« June 2006 | Main | August 2006 »

Brief Comment Shutdown

We've been experiencing a barrage of comments from a spammer today, so we temporarily shut off comments. Unfortunately, Movable Type doesn't have an easy way of shutting off comments to older posts, so the only efficient way to stop the torrent of spam is to shut off comments globally. We'll reopen comments by tomorrow morning.

Posted by Daniel Solove at 05:20 PM | Comments (0) | TrackBack

Welcome to the Blogosphere: Voiceless

Andrew Chin (law, North Carolina) has just started a new blog called Voiceless. According to Andrew's description of the blog, it is an "examination of the legal and technological structures that keep almost all of us voiceless." Welcome to the blogosphere!

Posted by Daniel Solove at 12:57 PM | Comments (0) | TrackBack

Alleged Air Marshal Quotas: Do Nothing Wrong; End Up on a List

According to a report by a Denver news station, air marshals are under a quota to create one Surveillance Detection Report, or SDR a month.

The article quotes air marshals as saying that they may add someone to a watch list even though there was nothing to report just to meet the quota. If true, this article seems to support Dan’s points about information gathering and relates to his Nothing to Hide post . The idea that one could be added to lists for suspected terrorist activity simply to show some illusory level of effectiveness points to why some restraint on information gathering practices must be in place. In some cases this function may be performed by insiders who try to raise objections. That ideal, however, does not seem to work in this case. One air marshal apparently lost his job when he objected to the policy.

According to the article, some choice language from two July 2004 memos about the subject include “Each federal air marshal is now expected to generate at least one SDR per month” and "There may come an occasion when you just don't see anything out of the ordinary for a month at a time, but I'm sure that if you are looking for it, you'll see something."

HT: Slashdot

To be fair the service issued a memo in August 2004 stating that there is no quota and that "I do not expect reports that are inaccurate or frivolous." (It is unclear who the I was in that quote.) Still, the marshals interviewed claim that the policy is in place and that their pay and performance is affected by having enough reports. An example of a questionable report was a tourist taking a picture of the Las Vegas skyline which the interviewed air marshal said was not an example of potential terrorist activity.

The final part of the article states “Although the agency strongly denies any presence of a quota system, Las Vegas-based air marshals have produced documents that show their performance review is directly linked to producing SDRs.”

Posted by Deven_Desai at 05:24 PM | Comments (0) | TrackBack

Froomkin's Law Review Copyright Wiki

One of the things I always attempt to do with my scholarly work is to ensure that I keep the copyright in my name. This gives me the maximum freedom in how I choose to use and distribute my work in the future. Law reviews have a welter of different policies with regard to copyright that sometimes vary from year to year and from author to author. After negotiating, I have been able to secure copyright in my work with most journals, with just a few exceptions. Having knowledge about a journal's past copyright practices can be very helpful. I know of at least one author who was told by a law review that it was against their policy to give him copyright. This was false, since the law review had given me copyright in my piece in the very same issue. Once he told them about the discrepancy, the journal editors quickly changed their position and gave him copyright.

To help bring more clarity to the confusing and contradictory world of law review copyright experiences, Michael Froomkin has developed a wiki to track the copyright policies of various law reviews. He describes the project as follows:

The purpose of this website is for legal academics and others to share our copyright experiences with law journals and other legal publishers. As academics, we have an interest in ensuring the widest dissemination of our work. Historically, Law Journals have tended to use standard-form copyright agreements that reqire a copyright assignment, and have tended to impose unreasonable restrictions on our rights to share and re-use our own work.

This is starting to change. Increasingly, law journals, are adopting reasonable policies, or at least are open to negotiation. Due to the transitory nature of student-run law journal staffs, some staffs are actually unaware of their own past practices.

On the pages linked from here, legal writers describe their copyright experiences and law journals describe their policies. The information is as good or bad as what you contribute to it.

Hat tip: Paul Caron

Posted by Daniel Solove at 04:33 PM | Comments (2) | TrackBack

Closing Public Access to Social Networks: Should Web Sites or Parts of Them Have Ratings?

