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Reparations within the Rule of Law

At the upcoming reparations conference, I will speak on the topic of reparations within the rule of law. My paper is still (ahem) a work in progress. However, I know the structure of my remarks, and I just turned in my abstract (so that our publicity folks could get to work on the printed materials). The abstract of my presentation is as follows:

Kaimipono David Wenger
Reparations within the Rule of Law

The question of reparations for slavery raises a number of concerns. One important question is whether reparations can fit within the rule of law. This question relates to underlying concerns about who defines the rule of law and what the rule of law includes.

The rule of law is a broadly respected concept in legal discourse, and is viewed as an important element undergirding society’s interaction with the law. A strong rule of law creates several benefits for individuals and for society. The rule of law can serve as a safeguard against certain kinds of tyranny and oppression. In addition, a perception of a robust rule of law lends legitimacy to laws and legal regimes, and streamlines legal experience.

The rule of law as a concept is not always well defined. At its most basic, the concept requires that individual interactions with law be based on application of law rather than arbitrary exercise of power; that laws be equally applied to all individuals; and that laws be knowable and performable. Some influential formulations of the rule of law, such as that offered by A.V. Dicey, follow this basic structure and are almost entirely procedural in nature. Such exclusively procedural formulations are not universally accepted, however, and longstanding debates exist on whether the rule of law is capable of bearing substantive content.

Slavery reparations present special challenges to the rule of law. Reparations potentially involve the transfer of large amounts of money to a class of people – descendants of an original harmed group – who are seeking payment over a century after the initial harm. In addition, the cost of this transfer will necessarily fall on at least some parties who are not morally culpable for the original harm. These aspects of reparations raise complex concerns relating to the rule of law, which should be addressed before any restitution is possible. While these concerns are certainly reasonable, examination of the broader rule of law concerns shows that the greatest offense to the rule of law would arise from not paying reparations.

Reparations are an acknowledgment of the displacement of the rule of law under slavery, a displacement which in turn created a regime of lawlessness and repression. Slavery was only made possible through the removal of rule of law protections as applied to one segment of the population – Blacks. The denial of rule of law protection for Blacks did not end with slavery, but continued for a century or more after slavery’s end. Blacks were denied civil and political rights and meaningful participation in the political process until the civil rights era; even today, they struggle for equal rights.

Given this background, reparations serve as a form of atonement – a crucial signal to the Black community that society wishes to atone for its error and take concrete steps to repair the damaged community. Absent such a signal, the rule of law breach that began with slavery will continue, unhealed. The consequences of the breached rule of law – resentment, distrust of law, a perception that law is beholden only to power – will continue to negatively impact society and undermine faith in the rule of law.

Societal expression of remorse for rule of law breaches – coupled with concrete steps to ameliorate the harm – is a necessary step in repairing the damage done by slavery to the rule of law. Reparations show societal will to set things right following the removal of the rule of law protections for Blacks. They are also a way of affirming that such breach of the rule of law will not recur. Thus, payment of reparations allows society to move forward, and encourages disadvantaged groups to regain confidence in the rule of law. Not only are reparations consistent with the rule of law, they are in fact a product of the rule of law.

Posted by Kaimipono at 06:35 PM | Comments (12) | TrackBack

Details About the Guantanamo Detainees

My former Seton Hall Law School colleague, Mark Denbeaux, has posted a paper on SSRN analyzing systematically details about the Guantanamo Detainees. The stats are quite alarming. According to the paper's abstract:

The media and public fascination with who is detained at Guantanamo and why has been fueled in large measure by the refusal of the Government, on the grounds of national security, to provide much information about the individuals and the charges against them. The information available to date has been anecdotal and erratic, drawn largely from interviews with the few detainees who have been released or from statements or court filings by their attorneys in the pending habeas corpus proceedings that the Government has not declared "classified."

This Report is the first effort to provide a more detailed picture of who the Guantanamo detainees are, how they ended up there, and the purported bases for their enemy combatant designation. The data in this Report is based almost entirely upon the United States Government's own documents. This Report provides a window into the Government's success detaining only those that the President has called "the worst of the worst."

