Archive for May, 2006
Harsh Reality: You’re Fired!
posted by Miriam Cherry
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.
May 26, 2006 at 1:48 am
Posted in: Culture, Current Events, Employment Law
Print This Post
19 Comments
New Study Shows No Marijuana-Lung Cancer Link
posted by Dan Filler
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 previously blogged about the way the FDA has deceptively reported marijuana research.
There is little question that using marijuana, or other recreational drugs, is rarely a healthy life choice. This new research would not change my own view that smoking anything is dangerous. But since the administration has repeatedly worked to suppress or undermine data that it dislikes, I feel a sense of dread about how it will handle this surprising outcome. Will the researchers lose their grants or get blacklisted? Will the DOJ seek to fund a study specifically designed to undermine this data (incorporating any necessary methodological flaws)? Will the FDA follow its prior form, and issue a press release denying the study ever happened? Or will this information simply be deleted from every federal publication that otherwise documents new health research?
And was I always this cynical?
May 26, 2006 at 12:08 am
Posted in: Uncategorized
Print This Post
15 Comments
Supreme Court Minimalism And Its Effects On Lower Courts
posted by Dan Filler
Cass Sunstein blogged and opined yesterday on Justice Roberts’ Georgetown Law commencement speech. The Chief argued that there were clear benefits to consensus, or near-consensus, in Supreme Court decisions. As a result, he argued for judicial minimalism because “the broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground”. He thus concluded that “if it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more.”
Sunstein seems to approve of this view, on broader social grounds. He contends that minimalism “tries to avoid taking a stand on the most controversial questions and thus shows respect for people with reasonable competing views” and adds that “narrow rulings help to promote a key goal of societies that are both diverse and free: to make agreement possible where agreement is necessary, while also making agreement unnecessary where agreement is not possible.”
The cost to minimalism, which Sunstein points out, is that lower courts lack clarity on the law. A 6-3 vote may ruffle more feathers, but at least the lower courts have greater guidance for future cases. But there is another important implication to deciding cases on very narrow grounds: federal courts will increasingly produce circuit splits. And state courts will similarly diverge in their interpretation of federal law.
When the Supreme Court gives broad guidance, lower courts can better predict the “proper” answer to questions outside the narrow facts considered by the Court in the particular case. Lacking such guidance, lower courts will often reach differing conclusions on the scores of subissues that lay just beneath the surface of any Court opinion. The problem is that, because the Supreme Court hears so few cases, many of these disagreements will remain in place for extended periods. Thus, courts reviewing death sentences in Missouri may have a very different concept of “mental retardation” than courts in Florida. This despite the fact that, according the the Supremes, it is unconstitutional to execute a person with mental retardation.
May 26, 2006 at 12:00 am
Posted in: Supreme Court
Print This Post
3 Comments
Skilling And Lay Off To The Pokey
posted by Dan Filler
It appears that a Houston jury was not particularly sympathetic to these gentlemen, convicting them of most charges. Of course, business criminals get time to get their lives together before heading to prison. They’ll be sentenced in September and remain free until then.
May 25, 2006 at 12:47 pm
Posted in: Corporate Law
Print This Post
One Comment
The Wonders of Law Review Cover Art
posted by Miriam Cherry
Recently I’ve been sent the reprints of several completed articles. I’ve also been cleaning and packing my office to get ready for my move to California and have rediscovered some of my old reprints.
Now, I’m no art critic, but when I travel, I do like to go to art museums. And, I have to admit that I’m somewhat underwhelmed with the quality of the law review cover art.
Granted, this was an unscientific survey of what I had lying around in my office. Maybe some of the law reviews that have yet to accept my articles have a large art budget (but I’m doubtful).
Here’s what I found:
White and red, with a line drawing of what I think is a law school building.
Green and white, with a line drawing of what I think is the law school building, but which oddly resembles a giant tortoise.
Navy Background with the school’s seal.
Gray with navy printing. No graphics.
Navy with gray printing. No graphics.
All pretty standard, and all pretty dull. Sooooo… you tell me. What’s the coolest law review cover out there? Does your school’s journal have the school mascot printed on it? Is it purple and chartreuse? Or, perhaps you will tell me that I am completely wrong, and it is the “understated” nature of the law review cover that is part of its appeal.