CNET reports that the House just passed (by a 415 to 15 vote) the Deleting Online Predators Act (DOPA) (text of the bill here)

The bill seeks to reduce, if not eliminate, the ability of sexual predators to use social networking sites to prey on teens at least when the teen user is at a school or library that receives federal funding which according to the article is at least two-thirds of libraries in the United States. The goal is laudable but the bill, which leaves the definition of social networking to the FCC (nice dodge there), mandates the FCC shall consider whether the site: "(i) is offered by a commercial entity; (ii) permits registered users to create an on-line profile that includes detailed personal information; (iii) permits registered users to create an on-line journal and share such a journal with other users; (iv) elicits highly-personalized information from users; and (v) enables communication among users."

As the article note the language is so broad that not only MySpace but Amazon, Slashdot, and even the conservative Redstate.com would be subject to the law. Indeed, blogs, parts of Yahoo!, and more would no longer be available to students or those who do not have computers at home. Of note to this readership, a Pew report found that 38% of 12-17 year olds read blogs and 19% create them. To me encouraging young people to write and read more is a goal we should keep in mind as well as protecting them from online nuts.

Another Pew report on teen Internet usage found 87% of teens are online. 81% play games but 76% read news. The report points out that of the 13% who are not online, they are “clearly defined by lower levels of income and limited access to technology. They are also disproportionately likely to be African-American.” Yet despite the possibility that the bill will take away access to lower income groups, note that in general 78% access the Internet at school and 54% at a library.

What does this move say about access to information by teens? It seems crazy to try and have schools or libraries police teens' activities and the definitions are so broad that healthy activities are curtailed. Maybe some sort of rating system would make sense. I am not sure that it would, but as a quick thought it seems better than shutting off access to a growing, key part of American social and in some cases mental growth (in a sense I think Zittrain's Generative Internet has some some insights here in that it addresses the tensions between openness and security on the Internet). I could be missing something here and I would love feedback on ways to protect youth users without cutting them off from the Web in public places. My instincts are that parents should be sitting down with kids and continually teaching them about the online equivalent of “Don’t Talk to Strangers.”

Posted by Deven_Desai at 09:04 PM | Comments (7) | TrackBack

A Second Law Review Submission Guide

Tony Sebok (Brooklyn Law) has graciously permitted me to post a law review submissions guide he compiled. Together with a similar guide created by Scott Moss (in XLS format) faculty can have a pretty clear sense of what many of the top journals are up to this cycle. Maybe our new motto should be: "the Law, the Universe, and some Public Goods."

That said, there would be clearly an enormous public benefit were this process to be wikified. Although my preference would be for ExpressO to manage a centralized information clearinghouse, perhaps that type of command and control thinking is obsolete. So how about it. Do any of our readers know how to make a wiki for law review submission related information?

UPDATE: I've created a law review information wiki. (I feel like such a proud papa.) It is currently a stub, with links to the files we've posted here, and a skelatal outline. Our readers are encouraged to go onto the page and make it better.

Posted by hoffman at 12:00 PM | Comments (4) | TrackBack

Online Blacklisting of Medical Malpractice Plaintiffs

In a disturbing development, websites are emerging to create blacklists of individuals who file medical malpractice claims. According to an article at Law.com:

In 2004, a group of Texas physicians launched DoctorsKnowUs.com. The site listed the names of plaintiffs, attorneys and expert witnesses in medical malpractice cases. That site did not make any distinction between cases that ended in plaintiff verdicts and those that ended in defense verdicts or settlements.

According to the New York Times, a North Texas man had trouble finding a physician for his 18-year old son after his name was posted on the site. He had filed a medical malpractice suit after his wife died from a missed brain tumor, and had won an undisclosed settlement.

DoctorsKnowUs.com was shut down four days after the Times article was published.

A new website to blacklist medical malpractice plaintiffs has emerged, called LitiPages.com. According to the Law.com article:

In the latest effort to enable doctors to shun patients who sue, an offshore company has launched an Internet site that lists the names of plaintiffs who have filed medical malpractice cases in Florida and their attorneys.

The site, LitiPages.com, encourages doctors to consider avoiding patients who are listed in the database, and it strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney. . . .