Among the findings of the Report:

1. Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.

2. Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive affiliation with either al Qaeda or the Taliban.

3. The Government has detained numerous persons based on mere affiliations with a large number of groups that in fact, are not on the Department of Homeland Security terrorist watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably. Eight percent are detained because they are deemed "fighters for;" 30% considered "members of;" a large majority - 60% - are detained merely because they are "associated with" a group or groups the Government asserts are terrorist organizations. For 2% of the prisoners, a nexus to any terrorist group is not identified by the Government.

4. Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody. This 86% of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time in which the United States offered large bounties for capture of suspected enemies.

5. Finally, the population of persons deemed not to be enemy combatants - mostly Uighers - are in fact accused of more serious allegations than a great many persons still deemed to be enemy combatants.

Click here to download the paper.

Hat tip: Bainbridge

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

Best Blogging Newspapers

Jay Rosen and his journalism class ranked the best blogging by newspapers. They looked at blogs at the top 100 largest daily newspapers. They used eight factors in their evaluation: ease-of-use and clear navigation; currency (how often the posts were updated); quality of writing, thinking and linking (whether they were written in a blog style and whether they linked beyond their own domains); voice (a personal "captivating" voice, a point of view); comments and reader participation; range and originality; having a page where all newspaper blogs could be accessed and an explanation for what the paper hoped to achieve by blogging; commitment (have permalinks, categories, archives, RSS).

Results:

1. Houston Chronicle
2. Washington Post
3. USA Today
4. St. Petersburg Times
5. Atlanta Journal-Constitution
6. San Antonio Express-News

They called the Houston Chronicle the "runaway choice for top blogging newspaper," and one rater observed:

“This had pretty much everything I was looking for,” wrote Jessing-Butz. “It’s very evident that people read these; they comment on them. The page is easy to find and easy on the eyes. The writing is fun and clear. ” Krase: “The Chronicle makes access to archived blogs easy.”

Basically, it seems to me that many of the criteria boil down to whether a newspaper is creating a real blog or whether it is just creating something that seems like a blog but that is really just a half-hearted effort that doesn't offer many of the features of blogs (comments, categories) or that doesn't follow blogospheric norms (linking outside one's site).

They also produced an interesting chart of the Top 100 newspapers and their blogs. Some other interesting facts:

* 86 out of 100 have blogs.

* Several have numerous blogs. The NJ Star Ledger has about 50 blogs; the Atlanta Journal Constitution has 47 blogs; the Plain Dealer (Cleveland, OH) has over 40 blogs.

* Wall St. Journal - 1 blog; New York Times -- 3 blogs; Washington Post -- 23 blogs.

Hat tip: beSpacific

Posted by Daniel Solove at 10:04 AM | Comments (1) | TrackBack

The Necessity Defense?

You may be interested in reading this article from Hattiesburg American (Miss.) about the Sheriff Billy McGee, who has been charged with "intimidating and impeding a federal officer." According to the article, in the aftermath of Hurricane Katrina, McGee "seized a pair of 18-wheelers full of ice from Camp Shelby without Federal Emergency Management Agency authorization" to obtain ice to preserve the insulin of local residents suffering from diabetes. Seems like a pretty clear cut case of a good necessity defense, but then again, it has been some time since I had criminal law. Maybe our new co-blogger and criminal law expert knows better?

Posted by hoffman at 11:04 PM | Comments (7) | TrackBack

Puffery Link

For those teased by earlier posts, you can now download from SSRN my draft paper, The Best Puffery Article Ever. I'm happy to say that it will be appearing in the Iowa Law Review in a (for our business) really short period of time - late Spring/early Summer. If you have comments on the draft piece, I'd be thrilled to get them. Just send me an email.

