The Airline Screening Playset: Hours of Fun!
4. Solove, Airport Screening Stories
5. Solove, Airline X-Ray Peep Shows

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

ExpressO or ExpressNo?

It's that season, again, when law profs (and others) spit and polish their newest works, preparing them for delivery to their favorite 50...75...100 law reviews. Colleagues have been dropping by my office with unusual frequency asking me my opinion of ExpressO. (ExpressO is a service that delivers manuscripts to law reviews on behalf of authors - primarily via email.) When I last circulated an article, I used a three-prong strategy: ExpressO to most journals, direct mailing to those that didn't accept ExpressO, and Fed Ex to ten journals I thought particularly ripe for placement.

In the end, all three approaches yielded at least one offer. (I ended up placing the piece in a Fed Ex journal - though I'll never know if my high-rent mailing was a factor in that board's decision.) The experience was successful but yielded little useful data. Some people have expressed the fear that Expresso does not work well for authors using less glammy letterhead. These folks think that members of the academic hoi polloi need to jam hardcopy in front of an editor to get his/her attention. On the other hand, I know several people from solid - but not gourmet - institutions that have done very well with ExpressO. So some questions:

What do you - writers and editors - think of ExpressO?
And particularly student editors, two questions:
What do you do with ExpressO submissions - read them on the computer or print them out?
Do you treat ExpressO submissions differently than manuscripts emailed directly?

Posted by Dan_Filler at 05:09 PM | Comments (1) | TrackBack

Salary Disparities At Boalt

There has been a burst of activity on the University of California faculty salary expose front here, here, here , here, and here. Most exciting for the law porn crown (Playprof?) is the list of top earners among UC law faculty. We discover, in this list, that of the 16 top earning tenured full time faculty at Boalt, all but two are men. Compare that with the overall faculty: 13 of 51 full professors (according to my quick count on the Boalt website) are women. Perhaps this can be explained by seniority and market competition. In any case, I suspect that a few folks - perhaps Kathryn Abrams or Pamela Samuelson - will have some questions for Dean Edley (who is inexplicably not on this list but is listed elsewhere at 280 large per year.)

Posted by Dan_Filler at 01:43 PM | Comments (4) | TrackBack

Man Bites Dog? Rational Discussion About Sex Offenders Begins

I want to amplify Doug Berman's post today about a new statement from the Iowa County Attorney's Association. The group - which as best as I can tell includes the county attorney from each Iowa county - has taken a position opposing Iowa's sex offender residency restrictions. It argues that the state's law prohibiting sex offenders from living within 2000 feet of schools and child care facilities is actually counter-productive. In particular, rather than keeping offenders away from kids, it is both ineffective (most offenses occur against relatives and acquaintances, not strangers) and actively increases risk (by rendering offenders homeless and less subject to tracking). At the same time it imposes additional costs that are either unjustified or increase risk in their own right (such as damaging family structures.) The Association offers some policy alternative they see as a more effective responses to sex offenders. Read the whole statement here.

It is heartening to see rational policy debate creep into what has otherwise been the land of moral panic: regulation of sex offenders. Brutal retaliation against such offenders may make people feel safer as they watch hour after hour of reality TV. There is little evidence of the efficacy of most of these regulations, however, and they exact serious costs.

Posted by Dan_Filler at 03:34 PM | Comments (2) | TrackBack

What's in a Language?

Over at the Glom, I posted on the possible acquisition of Univision Communications, which owns Univision, the Spanish-language channel. This topic got me thinking about the relative utility of learning various foreign languages. Being from Houston, I would have to say that the single most important language in the U.S. is Spanish. (For example, in the market for childcare, non-Spanish speaking buyers are at a definite disadvantage. I'm not saying this to be silly or rude. I'm saying it because it's true.) I never understood why Texas public schools do not require the teaching of Spanish from first grade forward. I know, people in the U.S. tend to think that English is the only necessary language, unlike natives of other countries who learn multiple languages. However, even when Americans believe in learning languages, we tend not to be very practical.

Our public elementary school in Whitefish Bay teaches a foreign language beginning in first grade. I think this is wonderful. However, the language is French. I know, I know, a lot of people have learned French in school. But, other than maybe conversing with someone on your one trip to Paris and learning to speak in "this outrageous accent" a la Monty Python, what good is it doing you now? If we were staying here, we would be making a very big push to change this to Spanish or something else useful. We are now looking at two elementary schools in Champaign. They both teach Spanish and Chinese. These choices seem very smart to me. I took Latin in school, and even though I've never been able to use it in conversation, I think it was helpful as a building block language. The whole SAT thing and all. But I can't vote for French. Hebrew, Sanskrit, any of these are fine. But not French.

So, what language do Co-op readers think should be taught in elementary schools (if any)?

Posted by Christine_Hurt at 12:00 PM | Comments (9) | TrackBack

Branding Eggs

Eggs. Delicious, but hard to tell apart.