Unlike the Texas site, LitiPages.com plans to list only plaintiffs who filed cases that ended in a defense verdict, a settlement, or a plaintiff verdict on only one count while other counts were dismissed.

The overwhelming majority of med-mal cases that go to trial result in defense verdicts. A large percentage of claims never go to trial, and many of those result in settlements. Some experts say that it's not possible to say that cases are "frivolous" just because they don't result in a plaintiff verdict.

The article also discusses an interesting study about medical malpractice lawsuits:

A study released in May by researchers at the Harvard University School of Public Health concluded that claims that the U.S. medical malpractice system is riddled with frivolous lawsuits are overblown.

The researchers found clear-cut evidence of medical error in two-thirds of malpractice cases that are filed around the country. In those cases that involved a medical error, 73 percent of the plaintiffs received some sort of compensation. Of the one-third that did not involve a medical error, 72 percent of the plaintiffs did not receive compensation.

I find the LitiPages website very troubling. But what about the reverse -- a website listing doctors who have been sued for malpractice or who have lost malpractice cases? I feel somewhat differently about such a website because the vast majority of malpractice claims are for a few bad apples, and having information about them would be helpful to patients to prevent injury. Of course, I'm assuming a professional website that is accurate and helpful, but this may be in doubt because many cases settle, and a settlement can represent an egregious case as much as it can a rather minor case without a lot of merit that the doctor's insurance company just wants to go away. But assuming such a website can be fairly designed, is it consistent to reject the website for malpractice plaintiffs but to approve of a website for malpractice physicians?

I believe a distinction can be made. Physicians are professionals, and they have higher duties and responsibilities than the patients they treat. Indeed, one of the duties of the profession is to police itself, to weed out the bad apples. Sadly, I'm not sure that the medical profession does a good enough job of this (lawyers aren't much better at policing their own profession). In distinction, a blacklist of malpractice plaintiffs discourages them from exercising their legal rights and inhibits the legal system from redressing wrongs by errant physicians. Moreover, even to the extent to which plaintiffs bring frivolous suits, these are often the fault of the lawyers, not the plaintiffs.

Posted by Daniel Solove at 04:44 PM | Comments (8) | TrackBack

Chart of Law Review Submission Policies

Scott Moss, a law professor at Marquette and a reader of this blog, emailed me a very useful chart he created of law review submission policies at the top 37 law school's law reviews. He has graciously allowed me to post it here. According to Scott, he stopped at 37 journals for no other reason than it was getting tedious and boring. The chart has information about article length, spacing, anonymity, mail vs. ExpressO, dates by which journals will begin reviewing this fall, and more. Thanks, Scott!

Posted by Daniel Solove at 04:14 PM | Comments (5) | TrackBack

Welcome to the Blogosphere: Credit Slips

A warm welcome to the Credit Slips blog, featuring some great folks: Melissa Jacoby, Bob Lawless, Angie Littwin, Katie Porter, John Potto, Debb Thorne, and Elizabeth Warren. Melissa has a very nice post up already on the relationship between the bankruptcy reform act, filing, and behavioral law and economics. There is also a neat policies post by Bob Lawless, including the following frank disclaimer:

We do not provide legal advice, and nothing on this site should be construed as legal advice. We are not all even lawyers. Those of us who are lawyers can get in trouble for giving advice outside the states where we are licensed. Being in debt can be very stressful, and we understand the desire to reach out for help. Please do not contact us for advice because we cannot help you.

Ditto for us, if we haven't said it already. (Sadly, as I have previously written, I doubt that disclaimers like these, ubiquitous in the blawgosphere, would be dispositive in a court proceeding.)

Posted by hoffman at 03:31 PM | TrackBack

Solum on the Need for Opinions

Larry Solum recently posted a kind response to my post on the need for judicial reasoning. Here is a taste of his analysis:

An obligation to offer justification has obvious accuracy-enhancing effects: it forces the decision maker to engage in an internal process of deliberation about explicit reasons for an action and to consider whether the reasons to be offered are "reasonable" and whether they are likely to be sustained in the event of appeal. Balancing approaches, which consider the costs of procedural rules as well as their accuracy benefits, point us in the direction of the costs associated with requiring justifications on too many occasions and of the costs of requiring justificatory effort that is disproportionate to the benefits to be obtained. Requiring reasons facilitates a right of meaningful participation as well: when a judge gives reasons, then the parties affected by the action can respond--offering counter reasons, objecting to their legal basis, and so forth. Moreover, the offering of reasons provides "legitimacy" for the decision.

