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Let Markets Help Criminal Defendants

Dan's interesting post on plea bargaining made explicit the informational inequalities faced by criminal defendants and their lawyers. Indeed, one of the advantages public defenders have over private defense counsel is that they can more easily share information internally about the informal norms that "really" govern the system (judge sentencing practices; which cops tell what stories; which labs are sloppy; etc.) But even so, the instruments of law and order almost always will know more about the facts and the law than the defense, at least until the eve of trial and probably throughout the process.

That there are exceptions (Enron; OJ) proves the rule that informational asymmetry is a significant part of the prosecutor's arsenal - indeed, this asymmetry justifies constitutional attempts to remedy the problem through mandatory discovery procedures. But I'm skeptical that legal rules alone are a panacea to structural problems. Why not try markets?

To be more concrete, the major decision that criminal defendants face is whether or not to plead guilty. The decision depends on a prediction about what will happen at trial. Assuming that defendants are risk averse, they will take pleas when rational actors would not, but generally will go to trial when the expected time served post-trial is less (by some margin) than the actual time proposed in the plea agreement. The problem is that (1) defendants are unsophisticated; (2) defendants' lawyers are incented to push pleas; and (3) neither defendants nor their lawyers have as much information as prosecutors about likely verdicts.

If I were running a public defender service, I'd consider setting up an online prediction market for the conviction of my clients. Prediction markets did a fantastic job in the Enron trial. At the beginning of the trial, the odds of conviction were about 50% for each defendant; by the end, the odds were significantly higher. Now, I can understand why neither defendant would have pled facing a coin-flip's chance at conviction. As I argued at the beginning of the trial:

I'd guess that the reason Skilling and Lay have not pled and Fastow has is demographics. Fastow is a young(ish) man, who can serve significant time and still emerge with earning power. Lay and Skilling don’t have the years left to do the time that the government (apparently) would find appropriate.

But for most criminal defendants, 50% odds would translate into a pretty hefty expected sentence that might make a plea more attractive. And, assuming that such markets would be sufficiently liquid, the predictions generated by traders ought to be both more accurate and less prone to bias than defense counsel's odds. I imagine that the result would be a net decrease in pleas, and in the long term, as prosecutors reacted, less net jail time. That is, the current system is biased by risk aversion and agency problems - as others have observed - toward more jail. This effect may serve the forces of law and order, but it doesn't necessarily serve the search for truth. Why not try something different?

Obvious objections: (1) the idea is ""utterly repugnant to a civilized society"; (2) thin markets are prone to manipulation; (3) incentives would increase to violate the attorney-client privilege; (4) it would look like public defenders are selling out their clients. Of these objections, I'd be most worried about #3.

Incidentally, if you are interested in thinking more about criminal law and the Enron trial, the Conglomerate is hosting what promises to be a great forum on the topic for the next two days. Check it out!

Posted by hoffman at 11:30 PM | Comments (7) | TrackBack

Whistleblowers and Stereotyped Cultural Norms

I’m a little slow to weigh in on this issue, but I just received the latest edition of the ABA Journal. This month, they have a story, “Culture Clash,” by John Gibeaut describing how Sarbanes-Oxley’s whistleblower provisions are causing trouble for foreign cross-listed companies. Ideoblog and Conglomerate have already provided some commentary about the article, which begins as follows:

Americans like to elevate whistleblowers to near folk-hero status, from Daniel Ellsberg, who leaked the Pentagon Papers to Sherron Watkins, who exposed the Enron Corp. financial scandal that in 2002 moved Congress to pass the fraud-busting Sarbanes-Oxley Act. Indeed, Watkins shared Time magazine’s Person of the Year honors in 2002 with World Com Inc. whistleblower Cynthia Cooper and FBI agent Collen Rowley, who accused the bureau of mishandling information on suspected hijacking plotter Zacarias Moussaoui before the Sept. 11 terrorist attacks. Say whistleblower in Germany, however, and the term most likely conjures up memories of the Gestapo, Adolf Hitler’s secret police. In France, the term evokes images of the Vichy regime’s collaboration with the Nazis and of neighbors ratting out one another.

I think that the beginning of the article relies on some flawed cultural stereotypes of both Europeans and Americans. Be that as it may, I would question the author’s proposition that American whistleblowers enjoy some sort of elevated status. About a year and a half ago, I wrote an article about (American) whistleblowers and the Sarbanes-Oxley Act. In the article, I argue that whistleblowers are not being given enough protection. Not under state employment law, and not under Sarbanes-Oxley either. Studies – cited in my article – show in graphic detail that American whistleblowers end up unemployed, broke, divorced, and depressed.

Posted by Miriam_Cherry at 04:53 PM | Comments (3) | TrackBack

Andy Warhol’s Electric Chair

My colleague Bennett Capers (Hofstra) has written a fascinating, and rather disturbing, article at the intersection of law and art. Writing about Andy Warhol’s Electric Chair paintings, he asks a series of probing questions – about who the viewer imagines in the chair, and about death as a public spectacle. In this excerpt, he talks more about presence/absence in the paintings:

In Warhol’s Electric Chair series, just as the condemned is both absent and present, so is the State – and this is comforting. Complicity is shared. No one is to blame. Our system of capital punishment thrives partly because of this (joint) presence and absence. The state is present in the very bureaucracy of execution, from the legislative decision to authorized capital punishment to the judicial sanctioning of death-authorized juries. At the same time, the state creates its own absence in diffusing authority among the cast of participants: legislators, prosecutors, jurors, trial and appellate judges, governors with their ability to grant clemency, the executioner himself. And this is what I mean by absence. To borrow from another commentator, the diffusion allows everyone to say, “I’m only doing my job. I’m just a cog in the wheel. I didn’t kill him.” The room is empty, even though it is full.

The article was recently published by the California Law Review.

Photo Credit: Andy Warhol, Electric Chair I (1971), Warhol Family Museum of Modern Art

Posted by Miriam_Cherry at 04:22 PM | Comments (2) | TrackBack

European Court of Justice Strikes EU-US Agreement on PNR Data

The European Court of Justice dealt a blow yesterday to European Union and U.S. policymakers, with two important judgments on privacy and transatlantic relations. Back in 2004, the European Union and the United States signed an agreement guaranteeing the privacy of European airline passenger data when that data was transferred to the U.S. government. In European Parliament v. Council of the European Union and European Parliament v. Commission of the European Communities, the Court of Justice found that the Europeans did not have the power, under their constitutional rules, to enter into the agreement. Luckily for the airlines and the governments, the Court delayed the effect of its decision until September 30, 2006. Until then, European airlines will keep on being able to transfer their passenger data—and keep on being able to fly into American airports--without having to worry about breaking European privacy law. Afterwards, it could get complicated.