May 25, 2006 at 1:22 am
Posted in: Law School, Law School (Law Reviews)
Print This Post
13 Comments
Setting the Bar, and the Limits of Empirical Research
posted by Dave Hoffman
Larry Ribstein and Jonathan Wilson are debating the merits of a strong, exclusionary, state bar.
Wilson’s position is pro-Bar:
Deregulating lawyers as punishment or retribution for a profession that has lost its way would be a recipe for disaster. Deregulating the practice of law would open the floodgates to fraud of every conceivable variety and would only compound the problems that the readers of these pages see in our civil justice system.
Ribstein, naturally, is pro-market:
Big law firms provide a strong reputational “bond” . . . Lawyers can be certified by private organizations, including existing bar associations, which can compete with each other by earning reputations for reliability. . . .We could have stricter pleading rules, or require losers to pay winners’ fees. Or how about this: let anybody into court, but adopt a loser pays rule for parties that come into court represented by anything less than a lawyer with the highest possible trial certificate . . . Even if only licensing would effectively deal with this problem, the licensing scheme should be designed specifically to protect the courts. Instead of requiring the same all-purpose license to handle a real estate transaction and to prosecute a billion-dollar class action, we could have a special licensing law for courtroom practice, backed by tight regulation of trial lawyers’ conduct – something like the traditional barrister/solicitor distinction in the UK.
Josh Wright has picked up the thread of the discussion at TOTM, and suggests that empirical evidence would inform this debate. Unfortunately, as both Larry and he note, there is a paucity of useful studies on point:
If I recall, the Federal Trade Commission has recently been involved in some advocacy efforts in favor of limiting the scope of unauthorized practice of law statutes. My sense is that a number of states must have relaxed unauthorized practice of law restrictions (I think Arizona is one), or similarly relaxed restrictions on lawyer licensing, such that one could directly test the impact of these restrictions on consumers in terms of prices and quality of service. There must be work on this somewhere.
Solove and I have gone around on this question before (see here for the powerful pro-licensing position, and here and here for Solove’s “response”).
Generally, I like Josh’s intuition. It would be quite useful to look to Arizona, or other natural experiments, to help us to answer the problem of the utility of the Bar Exam and other licensing barriers. Surely, there is no reason in the abstract to preserve an ancient system that keeps lawyer fees artificially high, diverts millions of dollars from law students to Barbri, and causes no end of mental anguish simply because it provides a new jurisprudential lens!
But I’m quite skeptical that this is an answerable question, at least in the short term. My thinking is informed somewhat by the new Malcolm Gladwell New Yorker essay about basketball. Although Gladwell extols the virtues of statistical analysis (instead of anecdote, judgment, and valuing the joy of watching Allen Iverson triumph despite his height), the lesson I took from the piece was that:
Most tasks that professionals perform . . . are surprisingly hard to evaluate. Suppose that we wanted to measure something in the real world, like the relative skill of New York City’s heart surgeons. One obvious way would be to compare the mortality rates of the patients on whom they operate—except that substandard care isn’t necessarily fatal, so a more accurate measure might be how quickly patients get better or how few complications they have after surgery. But recovery time is a function as well of how a patient is treated in the intensive-care unit, which reflects the capabilities not just of the doctor but of the nurses in the I.C.U. So now we have to adjust for nurse quality in our assessment of surgeon quality. We’d also better adjust for how sick the patients were in the first place, and since well-regarded surgeons often treat the most difficult cases, the best surgeons might well have the poorest patient recovery rates. In order to measure something you thought was fairly straightforward, you really have to take into account a series of things that aren’t so straightforward.
I know how I would test the direct cost of legal service in Pennsylvania, and I’ve no doubt that it would go down if I (by fiat) abolished the state bar. But I have no good idea of how we can measure lawyer “quality”. To take something as obvious as criminal defense, some really good public defenders will lose every case for a year, but take comfort in having not lost on the top count of a single indictment. Saying that a public defender who went 0 for 50 in 2005 was a less “good” attorney than a prosecutor who went 50-0 would be a real problem. Facts drive litigation, and make empirical investigation of lawyer quality as a quantitative matter hard. And that is for attorneys who perform in public. How do you evaluate the relative strength of deal counsel on a gross level? Count the typos in the document? Talk with the business folks, and ask who got in the way less? [Obviously, deal counsel can be very good and very bad: the point is we need metrics that are easily coded by, say, research assistants.]