Very helpful. Clearly, the procedural justice literature has much to say on whether it is illegitimate for judges to rule without explanation. It seems to me that much of Larry’s discussion would seem to foreclose the legitimacy of what our commentators have suggested as the backstop for expressed opinions: back-pocket explanations, i.e., reasons produced by litigant demands.

But I still think that much of our thinking on the problem of "why and when reasons" is driven by biases built into our legal-DNA by the law school experience. I'll ramble a bit more on this problem below the jump.

It is not novel to point out that law school overemphasizes the role of judicial opinions as a percentage of what constitutes "law". The first-year common law method approach is at the root of this bias, and no doubt leads to the heuristic that law = reasoning = legitimacy. But many legal rules are simple commands (statutes; police instructions) unadorned by justifications. Indeed, asking a police officer for the reason behind an order is likely to engender suspicion, at the least. Even as a description of the normative legitimacy of judicial product, the focus on reasons seems to me to be an artifact of appellate thinking. Appeals courts are all about reasons, possibly because they lack the intimate acquaintance with the instruments of force (jailers, marshals) that accompany district court life.

My research focuses on district courts in part because as a clerk for a district judge, I realized that "we" were creating a great deal of law without giving any explanation, let alone full-fledged, blue-booked, opinions.

It bears emphasizing that as a matter of precedent, all district court dispositions are equal. A 75-page opinion taken up into the federal supplement formally binds as little as a one line denial of a motion to dismiss. At the same time, within district court jurisdictions, it is my sense that opinions acquire a degree of precedent-like force. Judges don't like to disagree with their colleagues on the bench (and from the lunchroom). But they will be more willing to disagree with a mere order. Thus, judges who write opinions may be seeking to advance their policy goals in a way unappreciated by folks who assume that all district courts do is apply higher court directions. Regardless, the decision to write an opinion doesn’t make a disposition formally more important. Instead, the difference may bear on: (1) the procedural justice spectrum that Larry describes; and (2) the degree to which the signal something about the law to lawyers.

Lawyers are interested in when arguments made in briefs work. Within certain communities able to share information about orders (firm-wide communities; networks of plaintiffs or defense counsel working on products liability cases), even unreasoned dispositions create effects for parties outside of the litigation context: they start to look doctrine-like, as they enable lawyers to predict the outcome of legal problems with more certainty.

My docket project (code name: docketology :) has led me to consider what will happen when dockets become easily and cheaply searchable. I wonder if lawyers in the future will routinely cite to orders on analogous briefs as a way to persuade judges of the rightness of their cause. If orders are then cited in opinions, will we see a breakdown of the line between order and opinion, such that all judicial workproduct is fair game? That is, there is a huge universe of unexplained decisions out there currently, which hasn't mattered because such dispositions were only seen by the parties and only intended to govern them. Parties that objected to the lack of reasons presumably got them most of the time, through mechanisms like motions for reconsideration, or mandamus. Thus, it was safe to exclude the set of unreasoned disposition from the universe of what we think of as "doctrine," which I think to date has included even nonprecedential district court opinions. (Take a look at a first-year common law casebook and count the many, many district court opinions adopted as part of the fabric of doctrine.) But in a world of digitalized law, that distinction breaks down.

An interesting consequence would be to deepen our understanding of opinions themselves. Recent work (here) on the citation of opinions would be enriched were we to know whether the citation of "important" opinions in other opinions was the same as their citation in orders. Perhaps (and only perhaps) the patterns of importance that we see in opinions-only citation studies would be quite different from that we see in orders. Differences would suggest that the world of opinions is systematically different from the world of dispositions in general, a result with profound implications, most especially for projects that seek to summarize or restate the "law" based on published long-form opinions.