Some background. After the September 11 terrorist attacks, airlines flying into the United States were required to give the U.S. Bureau of Customs and Border Protection (CBP) access to the passenger name records (PNR data) in their computer systems. In other words, the CBP was to be afforded access to the airlines’ databases in London, Rome, Amsterdam, and other European cities to extract PNR data on their American-bound passengers, before those passengers actually touched down in an American airport. The PNR data would be extracted by the CBP and stored in the CBP’s own computer system. This was designed to allow the CBP to check on any terrorist connections of passengers before their arrival in the United States; the information could also be used in future investigations. If European airlines did not comply, they faced stiff U.S. penalties. But, if European airlines did comply, they ran the risk of breaking European privacy laws. As I said in my last post, many European privacy laws require “adequate” protection for private data transferred abroad and the United States is widely viewed as not affording “adequate” protection. Therefore, European airlines that transferred PNR data to the U.S. government risked being prosecuted by their own authorities.

The European Commission (the European Union’s civil service) took the lead in trying to fix the airlines’ dilemma. This it did based on its powers under the European Union’s Data Protection Directive. (Data protection is the European expression for data privacy and a directive is a type of EU law.) Because in my last post I was dealing with the NSA, I didn’t mention this law, which guarantees data privacy when firms and other actors process data for economic purposes. The Directive, passed in 1995 and in force since 1998, standardizes the privacy rules for market actors in all Member States of the European Union.

In February 2003, the European Commission and the CBP began negotiations on an agreement that would guarantee the privacy of European PNR data after it had been collected by the CBP. In spring 2004, the two sides reached an agreement. In May 2004, the Council of Ministers (the intergovernmental body where the Member States take decisions) and the European Commission adopted the decisions necessary to render the PNR agreement effective, internally, for the European Union. And, on May 28, 2004, the EU-U.S. PNR agreement was signed by a representative of the Council and the Secretary of the Department of Homeland Security. At that time, the agreement became effective externally, under international law.

But the European Parliament was not happy with the PNR agreement. Therefore, the Parliament challenged in the European Court of Justice both the Commission’s and the Council’s decisions rendering the agreement effective under internal, European Union law. The lawsuit was driven in large part by institutional politics unrelated to the substance of the agreement. For years, the European Parliament has been asserting, quite successfully, greater powers vis-à-vis the other two branches of EU government (the Council and the Commission); the PNR lawsuit represented a bid for greater powers in the foreign relations field. But setting aside the politics, what were the alleged defects, in EU law, of the PNR agreement? There were numerous legal grounds for the European Parliament’s challenge, most of which went to the inadequate protection of privacy.

In yesterday’s judgments, the Court of Justice found for the European Parliament. Not to cause too much turmoil for the governments and the airlines, the Court of Justice allowed the Commission’s decision—and, therefore, the PNR agreement too--to stay effective until September 30, 2006.

Perhaps more surprising than the outcome was the reasoning of the Court of Justice. (The Court was following the opinion of the Advocate General assigned to the case. Advocate Generals are members of the Court who are responsible for writing a public opinion before cases are decided, advising the Court on the law and the correct outcome.) The Court of Justice did not consider any of the privacy-related claims. Rather, it found that neither the Commission nor the Council had the power to enter into the PNR agreement.

To explain the Court’s logic, I must get into some basic EU law. The European Union has a bizarre constitutional structure that comes out of the fact that it used to be an international organization, now is a quasi-federal polity. It has three “Pillars.” The First Pillar governs the regulation of the common market—things like the rules that apply when a plane takes off from Rome and lands in Munich. This is not an area that goes to the core of national sovereignty, and so the European Union (actually “European Community” when we’re talking about First Pillar) has acquired a lot of power in the First Pillar—and the Member States have lost a lot of power. In the PNR episode, the European institutions acted under the First Pillar: the Commission based its decision on the Data Protection Directive (a market-regulating, First Pillar law) and the Council based its decision on the Data Protection Directive, together with its more general First Pillar powers.

By contrast, the Second and the Third Pillars apply to matters that do go to the core of national sovereignty: defense and other types of foreign policy (Second Pillar) and fighting crime and protecting against internal security threats like terrorism (Third Pillar). The European Union has powers in these areas, but it is hamstrung in various ways by Member States anxious to preserve national sovereignty.

Since the PNR agreement involved private, commercial European air carriers, the Commission and the Council thought they could act under the First Pillar. But the Court of Justice disagreed—essentially the Court said that the European Union would have to act under the Third Pillar or not at all. Here I’m simplifying slightly. What the Court actually said was that since the text of the Data Protection Directive expressly does not cover “[data] processing operations concerning public security . . . and the activities of the State in areas of criminal law” (i.e., matters that fall under the Third Pillar) and since the PNR agreement covers “processing operations concerning public security and the activities of the State in areas of criminal law,” the Commission’s decision could not be based on the Data Protection Directive. It applied a similar logic to annul the Council’s decision. What the Court did not say was that the deeper, Three-Pillar constitutional structure of the European Union, which puts regulation of the market in the First Pillar, cooperation on fighting terrorism in the Third Pillar, barred the European Union from entering into PNR agreement. In this, it was careful not to follow the Advocate General’s opinion to the letter (see his opinion at paras. 140-155). Therefore, the Court left the door open to an agreement based on, not the Data Protection Directive, but another aspect of the First Pillar. But it is extremely difficult to envisage what that might be, since the Data Protection Directive excludes public security and criminal law precisely because of the constitutional Three-Pillar structure. Plus, the Court, in its own analysis, put the transfer of PNR data squarely in the Third Pillar: the Court stated, without reservation that the data transfer covered by that agreement was “not data processing necessary for a supply of services, but data processing regarded as necessary for safeguarding public security and for law enforcement purposes.” Para. 57.

What happens now? Because the basic problem remains: if European airlines refuse the CBP’s request for their PNR data, they face stiff U.S. penalties; if they comply with the CBP’s request, they risk breaking European privacy laws. (But after the Court of Justice’s decision, only national laws and the Council of Europe instruments I described in my earlier post, not EU law, since the Court of Justice said that the Data Protection Directive does not cover security-related data transfers.) As I see it, there are two scenarios. Either the European Union will enter into a similar, now Third-Pillar, agreement with the U.S. or the 25 different data protection laws of the 25 Member States will apply.

Under the Third Pillar, the Council can enter into international agreements. Thus the Council could sign another PNR agreement with the United States, just wearing its Third Pillar hat. But there are many hurdles, as compared to international agreements under the First Pillar. First, all the Member States in the Council must agree—over most Third Pillar matters, each Member State has a right of veto. Second, for such an international agreement to be effective, internally, it must comply with whatever ratification requirements exist in each of the 25 Member States. Third, the Council might very well first have to adopt internal, intra-European legislation on sharing airline data among European police authorities before it can enter into an external agreement with the United States. I’m not an expert on the Second and Third Pillars but that would be my reading of the applicable articles of the Treaty on European Union (arts. 24 and 30) together with the Court of Justice’s so-called ERTA doctrine. Ironically, the only advantage, speed-wise, that a Third Pillar agreement would have over the First Pillar is that the European Parliament would have no powers--it does not have the right to be consulted on proposed international agreements and it does not have standing to challenge such agreements in the Court of Justice. Would the European Union be able to surmount all of these obstacles before September 30? It is not impossible but keep in mind that those long, European summer vacations are coming up.