So here is the question for our readers. Can you design an empirical project that measures both litigation and transactional practice quality as a function of licensing?
May 25, 2006 at 12:18 am
Posted in: Consumer Protection Law, Empirical Analysis of Law, First Amendment, Law Practice, Legal Ethics, Sociology of Law
Print This Post
8 Comments
Republicans Offer To Stop Spamming – For A Price
posted by Dan Filler
At some point in the past, I provided my email address to a either the Republican Party or a Republican candidate. As a result, I receive regular email correspondence from the RNC. I don’t want to say that the party is maxing out my storage capacity, but they never let me forget that they NEED MY HELP. It seems that the Party has become aware that many people – even fans of the RNC – are getting tired of all this spam. So in an email from RNC Chairman Ken Mehlman, entitled Do We Mail You Too Much, the party offers up this juicy deal:
If you’d like to receive less mail, join Grow Our Party Funds.
Recently, I sent you a message about Grow Our Party Funds, the RNC’s newest membership program, which gives you the chance to support our party with a small, automatic monthly contribution of $50, $25, $15, or whatever you can afford. If you join Grow Our Party Funds for $50, $25, or $15 today, I will make you this pledge: you will stop receiving mail from us, except for members-only thank you gifts, for however long you remain a Fund-holder.
Even if you don’t normally contribute online, please consider supporting Grow Our Party Funds with a monthly commitment of $50, $25, or $15. It’s the one contribution you’ll make that will build our party, direct more money to critical grassroots programs, and reduce mailbox clutter at the same time.
I can’t imagine that any legit business in America would have the gall to send this “offer”. Is it really good politics for the RNC?
May 25, 2006 at 12:00 am
Posted in: Politics
Print This Post
3 Comments
U. Ilinois College of Law’s Website Features Its Bloggers
posted by Daniel Solove
The University of Illinois College of Law’s website now prominently features its professor bloggers — a link for blogs on the website’s front page. When you have Larry Ribstein, Larry Solum, Christine Hurt, and Linda Beale as your bloggers, that’s something to brag about. The school even has a page with an RSS feed of posts by the school’s bloggers.
This is very cool — I’m all for law schools bestowing attention, praise, and lots and lots of money on their blogging professors. But I do wonder, with regard to the use of the RSS on its website, whether the law school is assuming any risk of liability for the posts of its bloggers.
Hat tip: Dan Markel
May 24, 2006 at 7:08 pm
Posted in: Blogging, Law School
Print This Post
No Comments
Immigration and Worker Owned Businesses
posted by Miriam Cherry
Last week, I posted my article, Decentering the Firm: The Limited Liability Company and Low Wage Immigrant Women Workers, 39 U.C. Davis L. Rev. 787 (2006) to SSRN.
In the article, I look at the low-wage jobs held by many immigrant women workers and conclude that part of the reason why so many of these jobs – often in positions such as nannies and housecleaners – are paid so poorly and are so exploitative – is because of the intersection between several types of oppression: gender, ethnicity, race, and immigration status.
When one takes a job in the underground economy, many of the typical benefits that we think of as being associated with work simply don’t apply. Obviously, the situation is worse for undocumented workers who are hesitant to enforce their rights (for fear of being deported), and because they may not even be able to receive any remedies (the Hoffman Plastics precedent).
As a – partial – solution to this problem, I talk about re-organizing these types of work, eliminating the intermediary who normally sets up the work and takes a profit, and transforming the workers into owners who are members of an LLC. This allows for collective benefits – such as health insurance and workers’ compensation – and allows for the LLC to pay taxes, so that if a worker is able to regularize their immigration status, they will not have tax problems.
I wrote this piece months before the proposals for immigration reform came to the forefront. Although the article assumes the legal status quo, worker-owned businesses could still have an important role to play in the future (regardless of what happens with the immigration bill). I’m glad that I have the opportunity to blog about these issues – it gives me a good way to follow up on my scholarship.