Posted by hoffman at 02:47 PM | Comments (3) | TrackBack

Law Review Article Submission Resources (Fall 2006)

The fall law review submission window opens in mid-to-late August, so I thought I'd reprise an earlier post with some useful resources for submitting articles.

Article Submission Length Restrictions

Emory Law School's Library has a very useful chart of article length restrictions at the top 35 law reviews.

The general consensus is that many top law reviews have an article length limit of 35,000 words and a preference for no more than 25,000 words. Virginia Law Review has the strictest policy, with a limit (not just a preference) of under 25,000 words. All the rest have either no upper limit or a 35,000 to 40,000 word limit. As for preferences, the range is between 25,000 to 35,000 words, with most at 25,000.

Law Review Contact Information

1. Emory Law School's Library maintains contact information, including email addresses, for the top 25 law reviews.

2. JURIST has links to countless law review websites.

3. LexisNexis Directory of Law Reviews

Electronic Submissions

1. ExpressO provides for electronic submission to over 450 law reviews. However, a number of the top 25 law reviews still require either paper submissions or electronic submissions via their own website. For those law reviews not allowing an ExpressO electronic submission, ExpressO will print out the article and send it to these journals in hard copy. It costs extra for these submissions.

2. Here are the electronic submission pages for many of the top law reviews. Those that require ExpressO to print hard copies have an asterisk after their name:

California Law Review* (no electronic submissions)
U. Chicago Law Review* (no electronic submissions)
Columbia Law Review*
Cornell Law Review*
Duke Law Journal* (no electronic submissions)
Fordham Law Review
Georgetown Law Journal
George Washington University Law Review (via email)
Harvard Law Review*
Illinois Law Review (via email)
Indiana Law Journal (via email)
Iowa Law Review
Michigan Law Review* (no electronic submissions)
Minnesota Law Review (via email)
New York University Law Review
North Carolina Law Review* (via email)
Northwestern Law Review
Notre Dame Law Review (via email)
U. Pennsylvania Law Review*
Southern California Law Review* (no electronic submissions)
Stanford Law Review
Texas Law Review* (no electronic submissions)
UCLA Law Review (no electronic submissions except for ExpressO electronic submissions)
Vanderbilt Law Review* (no electronic submissions)
Virginia Law Review (via email)
William & Mary Law Review* (no electronic submissions)
Wisconsin Law Review (no electronic submissions except for ExpressO electronic submissions)
Yale Law Journal

Changes from the spring submission season: Yale Law Journal, NYU Law Review, and Northwestern Law Review now accept electronic submissions via ExpressO; Cornell no longer accepts electronic submissions via ExpressO.

Law Review Rankings

Washington & Lee's Law Library has a comprehensive ranking of law reviews based on citation counts.

Discussions About Law Reviews

Concurring Opinions: Dave Hoffman, Is ExpressO Winning the War Against Chaos? (July 2006)
Concurring Opinions: Dave Hoffman, Law Review Submissions (July 2006)
Concurring Opinions: Dave Hoffman, Nominally Empirical Evidence of Unraveling in the Law Review Market (May 2006)
Concurring Opinions: Mike Dimino, Spring Law Review Submission Season (Feb. 2006)
Concurring Opinions: Daniel Solove, Three Cheers for Law Reviews (Jan. 2006)
Concurring Opinions: Daniel Solove, Swiftly Shrinking? Toward the Lilliputian Law Review Article (Nov. 2005)
Concurring Opinions: Daniel Solove, Does Scholarly Writing Have to Be Tedious? (Jan. 2006)
Concurring Opinions: Nate Oman, A Modest Defense of Law Reviews (Nov. 2005)
Conglomerate: Christine Hurt, Another Submission Season Down (Sept. 2005)
Crooked Timber: Micah Schwartzman, Don't Blame the Law Students: A Reply to Posner (Oct. 2004)
Law & Society Weblog: Manfred Gabriel, Hello to Law Reviews -- Good-bye to Student Editors? (Jan. 2006)
Legal Affairs: Richard Posner, Against the Law Reviews (Nov. 2004)
Madisonian Theory: Mike Madison, The Law and Economics of Law Review Submissions (Sept. 2005)
OrinKerr.com: Orin Kerr, Articles Shed Twenty Pounds, er, Pages (July 2006)
PrawfsBlawg: Kaimi Wenger, Publishing While Practicing I (Aug. 2005)
PropertyProf: Al Brophy, Ranking Law Reviews Based on Citations (July 2006)
PropertyProf: Al Brophy, The Relationship Between Law Review Rankings and US News Law School Rankings (April 2006)
Volokh Conspiracy: Eugene Volokh, Are Law Review Articles Getting Shorter? (Nov. 2005)
Volokh Conspiracy: Eugene Volokh, Law Review Lara Poses a Question to You (on seeking faculty guidance) (Feb. 2005)
Volokh Conspiracy: Eugene Volokh, Law Review Lara -- Little People in the Big Journals (Jan. 2005)
Volokh Conspiracy: Eugene Volokh, Law Review Lara Hears from Yale (on little people in big journals) (Feb. 2005)
Volokh Conspiracy: Orin Kerr, The Length of Law Review Articles (Oct. 2004)
Volokh Conspiracy: Orin Kerr, Progress on the Length of Law Review Articles (Feb. 2005)
Volokh Conspiracy: Orin Kerr, Why Blogs Will Not Replace Law Review Articles (July 2005)