That was the problem confronting "The Country Hen Eggs," of Hubbardston, MA. What did they do? First, they made some claims about the "kosherness" of eggs that turned out to contain very little information. But even better (as I discovered this morning when I opened a new pack), they "are the first organic egg with a selenium content claim on [sic] the carton."

What does that mean? Well, inside of the cardboard box was a little insert, which talked to me about the anti-cancer properties of selenium. The insert continued to say that their eggs contain some amounts of the mineral (they don't make a comparative claim), but disclaimed any attempt to make a "medical claim." (Which makes almost no sense.)

In any event, why is this worth blogging about? Because I'm pretty interested in their attempt to build brand loyalty - after purchase - through product claims that are not differentiating. It's as though they are saying: "Buy our eggs. Just like other eggs. But we'll boast a little."

A number of questions come to mind. Primarily, should inside-the-box claims be regulated as advertising (by the FTC and through Lanham Act suits) as a food label (by the FDA and product liability suits) as a warranty (under the UCC) or not at all (the market will clear). What if the claim inside the box were to (falsely) say: "Our eggs are 25% bigger than the average competitor's egg." Since it is inside-the-box, should we be less worried about the consumption distorting effect of the claim, or more worried on the brand-building side? These seem like tough questions.

I should say that notwithstanding the selenium claim, it was a tasty omelet.

Posted by hoffman at 08:25 AM | Comments (1) | TrackBack

Walking While Drunk

A colleague of mine chooses to start her day by reviewing the list of new detainees in the Tucaloosa County Jail. As my prior work indicates - particularly my study of the race effects of Megan's Law - I too have a passion for studying on-line databases of criminals. I thus listen closely as she describes the quirks of the daily intake. Yesterday, she discovered a gentleman who had been booked on the charge of being a Pedestrian Under the Influence of Alcohol (Alabama Code 32-5A-221). Alabama law provides that "a pedestrian who is under the influence of alcohol or any drug to a degree which renders himself a hazard shall not walk or be upon a highway." A highway, in turn, is "the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." Alabama Code 32-1-1.1.

I must admit my experience with motor vehicle offenses is thin (and this offense is under the motor vehicle section of the state code), but this was the first time I'd ever encountered a Walking While Drunk statute. Turns out, they are a standard part of the Uniforn Vehicle Code. Alabama is a little tougher than the folks over at the National Committee on Uniform Traffic Laws and Ordinances. (Query: what individuals choose to join this group for $100?). The Uniform Code provision provides that pedestrians "under the influence of alcohol or any drug to a degree which renders such pedestrian a hazard shall not walk or be upon a highway except on a sidewalk." Alabama has no sidewalk exception.

It looks to me like there might be cases where a sidewalk is part of a highway (i.e., where it is a publicly maintained sidewalk within the boundary way. I'm thinking, for example, of sidewalks on bridges, and perhaps along parks.) In addition, since most Alabma roads are sidewalk-free, pedestrians must often walk on the shoulder. I know it may be a bit of a hazard, sometimes, but I suspect we'd prefer our local drunks to walk, rather than drive, home. Personally, I'll think twice before I quaff a couple of Guinnesses (Rick Garnett has linked to an attractive establishment for this purpose) and stroll back to my humble abode. At minimum, I'll try to stumble along privately maintained sidewalks.

Posted by Dan_Filler at 03:55 PM | Comments (1) | TrackBack

Discussion on Payday Lending at the 'Glom

There is an interesting discussion ongoing at the Conglomerate on the study of payday loans. Ronald Mann, who started the topic, is particularly interested in the interaction between virtual and nonvirtual lenders, and he notes that the e-market offers significantly better rates. Does this discount relate to different costs, or to different income levels? Go check it out.

Posted by hoffman at 03:33 PM | Comments (0) | TrackBack

Which Senator's Staff Is Reading This Entry?

We here at Co-Op sometimes get hits from the Senate Master-At-Arms IP domain. That domain had masked the individual IP addresses of the individual Senate offices. No longer. In a great follow-up to the Wikipedia senate editing story, investigative reporters from Wikinews have apparently cracked the code. (Solove predicted this resolution when the story broke.)

So, staffers of Senator X's office: no more nasty anonymous comments for you! At least that is until the Master-At-Arms randomizes the outcoming address labels. I wonder which side of the aisle will be making that request first?

(Hat Tip: Boing Boing).

Posted by hoffman at 12:10 AM | Comments (4) | TrackBack

In Defense of the Megachurch

I've noticed lately that there are some who use "megachurch" as a derogatory term. I noticed this when I blogged that Ken Lay will be calling as character witnesses two pastors of Houston megachurches. I also noticed that Bernard-Henri Levy, who fancies himself the next Tocqueville, used the term quite condescendingly when talking about how he researched his book on American culture. Coretta Scott King's memorial service was held at a megachurch in suburban Atlanta, much to the annoyance of some onlookers. Why do some people distrust megachurches? I don't. I believe that megachurches serve a very important purpose in modern life, and what follows is a defense of the trend from someone quite outside mainstream Protestantism.