Posted by hoffman at 01:38 PM | TrackBack

Entry Level Hiring Report Posted

Professor Solum at Legal Theory Blog has posted Law School Entry Level Hiring Report (2005-06 Hiring Season): Version 1.0. He has a lot of information already but I'm sure he'd appreciate any additional contributions.

Posted by Dan_Filler at 11:37 AM | Comments (0) | TrackBack

Reparations Conference at TJSL

I'm happy to announce an upcoming conference in which I will be a participant. On March 17th and 18th, the conference Taking Reparations Seriously will be held at Thomas Jefferson School of Law. The conference includes a number of exciting speakers (including former Co-Op guest-blogger Al Brophy).

Information on the conference is as follows:

Taking Reparations Seriously

Friday, March 17th, 2006 2:00 - 5:00 PM Room 200 (reception to follow)
Saturday March 18th, 2006 10:00 AM – 3:30 PM

More detailed scheduling information is available online at www.tjsl.edu/reparations.

This conference will bring together experts from around the country to discuss the many issues arising from the debate over reparations for slavery. Conference speakers will discuss slavery and reparations as well as other instances of mass injustice, and how these mass offenses relate to broader themes such as justice, causation, group responsibility, moral culpability, racism, and forgiveness. From “reparations talk” to reparations reality, we invite you to join us as we focus on taking reparations (more) seriously.

This conference will include three panels:

Why Reparations Matter
Jack Greenberg, Columbia Law School
Roy L. Brooks, University of San Diego School of Law
Robert Westley, Tulane Law School
Kaimipono David Wenger, Thomas Jefferson School of Law

Theorizing Reparations
Congressman John Conyers, Jr., Michigan, 14th District
Alfred. L. Brophy, University of Alabama School of Law
Margaret Chon, Seattle University School of Law
Eric J. Miller, St. Louis University School of Law

Perspectives on Reparations
Paul Finkelman, University of Tulsa College of Law
Rebecca Anita Tsosie, Arizona State University College of Law
Linda M. Keller, Thomas Jefferson School of Law
K.J. Greene, Thomas Jefferson School of Law

The conference will be supported in part by the Thomas Jefferson Law Review, the Center for Law and Social Justice, and the Center for Global Legal Studies. Portions of the conference proceedings will be available in the Thomas Jefferson Law Review.

Registration is available online at http://www.tjsl.edu/reparations .

If anyone has any questions about the conference, feel free to ask me through e-mail or in comments.

Posted by Kaimipono at 11:36 AM | Comments (11) | TrackBack

Sexualizing Victims And Offenders

Rick Garnett blogged yesterday about a recent Eighth Circuit opinion in a sex abuse case. The appellate court reversed a trial court's decision to close the courtroom during testimony of children allegedly abused by the defendant. A particularly interesting part of Judge Arnold's short Sixth Amendment decision said:
The government implies in its brief that requiring children to testify in publicin this kind of case could only expose them to voyeuristic or prurient interests.
What did the government mean, exactly? Did it think that the defendant would get sexually excited during trial? Would pedophiles flock to the courthouse to witness the testimony?

I imagine that the government was suggesting that having a child testify about sex has the effect of sexualizing the child. Everyone watching this testimony, intentionally or not, would begin to see the child as a sex object. The government is probably right. Amy Adler has written a compelling piece arguing (in line with Judith Butler) that the criminalization of child pornography transforms images that would not otherwise be seen as sexual into sexual events. She suggests that, once we know child underwear ads might be pornographic, we'll always look at these ads and ask: "is this this is a sexual image?" And of course once we ask that question, we've answered it.

In effect, the mere act of going to trial in a any sex crime case sexualizes the victim. We see that victim in his or her role as sexual object because that is how he or she is presented to us. If the right to a public trial is to have real meaning, Judge Arnold must be right that this phenomenon is no basis for closing a public trial.

This brings to mind an interesting post over at The Smoking Gun. TSG posted a series of mugshots under the heading "Foxy Felons." One such canid, Casey Hicks, has threatened to sue TSG unless it removes her photo. It seems that she believes - based on blog commentary, no less - that TSG readers are using her photo for their own "private sexual gratification." Perhaps Alabama, which is ever mindful of the dangers of sexual gratification, will add mugshots to its existing ban on sexual stimuli.