Posted by Daniel Solove at 12:29 PM | Comments (0) | TrackBack

Is ExpressO Winning the War Against Chaos?

Over the last few article submission cycles, law professors have become accustomed to submitting articles through ExpressO. But it's become clear that a battle has erupted between the centralizing forces of ExpressO and the top law reviews, which increasingly want authors to submit electronically through their individual webpages. This fight threatens to ruin the utility of ExpressO, and not incidentally make the process almost as inconvenient as it was when authors sent out dozens (or scores) of mail-merged letters.

A colleague points out that ExpressO is offering a new service for journals: LawKit. LawKit is a database management system that allows the reviews to manage the submission and editing process. But the most promising part of the system, it seems to me, is that it may have been designed to bring defecting law reviews back into the fold. According to the website, reviews can get articles onto LawKit in one of three ways:

1. through a web submission form accessible from your law review's web site; 2. through ExpressO; or 3. an editor can upload a paper on the author's behalf.

Regardless of the method used, the submitted articles all end up in the same place (the pending submissions queue in the Submission Management screens).

That is, if a review decides to use adopt the LawKit management system, it gets hooked back into the ExpressO submission service. It may be that it is LawKit that has encouraged a top journals like Georgetown, which had moved away from Expresso, to change its mind.

I endorse ExpressO and I wish it success in centralizing this process. There is no good reason for 100 different journals to require authors to submit on 100 different web pages. Of course, down the road, I hope that ExpressO plans to add more functionality for authors. For example, wouldn't it be useful if the system could track when journals start making offers, what percentages of their books are full, etc.? Blogs can't do everything, after all. It would also be useful were the entire process of submission to be open (but name-blind) so that we could get better data on the purported letterhead bias and the unravelling law review market theory.

Posted by hoffman at 11:52 AM | Comments (0) | TrackBack

Public Access to State Waters

An interesting article today in the New York Times describes a dispute in Montana between owners of land abutting a waterway and members of the public who want to use the water for fishing. The technical legal question is itself an interesting one: whether the water is a natural waterway or a man-made ditch. According to Montana law, if it is a "natural, perennially flowing stream," the public must have access, so the owners are arguing that this particular body of water is, in effect, an irrigation ditch. Owners have taken to stretching wire fences across the river/ditch to prevent sports fishermen from accessing the water as it flows past private land. The wrinkle appears to be that the water was (beyond dispute) at one time a natural waterway, but that it has been dramatically altered by human activity, including the addition of a series of gates to control water flow. Nevertheless, according to one (Republican) state senator, "[m]y family has been here for a hundred years, and no one except these rich out-of-state landowners thought of it as anything but part of the BItterroot [River]." So one interesting question is whether a natural waterway ceases to be natural once a certain amount of human activity has taken place. And, if so, how much human activity is sufficient to accomplish this transformation?