May 24, 2006 at 3:55 pm
Posted in: Employment Law
Print This Post
4 Comments
Labor and Employment Law Conference
posted by Miriam Cherry
Marquette University Law School will host the 2006 Colloquium on Current Scholarship in Labor and Employment Law on Friday, October 27, 2006. From the conference website:
The Colloquium offers an opportunity for labor and employment law scholars from around the country to present their works in progress or recent scholarship, to get feedback from their colleagues, and to have a chance to meet and interact with those who are also teaching and researching in the labor and employment law area. Although all participants are encouraged to present their scholarship, one need not present in order to attend.
More here, or to register, click here. The conference, interestingly, is the result of a blog post by Scott Moss (Marquette) and responses to that blog post from Paul Secunda (Ole Miss) and Joe Slater (U. Toledo).
May 24, 2006 at 3:38 pm
Posted in: Conferences, Employment Law
Print This Post
No Comments
Constitutional Law: First Year or Second?
posted by Jason Mazzone
Is it better for students to take the basic course in constitutional law in their first year or their second year of law school?
At some schools, like mine, Constitutional Law is a required first-year course. Other schools save Constitutional Law until the second year (and at some, including Harvard, it is optional).
I see benefits to each choice. My first year students tell me they find Constitutional Law the most difficult of their courses. (I’m confident it’s not–or not only–my teaching.)
By their second year, students are less anxious. They are more familiar with legal jargon and with reading cases. They are better at distilling points and taking notes. They write better. They know where to turn for help. So second-year students who read Marbury v. Madison for the first day of class (or, in my class, the second day—we start the first day with the text of the Constitution and then Roe v. Wade) are not likely to be scared off by talk about writs of mandamus, William Marbury’s commission, and the Judiciary Act.
On the other hand, first year students are enthusiastic, diligent and open-minded. They read the cases and talk passionately about them. They come to office hours and ask for review sessions. They post comments on the web discussion board. Many of them came to law school to talk about con law issues (at least the issues involving individual rights). Taking basic Constitutional Law early means students have the necessary background for more advanced courses in the field and they can appreciate constitutional law implications that arise in other subject areas. Many students in their second year want to get started right away on law review notes or papers on constitutional law issues.
I am interested in hearing comments from our readers. Do professors prefer to teach Constitutional Law to first year or second year students? When do students think they should take Constitutional Law? Comments open.
May 23, 2006 at 10:20 pm
Posted in: Law School
Print This Post
12 Comments
Is There a Good Response to the “Nothing to Hide” Argument?
posted by Daniel Solove
One of the most common attitudes of those unconcerned about government surveillance or privacy invasions is “I’ve got nothing to hide.” I was talking the issue over one day with a few colleagues in my field, and we all agreed that thus far, those emphasizing the value of privacy had not been able to articulate an answer to the “nothing to hide” argument that would really register with people in the general public. In a thoughtful essay in Wired (cross posted at his blog), Bruce Schneier seeks to develop a response to this argument:
The most common retort against privacy advocates — by those in favor of ID checks, cameras, databases, data mining and other wholesale surveillance measures — is this line: “If you aren’t doing anything wrong, what do you have to hide?”
Some clever answers: “If I’m not doing anything wrong, then you have no cause to watch me.” “Because the government gets to define what’s wrong, and they keep changing the definition.” “Because you might do something wrong with my information.” My problem with quips like these — as right as they are — is that they accept the premise that privacy is about hiding a wrong. It’s not. Privacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect.
As a pragmatist, I’m generally unconvinced by inherent rights talk. But Schneier goes on to discuss a reason for restricting government surveillance that I do agree with — ensuring that government power is appropriately checked, monitored, and limited from potential abuse.
Another argument is that if you look hard enough at someone’s life, in the words of playwright Friedrich Durrenmatt, “a crime can always be found.” With the infinite tangle of criminal laws in this country, Durrenmatt’s line might belong in a work of non-fiction rather than fiction. But this response gets back to Schneier’s objection that we shouldn’t focus on privacy as protection to hide wrongdoing.
May 23, 2006 at 12:06 am
Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement)
Print This Post
105 Comments
On the Milberg Indictment
posted by Dave Hoffman
I’ve been mulling over the Milberg indictment. Since I waited a weekend to post, I have the advantage of having read lots of other folks’ views. Quick summaries follow:
- Michael Dorf: Kickback payments slaved the named plaintiffs to MW, bloating agency costs.