The second scenario is that the European Union will do nothing and, therefore, national laws would apply. As I alluded to in my last post, national laws are incredibly variable. In countries like the United Kingdom and Italy, air carriers could transfer passenger data for public security purposes without any guarantees of “adequate” data protection. But French and German carriers would probably need such guarantees. Moreover, under the Council of Europe’s Convention 108 and under all national, European laws, air carriers would need a basis in law for transferring PNR data. Without that, the personal data wouldn’t be processed “fairly and lawfully” as required by those instruments. Therefore, in all 25 Member States, national regulations would have to be passed, creating a legal duty for airlines to comply with the CBP’s requests.

These two fairly convoluted scenarios remind me of that famous quip of Henry Kissinger’s: “When I want to speak to Europe, whom do I call?” In the more humdrum area of trade and market regulation, this isn’t so much of a problem anymore. On security-related issues, however, it is still unclear whom the U.S. government should be calling.

Posted by Francesca_Bignami at 03:35 PM | Comments (5) | TrackBack

Snuggly the Security Bear

For some privacy and national security humor, check out this animated cartoon, Snuggly the Security Bear.

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

Six Flags Syndrome: Price Discrimination In Plea Bargaining

Price discrimination occurs when any seller charges two different buyers a different price for the same product. Coupons are one obvious method of price discrimination. Airline advance purchase requirements are another. The term sounds ugly, but it's basic marketing. One major area of price discrimination occurs between sophisticated and unsophisticated consumers. Uninformed car buyers often pay more for their autos than those who arrive with the newest pricing data from Edmunds. And while many web buyers routinely pay full price, others of us consult Coupon Cabin, Mom's View, or XP Bargains before ordering online. We don't do anything special for the discount; we just know enough to check for coupons.

In a blunt admission of price discrimination based on consumer sophistication, Six Flags' VP for ticketing, Steve Brown, stated) "any guest paying full pirce at our parks is probably not doing their homework."

Perhaps all is fair in love and sales, but what about plea bargaining? Would we feel OK if US Attorney Patrick Fitzgerald announced that "anyone pleading to ten years on a marijuana charge probably didn't do his homework"? As a public defender, I often discovered that a DA's "best" offer wasn't on the table initially. I had to request it. Sometimes I provided good reasons for a better deal - I cast the client in a new light, for example, or discussed an extenuating circumstance. But often I simply scrunched up my face and said "come on, you can do better than that"...and he or she would serve up a better offer. I understood the game; as a public defender, I played it every single day.

But it turns out that clients - and more importantly lawyers - are often surprisingly unsophisticated in the negotiation process and will not demand the best posible offer. I'm reminded of a friend who was handling his first serious felony. His client faced a mandatory 6 year bid for the gunpoint robbery, but the DA was offering 10 years. My friend planned to ask for seven years. After we talked, I explained that in my jurisdiction (we were in different states), a first time offender facing these charges would usually receive the mandatory minimum. I encouraged him to ask for six years. And that's exactly what his client got. But if he'd asked for seven years - his initial plan - the client would have served an extra year.

So should prosecutors "take advantage" of unsophisticated opponents by jacking up offers?

Intuitively, it seems to me that it is unfair and inappropriate for a person to serve extra time in prison simply because his or her attorney didn't realize he or she could get a better deal just by asking. My instinct is that DA's should offer the minimum sentence they consider fair, in light of the charges, the costs of proceeding, and the strength of the case. That doesn't mean they shouldn't be open to lowering their offer. But the offer shouldn't drop simply because a lawyer bothers to ask. Instead, prosecutors should soften their offers if they receive new information about the crime, the defendant, or the evidence.

As is probably obvious, there are serious limits to my analysis. No matter how much people like me squawk, DA's will base offers, at least in part, on the quality of defense counsel. When a DA confronts a top defense lawyer, the "price" of settlement will probably drop. It is clearly more efficient for the DA to attempt to engineer a deal in these cases, even if the defendant gets a shorter sentence solely because he or she hired a great attorney. But is efficiency is enough to justify this disparate treatment based on lawyer quality? And is there a difference between making a higher (but non-negotiable) offer to a lousy trial lawyer and making a higher offer to an unsophisticated lawyer, knowing full well you'd improve the deal if the lawyer bothered to press you?

Maybe, at the end of the day, all we have is a prosecutor's eithical duty to seek justice. Can others think of a rules - aspirational, even if not enforceable - that could help avoid what we might call Six Flags Syndrome: defendants taking worse deals because their lawyers didn't bother to seek out a better pirce?

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

Filling Ken Lay's Chair

The Department of Economics at the University of Missouri-Columbia has an opening: the Kenneth L. Lay Chair in International Economics. The Chair was endowed in 1999 but so far there have been no takers. With Ken off to the Big House, the odds of filling the Chair have dropped even further.

Which raises an interesting question: which endowed Chairs (if any) would law professors refuse? The Martha Stewart Chair in Business Ethics? The Fred Phelps Chair in Family Law? The Roger Taney Chair in Law and History?

Would Dan Solove, for example, take the Michael Hayden Chair in Privacy Law? What if it came with a fat salary, no teaching requirements, and a guarantee to increase blogger readership ten fold?

Posted by Jason_Mazzone at 09:45 PM | Comments (2) | TrackBack

Terrorists Among Us

All of the 9/11 hijackers were foreigners, admitted into the United States on non-immigrant visas. Since 9/11, therefore, there has been substantially increased attention to policing the borders—on the theory that terrorists can’t strike here again if they can’t get in.

The British Government has just published its Report of the Official Account of the Bombings in London on 7th July 2005. Much of the report emphasizes how the young suicide bombers who struck the London transit system last summer were second-generation British citizens. They had lived their entire lives in Britain, in ethnically mixed neighborhoods, and attended British schools. One of the bombers had worked as a government bureaucrat and done volunteer work with disadvantaged youth. Another worked with special needs children at a local primary school. A third was an avid sportsman and worked in his father’s fish and chip shop. The men were not well off but nor were they destitute. Their Muslim communities provided them with resources and support.

“Why did they do it?” asks one major section of the government report.

There are no clear answers—nothing in the report that explains why one morning these British men blew themselves up and killed dozens of commuters and injured hundreds more.

According to the report, the men were serious about their religion—but then so are thousands of other members of the very same community. The men spoke out about politics at times but, of course, plenty of people do that.