I grew up in the RLDS church (now Community of Christ), which meant that I went to church and grew up with about 50 other people. I knew who my people were. I went to camp with them, played Pictionary with them, and I went to college with them. We could spot each other in any town, anywhere. (I believe this phenomenon is much more widespread with members of the LDS church, but existed also within the RLDS church.) Then, I married a Protestant and we started our 10-year tour of non-RLDS churches. Away from family and church tribe in a big city, I sort of felt untethered. I had no people. Then we started attending one of the smaller megachurches in Houston, and I realized that there was a way to recreate your village, your tribe, in a megachurch.

In a megachurch, you don't just go to services and then go home. But, everyone has a very busy life and schedule, so the urge to commute in and out is practical. But what if your busy life took place at the church campus? Maybe your kids go to school there (some churches have preschools through high school). So, you drop off your kids and you're at the church. Maybe your church has a great work-out facility. And a basketball league. And a book group, coffee shop, prayer group, Bible study, 12-step program, yoga class, etc. If you didn't have a job, you could stay all day. You can do double duty: drop kids off at swimming lessons and go to book group. If you are a stay-at-home mom, you may find that you'd like a part-time job at the preschool, parenting center, health club, or bookstore. Pretty soon, you have created a village within your 4-million resident city.

We had just started to get involved in our church in Houston when we moved to Milwaukee. Milwaukee is a little light on the megachurch trend, being heavily Catholic and Lutheran. However, we have recreated this village in an unlikely place (for us), but in a place intended for that purpose: Jewish Community Centers. JCCs around the country have been doing the same things as megachurches for a really long time. Here, under one roof, let's put all the activities of life so that people can come and stay and be with their village. Our youngest goes to preschool at the JCC, I work out there, the kids swim there and take art classes, I go to Mom's Night Out, and the list is endless. After some remodeling is done, there will be a Starbuck's and a manicurist. If we weren't moving, I might quit my job and just hang out at the JCC all day. That's the point.

Colleges have been trying to create a "home away from home" since their creation. In today's mobile society, adults and their families are in the same position as college freshmen. They want to find a place to hang out and be with people who accept them for who they are and who understand them. Medium-sized, stand-alone churches are constantly striving to "create community" in a world where everyone is busy and disconnected from others in the pew. I think the megachurches (and JCCs before them) are on to something.

Posted by Christine_Hurt at 07:20 PM | Comments (5) | TrackBack

More re-edited movie trailers

A while back, we discussed issues arising from the re-edited Shining trailer. Now making the rounds: A new (and pretty funny) re-edited trailer, Brokeback to the Future. Given the proliferation of editing software (making re-editing easier and better), and the popular reception that the funnier trailers receive, I suspect that re-edited movie trailers are not going away any time soon.

Posted by Kaimipono at 03:18 PM | Comments (1) | TrackBack

On Strategic Planning and the "Vision Thing"

My school is in the midst of developing its strategic plan. As I understand it, strategic planning is the process of figuring out where an institution wants to be at a certain point in the future as well as how to get there. In this effort, we wasted, er, spent a whole Saturday talking about what we want to become. And, of course, we want to be a first-class school, recognized for excellence in teaching, scholarship, and service to the global community. Who doesn't?

I'd like to hear from two groups of readers: First, to those of you academics who have gone through strategic planning in the past, has the process ever induced you to change your individual priorities, or has your school focused attention on achieving a particular goal, to the detriment of others? I.e., does strategic planning frequently lead a school to say, "We are proud of our teachers, but we really want to make a mark with scholarship," or does strategic planning tend just to find a new way of stating a commitment to be all things to all people? And if the former, does that change the way individual faculty members approach their jobs?

Second, do students considering which law school to attend care about these statements? I remember reading statements of this type and all but ignoring them because they made the same unverifiable claims about the quality of teaching. Occasionally certain emphases could be discerned, but that was rare. I may be an exception, though, and I would be interested to hear others' impressions of the importance of these statements from a marketing perspective.

Posted by Mike_Dimino at 09:47 AM | Comments (2) | TrackBack

Why You Should Teach Information Privacy Law

Since now is the time that many new law professors are being hired, I thought I'd re-post an earlier post about teaching information privacy law. When new law professors are hired, there is often a lot of flexibility in what courses they can teach. While the law school will typically want a newly-hired professor to teach one or two "core" courses (first year courses or required courses), other courses are often highly negotiable. So if you want to teach a particular course, sometimes all you have to do is ask for it.

My goal is to get more new professors to think about teaching information privacy law. (I have a casebook in the field, so this is really a thinly-disguised self-plug.)