- Steve Bainbridge:Kickbacks encourage “nuisance claims.” We may need criminal sanctions to crank the Hand formula to optimal levels, but only against individual lawyers.
- Walter Olson:”[MW was] taking no chances on the watchdogs staying pacified: It threw regular chunks of raw liver into their cages.”
- Larry Ribstein: Who cares? Lawyers are fungible.
- Ed Morrissey: Bad for Democrats and ambulance chasers.
- Christine Hurt: It’s high noon, and MW can’t blink.
- And let’s not forget MW itself: It was just a referral! And the theory is overreaching! And our interests remained aligned!
Wow. Lots of words. So here is what I think.
First, I still don’t particularly understand the economics of outrage here. I’ve seen two arguments about why kickbacks are bad (apart from their being unlawful, which we’ll put aside briefly). First, I’ve heard the argument that they “capture” the lead plaintiff, making that person less able to monitor the lawyer’s work. As Dorf points out, however, plaintiffs in securities class actions are sort of like shareholders stockholders: they have deputized oversight and management to lawyers, in return for fiduciary duties. Some folks seem to have in mind a more active role for lead plaintiffs – something like a controlling stockholder(?) – but given the relatively low bonuses awarded in settlements for lead plaintiffs, why would anyone want to play that role? That is, you can’t have distributed, small-stakes, high-impact, governance by private actions and have plaintiff management at the same time. The capture argument is another way of saying that these types of claims are not in the public interest. But we don’t criminalize inefficient lawyering. Not usually.
The second argument I’ve seen is related to the first – it is Bainbridge’s – and it suggests that kickbacks encourage securities actions that are (on the merits) weaker. Yup, that sounds right. But that isn’t an argument against kickbacks, it is an argument that judges aren’t doing enough to raise hurdles to weak actions at early stages, as the PSLRA was designed to accomplish. To the contrary, I have found that judges are quite hostile to securities claims.
The argument that I haven’t seen on the blogs, but which is larded through the indictment, suggests that MW was, in effect, selling out the rest of the class to benefit the folks at the head of the line. And in a way, this is (for me) the strongest argument against the practice. If MW really did countenance paying referrals-as-kickbacks to named class members out of their portion of the settlement, then we know that dollars were being taken out of the mouths of the rest of the class pretty directly. On the other hand, one might argue that MW had to pay off the named plaintiffs to bring the cases in the first place – that it is a an expense like overhead.
Two additional aspects of the case trouble me. Obviously, indicting the entire firm feels excessive. I don’t agree with Larry R. that reputational effects won’t follow MW’s innocent lawyers. I know lots of counsel at MW – I litigated against them – and I thought they were incredibly hard working, tough, honest, passionate adversaries. One of my worst days as a lawyer came across a deposition table from an experienced Milberg partner: he taught me a great lesson on how to get one’s opponent to hang himself on the record. And I’d be shocked if more than a handful of lawyers at the firm had any knowledge of the activities charged. If the USAO is really indicting out of pique for failure to roll over as most corporations would do in response to a patently unreasonable discovery demand, well, many folks who think of themselves as white knights are going to be tarnished unfairly.
Second, I have some problems with the continued federalization of state practice ethical rules. Although the indictment doesn’t come out and say this, some of the illegality is premised on state fiduciary duty and referral laws. (Some, granted, is based on Rule 23.) Shouldn’t this type of prosecution be the job of Elliot Spitzer and his imitators? Which raises a question: why didn’t Spitzer get here first?
May 22, 2006 at 10:48 pm
Posted in: Corporate Law, Criminal Law, Current Events, Economic Analysis of Law, Law Practice, Legal Ethics, Securities
Print This Post
2 Comments
Private vs. Public Sector Responses to Data Security Breaches
posted by Daniel Solove
I just blogged about the massive data security breach by the Veterans Administration, affecting 26.5 million veterans. Bob Sullivan has a terrific post comparing the government’s response to its data security breach to that of the businesses that have had such breaches in the past:
It’s become standard practice for data leakers to offer free credit monitoring to victims, so they are able to watch their credit reports daily for signs of misuse. The services are available from the credit bureaus, and cost about $10 a month. Corporations that leak data and foot the bill usually get big discounts.