Some evidence suggests that a local gym the young men attended attracted people with radical views. A local bookstore was rumored to stock radical writings and DVDs. The men liked to go on camping trips—leading to speculation that the trips were training programs. The report finds little significance in any of these things. The men had visited Pakistan with their families. Again, though, many Britons make the very same trip.

The report reaches some chilling conclusions. “The case demonstrates,” it says, “the real difficulty for law enforcement agencies and local communities in identifying potential terrorists.” There was “little in the backgrounds” of the London bombers to “mark them out as particularly vulnerable to radicalization.” On the whole, the men were “well integrated into British society.” While they may have experienced moments of “instability” there was nothing “extraordinary” about their life circumstances.

Posted by Jason_Mazzone at 09:12 PM | Comments (1) | TrackBack

Sex change and inmate rights

And now, from the Department of Most-Likely-to-Make-Your-Conservative-Cousin's-Head-Explode, comes this one. The headline pretty much says it all: "Convicted Killer Asks Judge to Force State to Pay for Sex Change." The news story delivers on the promise of the headline, too:

A man serving a life sentence for the murder of his wife is asking a federal judge to order the state to pay for a sex-change operation for him, saying that denying him the surgery amounts to cruel and unusual punishment. . . . Kosilek sued the Department of Correction for the second time last year, saying that numerous psychiatrists who had examined him -- including two of the DOC's own experts -- had determined that a sex-change operation is "medically necessary." "We ask that gender identity disorder be treated like any other medical condition," said Kosilek's attorney, Frances Cohen.

What do we think of these kinds of accounts? As someone who considers himself a left-leaning moderate, I haven't yet arrived at any consensus on this story.

My first reaction comes from my pragmatic side; it is the cynical observation that these kinds of cases are very, very politically inexpedient. These are the kinds of cases that inflame popular prejudices, and ultimately lead to the scaling back of protections for defendants and prisoners everywhere. We can point to numerous incidents across the country of prisoners assaulted by guards, or kept in horrendous conditions -- yet popular perception on prisoner's rights is likely to be disproportionately skewed towards things like sex changes for convicts. That popular perception hurts prisoners everywhere.

Mr. Kosilek's noisy insistence on receiving a sex change as treatment for his gender identity disorder could well result in conservative legislative reactions, and ultimately less receptive judicial environments for things like habeas claims about more egregious physical abuse of inmates. And if that happens, it strikes me that cases like Mr. Kosilek's result in a net negative for prisoner's rights.

On the other hand, my inner liberal idealist insists, shouldn't I be particularly concerned about the rights most likely to be infringed? What use is a system of prisoners' rights, if it stops short of actually protecting rights that might be controversial? And on the same vein, I'm at least somewhat wary of signing on to anything that looks like a retreat in prisoner's rights. Retreat is seldom good, is it?

Finally, though, my inner conservative speaks, and argues that maybe prisoner's rights are oversold, anyway. Does the Constitution really require a sex change for an inmate? Maybe that's a standard remedy for that disorder in the 90210 zip code, but most people with that disorder get along okay, don't they? Just how gold-plated does our inmate care have to be, anyway? Isn't there some reasonableness cap?

(The inner pragmatist speaks up again here, and wonders how much broad drug-treatment intervention could be financed for the price of one or two costly surgeries).

So I'm not sure where I stand, in the end. I suspect that the news account of the case will result in a few predictably vitriolic and shrill conservative responses, which will be easy to parry and mock. On the other hand, there are at least some valid concerns underlying the conservative critique of high-cost inmate care -- it can't be high-dollar surgeries for everyone everywhere, can it? If the reasonableness line happens to exclude Mr. Kosilek, I doubt for now that I'll be too sad. (Though perhaps my co-bloggers or our commenters can make arguments, one way or another, to convince me otherwise).

Posted by Kaimipono at 08:15 PM | Comments (7) | TrackBack

This Post Will Be Barely Illuminating

Thanks to a reader of my recent paper on puffery, I recently came across the work of Andrew Ward and Lyle Brenner, Accentuate the negative: The positive effects of negative acknowledgment (forthcoming 2006; presentation link here). It is a neat paper, that examines the extent to which we credit messages that contain obvious warnings of their fallibility, and like messengers who introduce themselves with self-deprecation. Obviously, the study of deflation is less developed that that of optimism - and puffery - but it is an odd finding nonetheless that we seem to want any sales message except the unvarnished truth. I wonder if how the law can best take into account this psychological part of consumption. If we feel less cheated by, say, the purchase of stock which has been exposed as partly susceptible to a downturn through strategic pessimism, should the anti-fraud regimes of the '33 and '34 Acts account for this feeling?

More generally, it strikes me on first glance that the negative attribution effect may help to explain otherwise strange corporate events like the success of the self-deflating google IPO. (For Vic F's branding theory, see this post; Ribstein's comments here.)

It also helps to explain the odd persistence of the "shameless self-promotion" tag to law article announcement posts, even when the promotion benefits friends. Bill S., at TOTM, recently lamented this phrase, and said that "I don’t feel at all ashamed of doing this nor do I feel it is unseemly. Hence, I propose we drop the custom of including a “shameless self-promotion” reference when engaging in self-promotion." I think Bill is leaving some money on the table here. Deflation, like puffery, moves flawed products.

Posted by hoffman at 08:15 PM | Comments (1) | TrackBack

Gosh, Those Law Students Say the Darndest Things!

Grading this semester has been multiplied because of Hofstra’s large class size (118 students in my contracts section) and an extra class I was teaching at Touro Law Center. To console those of you who are also still grading, I offer the top funniest paper / exam lines during the time I’ve been teaching:

“Decisions are like snakes, they slip and slide next to morality and justice, changing with time.”

“The common law is like a baby. It grows and grows until someone comes along and stops it.”

“The most impotent doctrine in contracts is lack of consideration.”

And, finally, from a seminar paper that discussed women’s rights in law & literature:

“The feminist movement began climaxing in the mid-1800s, and continued building, with varying levels of excitement, until the 1960s.”

To quote humorist Dave Barry, “I am not making this up!” I realize that I may be encroaching on Reader's Digest territory, but anyone else find some humorous exam lines?

Posted by Miriam_Cherry at 06:56 PM | Comments (5) | TrackBack

Extended Stay

My guest stint has been extended for a couple more weeks (thanks everyone!). You’ll see more from me on employment law, contracts, information markets, some law and literature, and other sundry and assorted topics. Don’t worry, there will be plenty more bad puns too.

Posted by Miriam_Cherry at 06:54 PM | Comments (0) | TrackBack

Starbucks, Meet Jennifer Aniston (Nude)

Dan S. has previously pondered the searches that land visitors to our fair blog. As he noted, Googlers in search of "Jennifer Aniston Nude" seem to arrive frequently to the cite. (What does a steamed up web traveler think, exactly when he - or she - beams on to Concurring Opinions? Where are the babes?)