Posted by Dan_Filler at 12:48 AM | Comments (1) | TrackBack

Racial Separation

Yesterday's NY Times included an article about separate drunk driving courts in Phoenix for Spanish-speakers and Native Americans. I wasn't particularly troubled about having special courts for Spanish speakers. As a practical matter, such courts will operate more quickly and efficiently because they will not need translators. At the same time, it seems likely that the proceedings will be, and will be perceived by to be, fairer. This is because Spanish speakers will presumably understand much more of what is occurring in the courtroom. (For example, defendants may benefit from understanding the proceedings in other cases, as well as from understanding the informal courtroom patter that would otherwise go untranslated.)

Creating special courts for Native Americans is different. On one hand, specialty courts are neither new nor troubling. As I've written, drug courts and mental health courts provide special benefits because the feature judges with specialized knowledge, as well as a more developed support staff trained to address particularly challenging personal problems. There are reasons to believe such courts may reduce recidivism because their sentences are more effective. But why couldn't a specialized drunk-driving court provide that sort of individualized treatment plan for both Native Americans and non-Native Americans?

It seems to me that the only basis for having a separate race-based tribunal is if the use of a general tribunal itself prevents effective treatment. Thus we should ask whether there is something about having a special venue that changes the experience for the defendants. That is, do many Native Americans speak more openly in the Native American court? Do they acknowledge their problems more easily there? Do they follow court orders more frequently in such courts? Do lawyers advocate more aggressively in these courts? Even if the answers are yes, I'm not at all sure that I'd support these race-based courts. There are broad social costs to creating race-segregated courts; it seems far wiser to build a single inclusive tribunal.

On a separate note, I've been thinking a bit about recent happenings at NYU Law. As some others have noted, students at my alma mater are petitioning the Dean for creation of a "minority lounge." The space would be open to all members of the community but according to one student, "it should be understood that this is a place where students of color can go to feel comfortable, to talk without hesitation, to be surrounded by those that understand or are more open to understanding their experience in law school."

At best, I have mixed feelings about this proposal. To the degree that it reflects an energized political community seeking recognition and services, I respect it. I also know that people choose their friends based on a variety of factors, including shared experiences and perspectives. Nothing wrong with that. But New York, and the ever-expanding NYU Law School, have many different spaces for people to gather. If students of color at NYU cannot find existing places to feel comfortable within the building and cannot talk without hesitation in these areas, the law school has a real problem. The administration must figure out how to build an inclusive home for all of its students - whether that means addressing matters of faculty, students, curriculum, or services. I'm not sure that designating a special lounge for students of color is the first step of this project and I fear that it may exacerbate, rather than solve, existing difficulties.

Separate facilities and programs may sometimes be necessary but it seems to me that they require the closest of scrutiny. In my own view, society is generally better off when our institutions are both integrated and inclusive.

UPDATE: Belle Lettre has a thoughtful and substantial analysis of the separate lounge issue over at Law and Letters, which continue here.

Posted by Dan_Filler at 01:11 PM | Comments (7) | TrackBack

Excited To Be Here

After several years watching blogs from the outside, I just wanted to say how excited I am to become a full-timer here at Concurring Opinions. I've had a great time getting comfortable in the format and I'm enjoying having such fabulous fellow bloggers. Dan, Dave and Kaimi have set an exceptionally high bar. I'm not sure whether it will be easier to meet those expectations or to simply diminish them!

I hope that I'll be able to contribute both useful and useless ideas, particularly in areas of criminal law and law and culture. But I also expect to go off-topic with regularity. Thanks to Co-op for inviting me inside. Thanks to everyone who spends time visiting us instead of being productive. And thanks to Al Gore for this fabulous thing, the Internet.

Posted by Dan_Filler at 10:19 AM | Comments (2) | TrackBack

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