So far, the vets haven’t been offered credit monitoring. Instead, the VA is reminding victims that they are entitled to a free copy of their credit report every year, and then basically wishing them good luck.
That’s insufficient. . . .
Meanwhile, a single peek at their credit report today would probably reveal very little. Fraudulent accounts can take weeks or months to appear, meaning it would be better to take that one peek in a month or two. But even that’s a tepid step at best to spy signs of identity theft after a data leak like this.
The only way to know something bad is happening to your credit is to look at it repeatedly, at about the same frequency that you look at your checking account statement. It’s hardly a perfect solution and doesn’t catch every instance of ID theft, but it’s a solid start. Credit monitoring services give consumers that kind of access. ChoicePoint, LexisNexus, and nearly all other commercial entities that have lost data have offered credit monitoring to victims for 3, 6, even 12 months.
The VA should do the same. Anything less is neglectful.
Bob Sullivan is exactly right. More at Sullivan’s excellent post.
May 22, 2006 at 7:49 pm
Posted in: Privacy (ID Theft)
Print This Post
No Comments
The Government’s Data Security Breach and “Data Neutralization”
posted by Daniel Solove
The AP reports an enormous breach of data security by the government:
Thieves took sensitive personal information on 26.5 million U.S. veterans, including Social Security numbers and birth dates, after a Veterans Affairs employee improperly brought the material home, the government said Monday.
The information involved mainly those veterans who served and have been discharged since 1975, said VA Secretary Jim Nicholson. Data of veterans discharged before 1975 who submitted claims to the agency may have been included.
This data breach is one of the largest ever. There are several points worth mentioning about this fiasco:
1. The government can be just as careless with people’s personal data as businesses and other organizations, which last year revealed data security breaches affecting millions of Americans — over 50 million according to one tally.
2. Keeping massive quantities of personal data creates risks to individuals. People must depend upon those keeping their data to maintain good security practices. This is one reason why, whenever the government collects data about people, we should be concerned.
3. Many data breaches are low-tech and are due to just a few irresponsible individuals or bad apples. Often, all it takes is for one dishonest or careless employee to breach security. In this instance, an employee took the data home, something that the employee wasn’t supposed to do. But why weren’t there better limits in place at Veterans Affairs? It is amazing that an employee can just walk out with personal data on 26.5 million people. Shouldn’t procedures be in place to prevent such things from happening?
4. Congress should look into legislation to neutralize the damage that all the leaked data can cause to people. Many of the laws addressing data security breaches focus on notifying people about breaches and on limiting such breaches. That’s all well and good, but more needs to be done. We need a “data neutralization” law. By “data neutralization,” I mean neutralizing certain pieces of personal information to reduce the potential damage that can be caused when such information is leaked. Leaked Social Security numbers and other identifying information wouldn’t cause so much trouble if the government restricted businesses and other organizations from using them as passwords to gain access to accounts or to verify identity. If these practices are stopped, the leaking of a Social Security number becomes much less harmful.
May 22, 2006 at 7:21 pm
Posted in: Privacy (ID Theft)
Print This Post
No Comments
Contracts Revue
posted by Miriam Cherry
This year I decided to do a “musical revue” / “musical review” during the last session of my contracts class. I’d play a song and then students would try to guess the case or contracts concept illustrated by the song. Feel free to try your hand at it in the comments, and I will add answer any that are missed (N.B. I think this list is too easy for contractsprofs or those who were in my class 
1. Cab Calloway, A Chicken Ain’t Nothing But a Bird
2. Isaac Hayes, Theme from “Shaft”
3. Naked Eyes, Promises Promises
4. Marvin Gaye, Heard It Through the Grapevine
5. Depeche Mode, Everything Counts
6. Simon & Garfunkel, Bridge Over Troubled Waters (Hint: same case as 7)
7. Talking Heads, Road to Nowhere (Hint: same case as 6)
8. The Rolling Stones, You Can’t Always Get What You Want
[Hat-tip: the ever-awesome AALS contracts listserve]
May 22, 2006 at 2:54 pm
Posted in: Contract Law & Beyond
Print This Post
14 Comments
George Bush’s Virgin Brides
posted by Jason Mazzone
Purity rings are all the rage.