It turns out that the search that sends the most Googlers to visit one of my entries is "Starbucks Secret Menu" - exactly the words in my post on the subject. The question is: why are they searching for this? Who are these conspiracy theorists, exactly, the ones who log on with the goal of learning more about what surely must exist: a secret menu at Starbucks? Are there other secrets in the menu? If you play the newest Starbucks "Joni Mitchell Chooses Her Favorite Bo Diddley Songs" CD backwards, will you hear her coo "turn me on, dead man?"

And how many of you will have to Google that last phrase just to decode my dated cultural reference?

Posted by Dan_Filler at 12:56 AM | Comments (5) | TrackBack

The NSA Phone Call Database: The European Perspective

Had a European government, instead of the Bush administration, created the NSA’s call database, would that government be in violation of European privacy law? I think so, for the reasons I explore below.

Why should anyone care that the outcome would have been so different under European privacy law? One reason for the comparison with Europe is that it enables us to understand better current developments in American law. It is striking how similar American and European data privacy law was in the early 1970s, how different it is today. The first European database privacy statutes of the 1970s drew on the U.S. Privacy Act of 1974. Alan Westin’s Privacy and Freedom, published in 1967, was read widely by both American and European policymakers. There are many reasons for the divergent paths of the two systems. This latest example of difference highlights one set of reasons: the President’s new constitutional powers in fighting terrorism, post-September 11. Congress, the courts, and the public might very well accept that the NSA program is legal, based on the President’s inherent authority as commander-in-chief. In Europe, that would not be possible.

A more pragmatic reason for caring about the different result under European privacy law is that it could undermine transatlantic cooperation in the fight against terrorism. Some European laws forbid the transfer of public security and law enforcement data to countries without adequate privacy protection. This latest revelation just reinforces the European view that U.S. privacy laws are inadequate—and therefore could make European governments reluctant to turn over information on European citizens to the American government in the fight against terrorism.

The details of the NSA call database are murky. For purposes of my analysis, I’m assuming the following: (1) it was authorized by a secret, executive order, based on the President’s constitutional commander-in-chief powers; (2) the database contains call records—when, for how long, and to which phone numbers the calls were made--of millions of American citizens that are traceable to those citizens; (3) before the program became operative, no government officer independent of the President’s administration had the opportunity to review the program for privacy concerns and, since it has become operative, no independent officer has the power to enforce compliance with basic privacy safeguards.

In Europe, any database of electronic information that can be traced to individuals, including phone records, is considered a possible threat to the fundamental right to private life. For databases created for intelligence and law enforcement purposes, there are two Europe-wide sets of standards: Article 8 of the European Convention of Human Rights on private life and the Council of Europe’s Convention 108 on Personal Data Processing. The European Court of Human Rights has decided a number of telecommunications surveillance and data privacy cases under Article 8. A third set of standards, covering intra-European exchanges of personal information to prevent, investigate, and prosecute crime, is being negotiated in the European Union. All European countries also have their own data protection laws, which set down more precise duties and rights. The ones I’ll be referring to here are the laws of Germany, France, Italy, and the UK.

Under Article 8 of the European Convention on Human Rights, the NSA’s database would have to satisfy three conditions. First, it would have to be authorized by a law that was accessible to the public and that contained precise enough provisions to curb arbitrary government action and to put citizens on notice of possible incursions into their private sphere. Second, the purpose of the interference with privacy would have to be legitimate. Both “national security” and “public safety” count as legitimate purposes. Third, the interference with privacy would have to be proportional. Proportionality turns on two, related inquiries: Is there evidence that the government action can achieve the stated purpose? Is the government action necessary for accomplishing the stated purpose or are there alternative means of accomplishing the same purpose that will burden the right less? The burden of justification on the government, under the proportionality test, varies tremendously, depending on the right at stake and the public interest being pursued. The more important the right, the higher the burden on the government, the more important the public purpose, the lower the burden on the government.

When the privacy right at stake is data privacy, the proportionality investigation is guided by some of the more specific guarantees of Convention 108. For instance, the amount of the data processed should be no more than necessary to accomplish the purpose. Neither should the time during which the data are stored be any longer than necessary to accomplish the purpose. As a special safeguard for the burdened, privacy right, individuals should have the right to check their personal data, to make sure that it is accurate and that, in all other respects too, their personal data is being processed in accordance with the law. Most European countries have also ratified a protocol to the Convention, providing for an independent supervisory authority, and even those that have not ratified the protocol, have such a supervisory authority. In most countries, privacy authorities have advisory powers over proposed legislation, while everywhere they have oversight powers, to ensure compliance. The Convention allows for certain exceptions from its privacy guarantees, including exceptions for national security and law enforcement. However, those exceptions must themselves be based on law and be proportional.

How would the NSA’s database fare under this European privacy law? First, based on European Court of Human Rights’ case law as well as French and German data protection law, I think that the database would fail the requirement of an authorizing law. It does not appear to me that a secret, executive order based on a constitutional conferral of power to the President to serve as “commander in chief” would be good enough. (Of course, the administration’s lawyers might have in mind more precise statutory text as the authority for the database, in which case this analysis could change.) It is neither accessible to the public, nor is it specific enough to curb arbitrary exercises of power and to put citizens on notice of how their government is interfering with their basic rights. What about the Bush administration’s argument that any disclosure of the NSA call program threatens American national security? For, as I mentioned above, the Europeans allow for exceptions based on national security concerns. In my view, that argument would fail, both in the European Court of Human Rights and in national, European courts. Certainly, courts have permitted European governments to keep secret the some of the methods used in surveillance, together with the specific targets of surveillance. (Paul Schwartz has a terrific discussion of some of the German law in his article, German and U.S. Telecommunications Privacy Law, 54 Hastings L.J. 751 (2002-2003). And Verna Zöller provides an informative update in Liberty Dies by Inches, 5 German L. J. 469 (2004).) But I don’t know of any instance in which they have allowed such a massive government program, involving almost entirely national citizens, to go forward without some basis in a reasonably detailed, public law.

The good news for the NSA call program is that it would satisfy the second European legal requirement: national security is, most certainly, a legitimate purpose. Then we get to proportionality. Is a database with the calling records of tens of millions of citizens necessary for fighting terrorism? When making this kind of determination, European courts and privacy officers show considerable deference to their intelligence services. Courts and privacy officers are acutely aware of their limits in understanding how to combat terrorism, as compared to the seasoned professionals in their national intelligence services. But, in Europe, the government would have to make the case—not necessarily in public or in an ordinary court of law—that the data collection was capable of reducing the terrorist threat. The government would also have to consider other types of regulation, less invasive of the private lives of ordinary Americans--say, a database of the telephone records of al Qaeda suspects only. The government would also have to demonstrate that there were privacy-protecting safeguards in place. Again, European laws allow for exceptions based on national security concerns, but, again, I don’t think that those exceptions would apply here. Since we don’t know much about the NSA call program, we don’t know whether it is, in fact, supported by this type of reasoning. On the proportionality issue, therefore, I can’t come to any conclusion.