Information privacy law remains a fairly young field, and it has yet to take hold as a course taught consistently in most law schools. I’m hoping to change all that. So if you're interested in exploring issues involving information technology, criminal procedure, or free speech, here are a few reasons why you should consider adding information privacy law to your course mix:

1. It’s new and fresh. Lots of media attention on privacy law issues these days. Students are very interested in the topic.

2. Lively cases and fascinating issues abound. There’s barely a dull moment in the course. Every topic is interesting; there is no rule against perpetuities to cover!

3. It’s a way to teach fascinating First Amendment, Fourth Amendment, and other constitutional law issues. Often, those wanting to teach in these areas have to wait in line until the course is “released” by professors who already teach it. Getting the First Amendment course, for example, is about as easy as unseating an incumbent in Congress. Information privacy law lets you teach really interesting First Amendment issues and there’s usually not a long succession line to teaching an information privacy law course. Moreover, many law schools already have somebody teaching cyberlaw, and information privacy law covers some incredibly interesting law and information technology issues.

4. The field is growing . . . big time. There are many new jobs in privacy law – jobs at privacy advocacy organizations, most major companies, financial institutions (must have a privacy officer per Gramm-Leach-Bliley Act), health institutions (must have a privacy officer per HIPAA regulations), and the government (DHS privacy office, etc.). Many new laws are being passed regarding privacy, and cases involving these issues are multiplying.

5. The field has some staying power. As long as computers and information remain in fashion, privacy will remain a big issue. It’s not going away . . . the field, that is. Privacy . . . well, that’s a different story.

6. Plenty of material for a three-unit course. You can teach the course with a focus on law enforcement and security issues, or on cyberspace and computer issues, or on media and entertainment issues, or on regulatory issues about healthcare and financial data. Because there is so much material to work with, you can teach the course in many different ways.

7. Great synergies between teaching and scholarship. There’s a lot left to write about in the field, and teaching the course helps tremendously in developing good ideas for scholarship. The community of folks who write in privacy law is wonderful – a really neat group of professors. We love to welcome new folks into this great club.

8. The course is very intellectually rich. There are lots of interesting theoretical issues to ponder. And the theory doesn’t turn off students -- they really dig it. Really!

9. It’s easy to teach. The field is very accessible. Currently, there are many great books, articles, websites, and other resources in the field.

10. I don't have a tenth reason, but I thought that I'd do something to round this list out to ten.

So think about adding information privacy law to your course package. It’s a rewarding and fascinating course. Many law schools still don’t have a course in the field, and it is my hope that someday it will be offered everywhere.

Posted by Daniel Solove at 12:17 AM | Comments (0) | TrackBack

Litigation Lessons at the Enron Trial

Today's testimony in Houston involved an emotional breakdown and some lessons about discovery. Surprisingly, one had nothing to do with the other. On the discovery matter, Judge Lake told the jury that:

"Years ago they gave you a stamp, like a checker uses to stamp a can of peas with," Judge Lake told the jurors. "I guess the original stamp was named for a Mr. Bates."

"Now you know more than you ever wanted to know about this," the judge said as he ended his instructional aside.

Commentators over at the Enron Trial Blog suggested that the Judge was wrong:, "Bates stamps" were really named for the Bates Manufacturing Company (pictured to the right). But the Company was founded by a Norman Benjamin Bates, so I think Judge Lake deserves a break. Thus, the many appellate lawyers watching the trial looking for errors will have to keep looking. Sitting Juror #11, on the other hand, well that's a different story.

Posted by hoffman at 09:07 PM | Comments (4) | TrackBack

Epstein on Google

Richard Epstein criticizes Google's book library feature, at Financial Times:

If Google can unilaterally put this burden on copyright owners, then so can all of its rivals, forcing both publishers and authors to expend valuable resources just to preserve the status quo ante. This “negative option” approach has been roundly rejected in traditional contexts, as with audacious publishers who send notices telling hapless addressees that they’re now subscribers for a year unless they return some opt out notice.

I'll leave it to the IP experts around here to say whether he's right or wrong on the details. If he's right, it doesn't bode too well for Google books.

Posted by Kaimipono at 08:58 PM | Comments (2) | TrackBack

Teaching disturbing law

A friend of mine who is a relatively new professor is teaching some material that includes cases relating to sexual harrassment law. She is mulling over how best to present the material, and she asked me:

I was just reading again over some of the cases assigned to the students. One of the cases in particular reports graphic and disturbing acts (gang rapes, etc.) and language (repeated use of the word "fuck") as part of the factual summary and the discussion of the issues. It occurred to me that I might warn the students about the potentially offensive language and graphic description of sexual acts. What do you think? Should I say anything?

My own reaction is mixed. On the one hand, part of me says that it's fine to just assign the material as is. I can see various reasons for a hard-line approach. Law students are grownups, and I'm not sure that professors should treat them in an overly paternalistic manner. Also, it is hard to teach a class on a subject like sexual harrassment (or criminal law, perhaps) without discussing some disturbing things. Finally, I don't think that a law graduate is prepared to act as an attorney in the field unless she can deal with disturbing fact patterns. This assignment is not gratuitous; these are the reported facts in reported cases.