The wearer of a purity ring vows to remain a virgin until marriage—at which time the ring is replaced with a wedding ring. Church groups and organizations like True Love Waits promote these virginity pledges and reasonably priced purity rings are available for single or bulk internet purchase.
Though men are welcome to don the ring, women are the main target audience. Among the many women’s rings one popular vendor sells is the Miss Faith a pink ring billed as “perfect for the lady who is focusing on purity and holiness” and Your Precious Jewel (“Treasure your precious purity as you would treasure a jewel”).
In ancient times fathers jealously guarded their daughters’ virginity because virgin brides commanded a higher price. (They still do in some places.) Today, fathers buy purity rings for their daughters and bestow them in a chastity ceremony. One such lord of the rings, Jack McLemore, gave his thirteen year-old daughter, Carrie, a ring with two bright red sapphires. The sapphires were meant to represent Jack’s eyes watching always over Carrie’s virginity.
May 22, 2006 at 12:15 pm
Posted in: Privacy
Print This Post
12 Comments
New Casebook (Privacy, Information, and Technology)
posted by Daniel Solove
Apologies for the self-promotion, but in time for this fall semester, Paul Schwartz, Marc Rotenberg, and I will be publishing a short paperback casebook of about 300 pages entitled PRIVACY, INFORMATION, AND TECHNOLOGY (Aspen Publishers, forthcoming mid-July 2006), ISBN: 0735562548.
This book is intended to be an inexpensive volume that adapts the cyberspace and technology materials from our full-length casebook, INFORMATION PRIVACY LAW (Aspen Publishers, 2d ed. 2006). The full-length casebook is about 1000 pages; the shorter paperback book is a more streamlined volume of about 300 pages, focusing exclusively on cyberspace, databases, and technology. Aspen informs me that this shorter paperback adaptation will probably sell at a price between $30 and $35.
The book might be useful as a supplement for cyberlaw or information law courses for instructors who want in-depth coverage of information privacy issues for between 2 to 5 weeks.
More information about the book is here. If you’re interested in getting on the list to obtain a review copy of the book (available in mid-July), please send an email to Daniel Eckroad.
The table of contents is available here. A summary of the book’s contents is after the fold.
May 22, 2006 at 12:16 am
Posted in: Articles and Books, Privacy, Privacy (Electronic Surveillance), Privacy (ID Theft), Technology
Print This Post
One Comment
A Different Law Review Metric: Cost Per Citation
posted by Dan Filler
My colleague Al Brophy has long been interested in the impact of law reviews, as assessed in terms of citations. He’s even written a paper on the issue, evaluating the relationship between law review citations and law review reputation. Law librarians, however, may be interested in a slightly different metric: the value of law reviews, calculated in cost per citation. John Doyle, at Washington and Lee, has produced a great (i.e., fun) webpage that offers up this budget-based evaluation of law reviews. Here we learn that the Yale Journal offers a library a whopping 12.63 citations for every dollar spent on the journal, while Columbia comes in at 11.45 cites to the buck. The Alabama Law Review is priced quite moderately at 4.08 cites per dollar. We discover that librarians comfortable making decisions on this basis should shut down the specialty journal subscriptions. The De Paul Journal of Sports Law and Contemporary Problems (which, based on its title, is perhaps the least specialized of all secondary journals) provides a scant .06 cites on the dollar. For the frugal librarian who tires of running this long list of numbers, Doyle provides free advice: plug in your total periodical budget, and the site gives you a subscription list. Got $2500 to spend on journals? Splurge on the Brooklyn Law Review, but cancel the GW Law Review.
All this sounds to me like a case for Hein Online.
UPDATE: Professor Brophy has recently posted a second paper on these citations issues here.
May 20, 2006 at 9:44 pm
Posted in: Law School
Print This Post
No Comments
Judge Edward Becker, R.I.P.
posted by Daniel Solove
Howard Bashman has posted the sad news that Judge Edward Becker of the U.S. Court of Appeals for the 3rd Circuit has passed away. Judge Becker was considered by many to be among the very best federal judges in the country. The AP has an obituary here.
May 19, 2006 at 8:39 pm
Posted in: Law Practice
Print This Post
2 Comments