What about an independent privacy agency? That is certainly absent from the NSA call program. In much of Europe—including Germany (Federal Data Protection Act, section 26) and France (Law No. 78-17, article 11.4 and article 26.I)—this independent agency would have had to be consulted on the NSA program before it became operational. Many things can go wrong when a government collects information on the habits of its citizens, including phone records: phone numbers might be matched to the wrong people, leading the government to suspect ordinary citizens of being covert al Qaeda operatives; an intelligence officer who thinks that his wife is cheating on him might check her phone records; once the phone records get too old to help in the fight against terrorism, they might be passed along to tax fraud investigators or to direct marketers. Consultation of a privacy expert, when a government program is being designed, is an important way of ensuring that the necessary safeguards are in place, before any of these abuses can occur.

Moreover, in all of Europe, an independent privacy agency would have to have the power to ensure that government officers, in running the program, were complying with basic privacy safeguards. Here, even under European laws, there are exceptions for intelligence agencies. For instance, under German law, the Federal Commission for Data Protection does not have jurisdiction over telecommunications surveillance (which, under German law, includes calling records) when conducted by an intelligence agency (Federal Data Protection Act, section 24). But another independent, government body does have the power to order the government to stop illegal surveillance: a special, bi-partisan, parliamentary commission known as the G-10 Commission. Under French law, individuals do not have the right to check, directly, whether the information held on them by security agencies is lawful, but must be able to do so, indirectly, through their national privacy agency (Law 78-17, article 41). Furthermore, under European laws, these exceptions to jurisdiction do not apply to personal data used for law enforcement purposes. This is significant for the NSA program because it is unclear whether the information is being used only by intelligence officers, or by law enforcement agencies too. In sum, under European laws, the NSA program could not be exempted entirely from oversight by an independent government body with the power to investigate and to stop violations of privacy rights.

Now for the bottom line. Why does it matter that the NSA call program would be illegal under European privacy law? That, if any European government tried to do the same thing, it would be breaking the law? As I said at the beginning, I think that the different result under European law is revealing for what it says about current transformations in American law: it underscores the extent to which national security concerns are coming to dominate American law.

There is also a more pragmatic reason for taking European privacy law seriously. The National Security Agency might want information on the calls made by Europeans, in Europe. But because the way it handles private data is so out-of-line with European law, it is increasingly unlikely that the NSA will be able to get call information-- or any other private information for that matter--from European governments.

Let me explain a bit further. In some European countries, private data cannot be transferred to countries without “adequate” privacy safeguards, even if that data is requested for national security purposes. This is the case in Germany, where an exception to the adequacy principle can be made only “for compelling reasons of defence or to discharge supranational or international duties in the field of crisis management or conflict prevention or for humanitarian measures.” (Federal Data Protection Act, section 4b(2)). This is also the case for France, where there is a public security exception to the adequacy principle, but that exception is still subject to a determination that the personal information will be protected in the country of destination (Law No. 78-17, article 69). Furthermore, at the European Union level, a series of laws are being negotiated that would enable police authorities, for purposes of preventing or prosecuting crimes, including terrorism, to freely exchange data like calling records and then transfer that data to their intelligence agencies. These are: the European Parliament and Council Data Retention Directive (adopted in March but not yet in force), the Council Framework Decision on the exchange of information under the principle of availability (under negotiation), and the Council Framework Decision on the protection of personal data (under negotiation). However, under the current version of the privacy part of the package, information like calling records could only be transferred to third countries that ensure “an adequate level of data protection” (Council Framework Decision on the protection of personal data, article 15.1(d)). Therefore, with one exception (article 15.6), national, European police and security agencies would have to deny an NSA request for call records. No wonder that the Americans expressed concern about this provision at a March 2-3, 2006 EU-US meeting.

Under all of these laws, even if privacy is not adequately protected in the destination country, an international agreement can stipulate privacy safeguards for the transferred data, and therefore render the transfer lawful. But the news of secret U.S. surveillance programs has made it more difficult to take this route. How are European governments to trust that an undertaking of an agency like the NSA or the FBI will not be quickly superseded by a secret order issued by the President, based on his constitutional powers? Of course, if that were to occur, European governments would have claims against the United States under international law. But given the weak enforcement mechanisms of international law and changing American surveillance practices, it is unclear whether such an undertaking could serve as a sufficient guarantee of European privacy.

Posted by Francesca_Bignami at 03:51 PM | Comments (20) | TrackBack

Introducing Guest Blogger Francesca Bignami

Joining us for a very brief guest stint is Professor Francesca Bignami of Duke Law School. Francesca writes about international and comparative law issues, and her work focuses on rights and democracy in the European Union.

Francesca receceived has an A.B. from Harvard and Radcliffe Colleges; an M.Sc. from Oxford; and a JD from Yale, where she was an editor of the Yale Law Journal. She clerked for Judge Stephen F. Williams, U.S. Court of Appeals, D.C. Circuit; and served as a stagiare for Advocate General Philippe Léger of the European Court of Justice in Luxembourg. She also was a Fulbright Scholar at the European University Institute.

Francesca is Chair of the Rulemaking Advisory Group of the ABA Project on EU Administrative Law and is on the academic advisory board of the Electronic Privacy Information Center.

Francesca will be visiting us very briefly to post about the NSA surveillance program from an international law perspective. This is a dimension of the NSA surveillance issue that I have not yet seen addressed, and I'm really looking forward to Francesca's insights.

Posted by Daniel Solove at 02:44 PM | Comments (0) | TrackBack

The Election Lottery

Voter turnout in the United States is among the lowest of all democracies. While pointy-headed professors have offered various proposals for increasing turnout at the polls--mandatory voting (as in countries like Australia), internet voting, easier registration, and a national holiday so voters don't have to take time off work--an opthamologist in Arizona has come up with a proposal that could have have mass appeal.

Dr. Mark Osterloh is leading a ballot initiative that would make available a $1 million prize in each election in the state. The prize funds would come from unclaimed state lottery winnings. Upon casting a vote, the voter would have a chance at the loot.

My guess, having seen hordes of people line up for hours for powerball tickets, is that a chance at prize money would bring some people to the polls who would otherwise stay away--but that $1 million is probably too low to have much overall effect.

Posted by Jason_Mazzone at 10:45 AM | Comments (4) | TrackBack

An IPOD Top-10 List, and Other Diversions

Steve Bainbridge recommends that celebrities, politicians, and ordinary mortals create iPOD top-10 lists by accessing their 25-most played category. It is a troublesome metric for me. I wish I, like Nick Horby, spent time thinking about what music I like. But I don't, so my iPOD tells me that I like eclectic, sometimes objectively weak, songs. But in the spirit of the news hole this holiday weekend, my top-10 list follows after the jump. Oh, and I'll throw in a few lively sites that I read in the daily surf to divert you...