On the other hand, there are also very good reasons not to be a hard-liner, and I think it's necessary to be sensitive to potential concerns. Some of the students in any class may be victims of rape or abuse; they may have loved ones who have suffered through these ordeals; or they may simply be sensitive to the topic. I think the professor has to be sensitive to those concerns, and handle the material with care. (I've seen professors who did not handle such material with care, and the result was often disastrous).

As far as whether of not she should highlight the issue (my friend's specific concern), I am again of two minds. On the one hand, perhaps the sensitive students would appreciate a warning. On the other hand, for many students, highlighting the issue could have the opposite effect, drawing more attention to lurid details than they deserve. I told her that in my opinion, I would lean towards a short warning myself (given the potential concerns of the more sensitive students), but that I thought she would also be fine if she didn't warn, as long as she treated the material carefully.

However, I have absolutely zero experience in this area -- there are not too many lurid details in Wills and Securities Regulation -- and I feel a bit worried that my response to my friend left out important considerations. I'd like to hear what our readers think, if any wish to weigh in in the comments.

UPDATE: Paul Secunda posted on the same question, and has received a number of great suggestions and comments from his readers. Anyone interested in the topic should check out the thread over at Workplace Prof Blog.

Posted by Kaimipono at 08:13 PM | Comments (5) | TrackBack

A Translation of Gonzales's Answers at the NSA Surveillance Hearings

The NSA surveillance hearings began today with the testimony of Attorney General Gonzales. To save you the time to read through the extensive transcript (here and here), I thought I’d translate some of Gonzales’s remarks for you:

GONZALES: Before going any further, I should make clear what I can discuss today. I am here to explain the department's assessment that the president's terrorist surveillance program is consistent with our laws and the Constitution. I'm not here to discuss the operational details of that program or any other classified activity.

TRANSLATION: I’m here to say absolutely nothing new. I can’t tell you what you need to know to really assess the program. In other words, this will be booooorrriiinnnnggggg. My advice . . . turn off the TV and go watch some paint dry.

GONZALES: It's an early warning system designed for the 21st century. It is the modern equivalent to a scout team, sent ahead to do reconnaissance, or a series of radar outposts designed to detect enemy movements. And as with all wartime operations, speed, agility and secrecy are essential to its success.

TRANSLATION: Remember the robot probe in The Empire Strikes Back? It’s like that.

GONZALES: While the president approved this program to respond to the new threats against us, he also imposed several important safeguards to protect the privacy and the civil liberties of all Americans. . . . As the president has said, if you're talking with Al Qaida, we want to know what you're saying.

TRANSLATION: If you’ve got nothing to hide, then there should be no problem with us listening to you. If you’ve got something to hide, then . . . well . . . we should listen to you.

GONZALES: Presidents throughout our history has authorized the warrantless surveillance of the enemy during wartime, and they have done so in ways far more sweeping than the narrowly targeted terrorist surveillance program authorized by President Bush.

TRANSLATION: They did it too! It ain’t fair to single us out. Yes, they did it before the FISA was passed, but still!

GONZALES: While FISA is appropriate for general foreign intelligence collection, the president made the determination that FISA is not always sufficient for providing the sort of nimble early-warning system we need against Al Qaida. . . . Just as we can't demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the attorney general or a court before taking action, we can't afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive Al Qaida operatives in real time.

TRANSLATION: A simple syllogism. FISA requires judicial oversight. Judicial oversight requires courts. Courts require lawyers. And everybody hates lawyers, right?

GONZALES: To end the program now would be to afford our enemy dangerous and potential deadly new room for operation within our own borders.

TRANSLATION: One word . . . terrorism. ‘Nuff said.

GONZALES: Our enemy is listening. And I cannot help but wonder if they aren't shaking their heads in amazement at the thought that anyone would imperil such a sensitive program by leaking its existence in the first place, and smiling at the prospect that we might now disclose even more or perhaps even unilaterally disarm ourselves of a key tool in the war on terror.

TRANSLATION: In our “democracy,” our government can’t operate in secret and has to explain itself to the people. Why are we being so dumb? The terrorists are laughing at us.

GONZALES: In terms of, "Why not go to the FISA Court?" once the determination was made that neither the Constitution nor FISA prohibited the use of this tool, then the question becomes, for the commander in chief, which of the tools is appropriate given a particular circumstance. . . . What I can say, Senator, is that we are continually looking at ways that we can work with the FISA Court in being more efficient and more effective in fighting the war on terror.

TRANSLATION: Basically, going to the FISA court is a total pain in the ass.

GONZALES: Sir, there is no specific language [in the Authorization to Use Military Force (AUMF)], but neither is there specific language to detain American citizens. And the Supreme Court said that the words "all necessary and appropriate force" means all activities fundamentally incident to waging war.

TRANSLATION: What part of “all” necessary force don’t you understand? If you don’t read “all” to mean “all,” then we can’t detain American citizens indefinitely; we can’t deny them the right to see attorneys; we can’t torture people; and we can’t do many of the things we really really want to do.

GONZALES: I don't know that FISA needs to be amended per se. Because when you think about it, FISA covers much more than international surveillance. It exists even in the peacetime. . . . And so when you're talking about domestic surveillance during peacetime, I think the procedures of FISA, quite frankly, are quite reasonable. And so that's one of the dangers of trying to seek an amendment to FISA is that there are certain parts of FISA that I think provide good protections. And to make an amendment to FISA in order to allow the activities the president has authorized, I'm concerned will jeopardize this program.

TRANSLATION: FISA’s for peacetime. This is war. FISA has provisions for wartime, but we don’t like those. Anyway, let’s talk about amending FISA after the War on Terrorism is over . . . otherwise we jeopardize the program. And if the War on Terrorism ever ends, there won’t be any need to amend FISA, since it works so well in peacetime. Got that?

GONZALES: There may be some in America -- I suspect there are some in America who are saying, "Well, why aren't you -- you know, if you've got reason to believe that you've got two members of Al Qaida talking to each in America, my God, why aren't you listening to their conversations?"

TRANSLATION: Although the FISA framework would allow us to listen to Al Qaida under judicial oversight, I’d rather frame the issue as whether we should be able to listen at all. If Al Qaida’s a talkin’, we should be a listenin', right? Who wouldn’t want that? ‘Nuff said.

Posted by Daniel Solove at 07:49 PM | TrackBack

Apple, iPods, Network Effects & Interoperability

I've enjoyed reading Dave Hoffman's post on the iPod phenomenon and Josh Wright's rejoinder. I wasn't too tempted to jump in until Frank (in the comments) blamed the iPod's success on network effects. Interestingly, Apple has long been the victim of network effects in the personal computer sector. Although I had a Mac computer in 1988, I soon had to switch to IBM clones in order to be able to communicate with co-workers, clients, and courts. By making a product with hardware and software that was not interoperable, even though its product was arguably superior, Apple lost market share to the makers of cheaper computers that all used interoperable operating systems and software. Now, Microsoft Word tries with each new version to come closer to what MacWrite achieved in the 80s and Apple tries to rebound in a world where many people have two computers and technology has allowed some material to go between the two systems.

So, I am interested in the madness behind duplicating this strategy in the mp3 industry of creating a product that stands out but stands alone. One can go to any electronics store and buy a cheaper mp3 player that will use MusicMatch, or one can buy the much more expensive iPod that requires the use of iTunes (unless you have access to someone with a computer science degree). First, why would Apple go down this road again? Second, why is this scenario working better this time? The only difference I can see is the point that Dave makes -- mp3 players, while pricey, are almost disposable. Perhaps network effects are not going to favor the interoperable here over the superior first-mover because the initial outlay is not as substantial. If I'm buying an expensive computer, I want to be able to use it for awhile, communicate with others and possibly resell it on the open market, but if I'm just buying something that lasts a year, I'll buy the cool one. Any other explanations? (Yes, I have an iPod, but our other $150 mp3 player broke twice in one year also.)

Posted by Christine_Hurt at 05:09 PM | Comments (4) | TrackBack

Good Morning!

First of all, thanks to Dan, Dave & Kaimi for inviting me to visit for a short while. I gave Dan a picture that featured my whole family (I'm the female in the green shirt) because Kate Litvak once told me that I should rent out my adorable children to political candidates. The mid-term elections are coming up, so would-be Senators or Govs (no Reps, please) can feel free to explore the possibilities. Have seersucker short pants, will travel.

My blog home is Conglomerate, and I post over there on things corporate and things not-so corporate with Gordon Smith and Vic Fleischer. This week, we have Lisa Fairfax taking our blog for a spin, so go over and check it out. The main corporate topic that has my attention this month is the Enron trial in Houston, which is just starting Week #2 this morning. I will keep all of my Enron thoughts over at the Glom, but as you can see from last week (here, here and here), my thoughts runneth over. That being said, I'm looking forward to stretching my legs over here and blogging a little off-topic for a change. I teach a couple of classes today at my day job at Marquette, but I'll be back to chat a little later.

Posted by Christine_Hurt at 09:33 AM | Comments (1) | TrackBack

The Meaning of "Well Settled Law"

Lawyers use the phrase liberally in their briefs; judges sprinkle their opinions with it. But hardly anyone agrees what it means. The phrase: "well settled law." One of the most interesting exchanges occurred during the Alito hearings over this very phrase:

Ms. Feinstein asked whether Judge Alito did not agree that Roe "was well settled in court."

He said, "It depends on what one means by the term 'well settled.'"