My "Top 10" List:

1. New Slang (The Shins)
2. Hurt (Johnny Cash)
3. (Sittin' On The) Dock of the Bay (Otis Reading)
4. I Can See Clearly Now (Jimmy Cliff)
5. Dead Leaves and the Dirty Ground (The White Stripes)
6. The Book of Love (Magnetic Fields)
7. Bitter Tears (Magnetic Fields)
8. Run Out Pon Dem (Sizzla)
9. King Without a Crown (Matisyahu)
10. Feeling Good (Nina Simone)

No, I'm not proud of all of these. But revealed preferences don't lie. I guess Natalie Portman was right about the Shins. And, in the spirit of full disclosure, I'll admit that somewhere in the next 11-25 lurked a Green Day song, something by Kenny Rogers (you can guess what), and something by Howard Shore. Sheesh.

In other news, President Bush made explicit his perception of a connection between the Cold War and the War on Terror. Except that he believes that terrorists do not respond to normal incentive carrots and deterrence sticks:

Today, at the start of a new century, we are again engaged in a war unlike any our nation has fought before -- and like Americans in Truman's day, we are laying the foundations for victory. (Applause.) The enemies we face today are different in many ways from the enemy we faced in the Cold War. In the Cold War, we deterred Soviet aggression through a policy of mutually assured destruction. Unlike the Soviet Union, the terrorist enemies we face today hide in caves and shadows -- and emerge to attack free nations from within. The terrorists have no borders to protect, or capital to defend. They cannot be deterred -- but they will be defeated. (Applause.)

Two comments. First, MAD deterred us too - now, we're left to weak internal controls. Second, in its intra-generational, geographic, and religious scope, this is a grim message. Glenn Greenwald explains the domestic problem here. (See a contrary view of civil life here.)

The Lincoln Hall/Everest climbing story reminds me quite a bit of the Case of the Spelucean Explorers. Assume that Lincoln Hall survives, and further assume that Everest falls within the jurisdiction of a U.S. state. Can Hall sue his team? Can the estate of David Sharpe sue his team? Assume that other climbers, passing Hall who they assumed to be near-death, took air canisters and food from him. Can they be criminally prosecuted?

And finally, a ghost ship has washed ashore in the Barbados. Can Disney refrain from using the tragedy in its advertisements for its next (stale) popcorn thriller? Time will tell.

Posted by hoffman at 12:01 AM | Comments (3) | TrackBack

Best Of Birmingham. Food, That Is.

It's the long weekend, so I thought I'd take the opportunity to co-opt the Co-Op and do what so many of us have always wanted to do: announce our own Best Of list. Since I'll be leaving Alabama in the next couple of months, I thought I'd share some of my own opinions about the good life in Birmingham and beyond. Admittedly, relatively few of our regular readers will be touring the Magic City in the next few weeks. But some will. And a surpsingly number of our visitors arrive via a search engine, rather than their morning web surf routine. So for anyone willing to listen, here are my opinions about food and cheer in Bama.

Best Cafe - La Reunion. I've previously blogged about the virtues of Starbucks in a town like Birmingham. But I gotta tell you: charging a zillion dollars for wireless really steams me. La Reunion is funky, they inexplicably serve H&H bagels (prepared in NYC, cooked by Marcus Specialties in Birmingham, and offered, as far as I can tell, nowhere else in town), and the wireless is gratis. Also, it's across the street from V. Richard's, a gourmet market that offers the city's best weekend breakfast.

Best Cafe Feature Big City Folk Didn't Know Existed - The Starbucks Drive-Thru. Imagine this: a prof on spring break, a sleeping baby in the back seat, a Starbucks drive-thru, and the New York Times. Turn your uber-uncool Sienna van into a mobile cafe. Bukowski never had it so good.

Best Feature of Alabama Mealtime - Unlimited refills on all cold beverages. Virtually everywhere. And all restaurants - even chains - give in to the basic demand of all Alabama diners. Sweet tea. I mean SWEET tea. And yes, Virginia. You can order your tea half sweet, half unsweet. I do it all the time.

Best Sushi - Many people will recoil from the very notion of sushi in Alabama. And I did that too until I accepted that a) I was gonna be here awhile and b) its all flown in from far away anyway. Still, one of the more vexing restaurant phenomena in Birmingham is the standard attachment of sushi bar to Thai restaurant. And while Surin West, arguably the best Thai in Alabama (which is not saying that much), has decent sushi, I'll give the nod to Sekisui. (You've got to visit the website just to hear the painful theme song.) Get this: Sekisui is a MEMPHIS (??!?) sushi chain that's opened up shop in Birmingham. I wonder if Elvis might have been a tad more svelte if he'd dined on a bit of raw albacore once in a while. But no. Always peanut butter and banana.

Best Lox - Sam's Club. Let's face it. I could rename this entry "best reason to move to the northeast." For those lox lovers who find themselves permanently in Birmingham, there's always Noshville. Three hours away, that is.

Best Local Restaurant Chain - Jim N Nicks BBQ. The baby backs are tender and delicious. And the pulled pork can be requested "chopped with extra outside pieces." The city location seems kinda cosmopolitan, but the surburban stores are much more family friendly: the food comes fast, they give you a balloon (and those of you with small kids appreciate how important this is), and the bbq pit smell wafts through the expansive parking lots.

Best Pizza - None. What is it with most cities? Have the chains taken the spirit out of independent pizza makers? Oh for Johns or Grimaldi's in NYC or Gino's East in Chicago. (Yeah, yeah you pointy headed intellectuals - I know about Sally's and Pepe's in New Haven.) In Birmingham, the Atlanta Mellow Mushroom chain is pretty good.

Best Dessert - It's not gourmet, but there's simply nothin' better than an item called the "chocolate bar" from Edgar's Bakery (and also available in Joe Mugg's Cafes around town.) It basically tastes like a chocolate cheesecake bar. And it's the reason why a cup of coffee from Joe Mugg's always seems to land me 600 calories into the drink.

Another Best Dessert - Dean's Cake House Seven Layer Cakes. They're baked in Andalusia (get you some on the way to the beach!) but Western Market in Mountain Brook, among other places, carries them.

Best Bakery - Continental Bakery. I don't have anything particularly snappy to say about this place, or it's neighbor Chez Lulu ("best bistro"), but there is no place that has made me happier to visit. My favorite bread is Pain de Campagne, overpriced but delicious. And the olive tapanade (available both places) is to die for.

Best Challah - Are you starting to get the sense that I love starch? Alas, it's true. One of the oddest things about being a Jew in Birmingham is the paucity of Jews and the abundance of challah options. There are three challah possibilities worth discussing. First, there is the kosher (and surprisingly pareve) Big Sky challah. It's huge and fluffy and sweet and it's a good reason to live in Alabama. (So are their whole wheat/whole oat chocolate chip cookies.) Continental Bakery's challah is one-of-a-kind, a first cousin of brioche. And Browdy's square challah is solid, if not exceptional. Edgar's also bakes a challah, but it can't hold a candle to the chocolate bar.