This was followed by an extended back-and-forth and careful parsing of what the phrase may or may not mean to Alito.

It would be a mistake to see Alito's equivocation as merely a product of confusion over terminology. Indeed, Alito's hesitation to accord Roe the status of "well settled law"--he finally said only that it must be accorded "respect" as "very important precedent"--cannot be understood in an internally coherent way.

Alito was willing to treat the principle of racial equality and the principle of "one person, one vote" as well settled law, but each of these principles--like Roe--remains contested in particular contexts such as affirmative action and redistricting.

John Roberts had easily accepted the idea that Roe was "settled law," because much remains contested in application. So why the difference in Alito's strategy in answering Roe-related questions, since he could have just as easily parroted Roberts?

External politics had shifted. In other words, the significance of Alito's equivocation in embracing the phrase as applied to Roe had everything to do with the mobilization of grass roots and elite conservatives, who collectively doomed Harriet Miers' nomination to the High Court. Unlike John Roberts, who (after some clever maneuvering) was picked to replace William Rehnquist, Alito needed to prove that he was no Harriett Miers (i.e., neither neutral nor hostile to movement goals). Alito went to great pains to say that he did not believe that Roe could not be reexamined, that stare decisis was not an "inexorable command," and that he would keep an "open mind" to any argument raised in court. By taking a wider berth around Roe than Roberts, he was signalling to his supporters that he "got" that they saw his replacement of Sandra Day O'Connor as a decisive moment in American history. Hence, no endorsement of Roe, or of Lawerence v. Texas, or of any privacy decision beyond those establishing the right to contraception.

Don't forget: there are many who believe that Clinton's presidency--in which he dismantled welfare "as we know it" and triangulated his way around Washington--was merely a blip in a rather decisive conservative realignment. The only thing that has slowed the conservative movement has been the unpredictability of Anthony Kennedy and Justice O'Connor, neither of whom proved to be consistent friends of movement goals.

All of this goes to show that constitutional language--even the phrase "well settled law"--is entirely permeable to politics. The settlement of precedent is not so much a function of the inherent correctness of a ruling or even of the passage of time since it was handed down; rather it is entirely a matter of the degree of social acceptance of a case. One must pay homage to Brown v. Board and Reynolds v. Sims as icons because of their political-cultural stability. In light of Republican successes at the ballot box and in the courts, Casey is no longer the last word--or even a decisive word--about Roe. Nor, apparently, was Roe the best word on the scope of privacy.

The political scientist Robert Dahl once argued that the Supreme Court was a national policymaker that acted largely in ways that were sympathetic to the agenda of other national elites. Polls suggest that Americans have been consistently divided on abortion, but there is a new institutional configuration at the national level--and among this constituency at least, Roe is more contested than it has ever been in recent years.

Of course, Dahl's theory has always been better at explaining broad institutional patterns than predicting the behavior of individual jurists. It's one thing to be sensitive to external politics surrounding a judicial confirmation fight; it's quite another for such an experience to constrain a Justice's deliberations. Now that he is confirmed, the question remains: as privacy cases make their way to the High Court, will Justice Alito continue to see rapidly shifting political-legal terrain as his answers suggest, or narrow cases to be decided in light of 30+ years of social and institutional acceptance of a legal rule?

Posted by Robert_Tsai at 01:46 AM | Comments (7) | TrackBack

Compilation of Posts on Academic Blogging

Ian Best, a 3L at Ohio State University Law School, has compiled a very comprehensive and helpful repository of blog posts about academic blogging.

An interesting fact about Ian's blog -- he writes:

I’m getting law school credit for blogging. And as far as I know, I’m the first law student to do so.

Maybe I should ask my dean for course relief for blogging. Hmmm. . . .

Posted by Daniel Solove at 12:21 AM | Comments (0) | TrackBack

Welcome to the Blogosphere: Antitrust Review

Please welcome Antitrust Review to the blogosphere. From the introductory post:

Welcome to our new group blog Antitrust Review! Antitrust Review features news and commentary on recent developments in antitrust, along with discussions of classic cases and economic theory. Antitrust Review is the result of an entirely pro-competitive merger between the antitrust and law & economics posts of the Law & Society Weblog and of (Anti-)Trust Me.

The editors of Antitrust Review are:

* David Fischer, antitrust litigator in Washington, DC and editor of (Anti-)Trust Me
* Hanno Kaiser, antitrust lawyer in NYC, adjunct professor at the Benjamin N. Cardozo School of Law, and co-editor of the Law & Society Weblog
* Manfred Gabriel, antitrust lawyer in NYC and co-editor of the Law & Society Weblog
* Dan Crane, assistant professor of law at the Benjamin N. Cardozo School of Law.

Be sure to check out Professor Dan Crane's photo at his website. His dog somehow manages to emerge in his photo, and it is quite funny.

Posted by Daniel Solove at 12:20 AM | Comments (0) | TrackBack

Introducing Guest Blogger Christine Hurt

We are delighted that Christine Hurt will be joining us as a guest for the next few weeks. Christine is a regular blogger at the Conglomerate, a terrific blog about law and business. She’s currently a law professor at Marquette Law School, and she’ll be moving this fall to teach at the University of Illinois Law School.

Christine teaches Business Associations, Mergers & Acquisitions, Corporate Finance, Torts, and a seminar on the Ethics of Business.

Prior to becoming a law professor, Christine practiced corporate law in Houston, Texas at Baker Botts, LLP and Skadden, Arps, Slate, Meagher & Flom, LLP. She also served as the Director of Legal Research and Writing at the University of Houston Law Center for four years.

Christine has written a number of articles, including: Moral Hazard and the Initial Public Offering, 25 Cardozo L. Rev. 711 (2005); Counselor, Gatekeeper, Shareholder, Thief: Why Attorneys Who Invest in Their Clients in a Post-Enron World Are 'Selling Out,' Not 'Buying In, 64 Ohio St. L.J. 897 (2005); and Network Effects and Legal Citation: How Antitrust Theory Predicts Who Will Build a Better Bluebook Mousetrap in the Age of Electronic Mice, 87 Iowa L. Rev. 1257 (2002).

She has two new articles which will be published shortly: Regulating Public Morals and Private Markets: Online Securities Trading, Internet Gambling and the Speculation Paradox, forthcoming B.U. L. Rev. (2005); What Google Can't Tell Us About Internet Auctions (And What It Can), forthcoming U. Toledo L. Rev.

Please give Christine a warm welcome.

Posted by Daniel Solove at 12:04 AM | Comments (0) | TrackBack

Google's PageRank and Google's Justice System

Google doesn't look kindly upon attempts to game its PageRank system. Google PageRank is the way Google determines what order to display search results. The higher a page's rank is, the higher up the page appears in a search results list.

According to Google:

PageRank performs an objective measurement of the importance of web pages by solving an equation of more than 500 million variables and 2 billion terms. Instead of counting direct links, PageRank interprets a link from Page A to Page B as a vote for Page B by Page A. PageRank then assesses a page's importance by the number of votes it receives.

PageRank also considers the importance of each page that casts a vote, as votes from some pages are considered to have greater value, thus giving the linked page greater value. Important pages receive a higher PageRank and appear at the top of the search results. Google's technology uses the collective intelligence of the web to determine a page's importance. There is no human involvement or manipulation of results, which is why users have come to trust Google as a source of objective information untainted by paid placement.

What happens when a website tries to game Google's PageRank system? Philipp Lenssen has an interesting post about one such case over at Google Blogoscoped:

From what it looks like, the German websites of car maker BMW have been kicked out of the Google index. BMW.de at this time has a PageRank of 0. A search for BMW Germany, which only days ago yielded BMW.de as a top result, now doesn’t show any sign of BMW.de at all. Instead, BMW.com – BMW’s international site – is on top for this search.

The reason for the ban is likely to be that the BMW websites have been caught employing a technique used by black-hat search engine optimizers: doorway pages. German and international bloggers last week were quick to spread the news.

As you may know, a doorway page is stuffed full of keywords that the site feels a need to be optimized for; however, as opposed to real pages, this doorway is only displayed to the Googlebot. Human visitors will be immediately redirected to another page upon visit. And that’s exactly what happened at BMW.de, as reported Wednesday.

I wonder whether an offending website can ever get reinstated. Or is the penalty one of permanent banishment?

Posted by Daniel Solove at 02:43 AM | Comments (6) | TrackBack

Good News from Weare, N.H.

You may remember some time ago after the Supreme Court announced its unsurprising ruling in Kelo v. New London, that a group of protestors, led by Logan Darrow Clements, began a publicity campaign to seize Justice Souter's home in Weare in retaliation for his vote as a part of the five-justice majority in the case. Law Professor Glenn Reynolds encouraged the effort, although Randy Barnett and others were more circumspect. I took the whole thing pretty seriously, and earned a counter-post from Eugene Volokh, who thought that the Clements campaign was protected by the First Amendment even if he was attempting to retaliate against a Justice for acts in his official capacity.

In any event, the citizens of Weare, N.H., rejected Clements' campaign over the weekend. By a vote of 94-59, they inserted a "not" in Clements' proposal, making it a dead-letter. Then, apparently, they passed a ballot measure (to be voted on next month) that will petition the state government to make land seizure more rare.

Clements, of course, isn't done with his publicity campaign.

Clements says altering the article to essentially negate its purpose is unethical and unconstitutional. He says the selectmen misled the voters at the meeting by saying the article was illegal and could spark a lawsuit . . . Clements said he was considering filing a lawsuit.

And so this terrific use of taxpayer time will continue.

Posted by hoffman at 12:00 AM | Comments (0) | TrackBack