Best Burger - Try Billy's in English Village and Otey's in Crestline Village. Unlike sushi, beef really requires no editorial commentary. Real food for real Democrats. Say what you want about Howard Dean, but at least he understands this.

Best Peanuts - Peanut Depot. The fact that this relic, dating back about 100 years, still exists is enough to justify a trip. And the nuts are awesome. It has to be the best Birmingham landmark everyone misses.

Best Italian Restaurant - Leonardo's, in Vestavia Hills. Look. This isn't Philly or New York. Or Boston or San Francisco. Or St. Louis. It's not even Atlanta. But their rolls are marinated in garlic oil and you'll probably eat three before you even begin to regret it.

Best Bar - I have little kids. I can barely remember what a bar looks like. Can anyone recommend a babysitter?

Posted by Dan_Filler at 08:53 PM | Comments (8) | TrackBack

Spam. A lot.

We all know that comment spam is a problem for blogs. But just how much of a problem is it?

One data source is the spam-blocking website Akismet. Akismet checks all of the comments at its participating blogs. It uses algorithms to check for spam, and is aided by the collective spam designations of all of its participating websites. As a result, its database may give a good sense of how many comments are spam in the blogosphere in general.

What’s the percentage of blog comments that are spam, according to Akismet? Take a guess, if you’d like, and then click to go below the fold for the answer.

According to Akismet, the percent of spam comments since last October is 91%. This chart, from the Akismet website, provides a visual representation:

Is Akismet exagerating the problem, in order to overstate its own importance? I don't think so myself; those numbers correspond with my general perceptions as a blogger. One notable trend visible in the Akismet chart is the recent spike in spam comments. We've seen that spike here at Co-Op, as we've had to clean up more and more spam comments, and had to increase our filters.

By the way, we know that filters are imperfect. They'll sometimes let through spam, and they'll sometimes register a false positive. Alas, that's life right now, because we just don't have the time to check every one of hundreds or thousands of comments. (If your comment doesn't show, it may have been falsely labeled spam -- shoot one of us an e-mail and we can look into it.)

(FYI, in my experience, the most likely comments to get incorrectly flagged as spam are those that meet a triple whammy: A comment from a first-time commenter, with a hotmail or yahoo (or other easy-sign-up type) e-mail, that contains a lot of links. That's the exact profile of a spam-bot -- they run endless hotmail accounts, they auto-generate names that are all first-time commenters, and they post comments full of links.)

And that's the status of blog spam at the moment. Nine out of ten comments are spam, and it's getting worse -- not fun. So, does anyone have any good recipes for how to use the stuff?

Posted by Kaimipono at 09:31 PM | Comments (1) | TrackBack

Blogging Policies at Work

Speaking of the employment at will rule, (see post directly below), here’s an excerpt from the New York Times about blogging policies at work.

The vast majority of organizations don't have policies in place," said Jennifer Schramm, a workplace trends and forecasting manager at the Society for Human Resource Management in Washington.

The group found last year that only 8 percent of the 404 human resource professionals it polled had blogging policies, while 85 percent did not. (The other 7 percent did not know.)

Ms. Schramm said that is just as bad for the employee as for the employer. "Right now it is tough for individuals to know what is happening because so few organizations have a clear policy about employee blogging," she said.
Of course, as long as there have been managers and underlings, there have been disgruntled workers gabbing around the water cooler or over drinks at happy hour. E-mail and instant messages are merely a quicker way to say, "You wouldn't believe what a jerk my boss is."

Blogging takes the grumbling to another level, but one that makes sense when considering how much of it is going on out there. According to the Pew Internet and American Life Project, about 11 million people have created blogs at one time or another.

A blog and a job don't necessarily have to clash, some bloggers say.

The article goes on to describe how some have bloggers have decided to tone down their blogs, write about subjects other than work, or blogged anonymously. The article also describes how some employees simply don’t care about blogging policies – even if fired, they’ve gone on to make much more money because of the notoriety derived from blogging.

[Hat-Tip: Josh Rosenberg]

Posted by Miriam_Cherry at 11:57 AM | Comments (0) | TrackBack

Harsh Reality: You’re Fired!

So we’re down to the final two of in the latest iteration of Donald Trump’s “The Apprentice.” Ironically, I believe the show has a great deal to teach about the law of the workplace. The show highlights the at-will employment rule, and emphasizes common misunderstandings about the extent of workers’ job security.

Donald Trump's cavalier method of dismissing his would-be underlings at the end of the show is distressing and troubling. In real life, being fired is a traumatic event. The loss of a job almost inevitably results in financial instability and often a diminishment of one's professional and personal identities. To see a firing enacted in such a harsh and casual way should be emotionally difficult to watch. Yet the boardroom discussions and Trump's catch phrase apparently are among the most popular aspects of the show.

When I've asked people – especially my students - why the firing on “The Apprentice” appealed to them, a few themes emerged. Some said that they empathized with Trump, because he was dismissing those who had performed poorly. Others, in a display of schadenfreude, admitted that they were happy to see others dismissed, just as long as it wasn’t them in that situation.

As Professor Pauline Kim (Wash U) has empirically documented, many non-unionized workers (and, presumably, many 'Apprentice' watchers) do not fully realize the extent of their own job insecurity. Often, people believe that if they show up at the office and do their jobs, absent any obvious difficulties with management or economic downturns, their employment will last. They believe what they think the boss has promised them: continued employment for hard work. But that is not the law.

Indeed, while it may be good management practice to document reasons for firing someone, the law does not require it. Under the at-will employment rule -- the law in all jurisdictions but Montana -- an employer may fire an employee for a good reason, a bad reason, or no reason at all. Although federal and state anti-discrimination statutes, whistle-blower laws, and other legal provisions put restraints on an employer's ability to use a bad reason to fire an employee, the underlying at-will regime remains substantially unchanged. The reality of the worker's bargain looks a lot more like Trump's deal.

Altogether, reality TV's portrayal of employment presents a realistically bleak picture for workers. You can work hard, but you still might get fired without notice.

(N.B. For the extended version of this blog post, see my op-ed "Reality at Work," LEGAL TIMES, Oct. 31, 2005).

(Photo Credit: Trump PR shot from Wikipedia)

Posted by Miriam_Cherry at 01:48 AM | Comments (19) | TrackBack

New Study Shows No Marijuana-Lung Cancer Link

According to a story in today's Washington Post, a new NIH-funded study has shown that smoking marijuana does not increase the risk of lung cancer - and may actually reduce it. Since this conflicts with the administration's party line, I wonder whether we'll see various divisions of the government working to supress or otherwise undermine these results. I've