Perhaps more broadly, the case may present another example of an interesting (and increasingly frequent) pattern in which the wealthy purchase property that is burdened by traditional public access requirements and then fight to prevent the public from exercising those rights, raising privacy concerns to justify their stance.

Some of the owners of the waterfront property in the Montana case are folks like Huey Lewis and Charles R. Schwab (of the discount stock brokerage). According to one waterfront owner, "[i]t would be a tremendous loss of privacy and we'd have people in that everyday." Obviously, waterfront property is extremely desirable and, increasingly, it is out of reach to all but the wealthiest citizens. But many waterfront owners want to have their cake and eat it too. They want to own on the waterfront but they don't want to be subject to the inconveniences (including traditional public rights of access) that go along with owning these unique parcels of land. Arguably weighing in the other direction in this case are the (allegedly) substantial improvements made to the channel by the the riparian owners. According to Huey Lewis, the waterfront owners have spent time and money to deepend the channel and improve the water quality in order to provide better habitat for trout. Without these improvements, they claim, it would have simply been a muddy ditch. Montana's governor has sided with the fishermen, and says, "[i]f you want to buy a big ranch and you want to have a river and you want prvacy, don't buy in Montana. The rivers belong to the people of Montana."

Before I get a slew of breathless comments from property rights advocates, let's be clear that this is not a takings case, a la Nollan v. California Coastal Commission. Montana's law requiring public access to its waterways is longstanding, and these owners all bought with notice of the Montana rule (though arguably with some ambiguity about the factual status of this particular waterway -- on the other hand, on this score, see the above statement by the Montana state senator).

One of the more interesting issues about this case is how the case (and others like it) is symptomatic of an increasing desire for social and physical distance between the wealthiest citizens and everyone else. Income and wealth inequality have now reached levels we have not seen in this country since the Gilded Age. One of the consequences of this dramatic inequality, it seems to me, is that the wealthiest increasingly view themselves as a society apart, that is, they increasingly seem to reject the notion that they are part of a common enterprise shared with the rest of us. Moreover, it seems to me that the waterfront is one of those (few) places in our society where people from all backgrounds come together and interact in what Carol Rose has called the "comedy of the commons." Now, I'm agnostic about the merits of this particular case. I suspect that the fishermen are correct; it may well be, however, that this particular waterway is not, as a factual matter, a "perenially flowing stream." But it seems to me that we should be vigilant against attempts by narrow segments of our society to enclose for themselves spaces that have traditionally served as open access commons.

Posted by Eduardo_Penalver at 10:53 AM | Comments (1) | TrackBack

Teaching Criminal Law

There are some great discussions over at PrawfsBlawg about teaching criminal law. Russell Covey wonders why so many professors bother to teach the Model Penal Code (MPC):

Well, guys, I'm here to say that the MPC-era is as yesterday as tie-dye and the VW van. Peel off those bumper stickers and put away the MPC. What do our casebooks have to say about, say, drug crimes? Usually very little, even though 21% of state prisoners and 55% of all federal prisoners were convicted of drug crimes.

Likewise, Doug Berman argues that it is time to stop "obsessing" over the MPC.

For those unfamiliar with criminal law courses, they often consist of teaching two things -- the common law of crimes and the MPC. The MPC is a complete criminal statutory code developed around the middle of the twentieth century by a group of judges, academics, lawyers, and others to be a selection of the best approaches in the various states. Many states have based some of their criminal statutes on the MPC. The common law is for the most part no longer in use. States have replaced the common law of crimes with statutes. Nevertheless, most criminal law courses still focus significantly on the common law.

I teach my criminal law class as a statutory course since most of criminal law involves working with statutes. I therefore spend a lot of time teaching students how to interpret and apply statutes. These skills are also useful for students who don't go on to work in the criminal law field (most students won't practice criminal law). And these skills are absolutely essential for those practicing criminal law.

The problem isn't with the MPC; it is the fact that most casebooks and courses are still obsessed with the common law. True, the common law is on the Bar Exam, but this is one of the (many) unfortunate stupidities of the Bar Exam. The common law definitions of crimes have been replaced by statutes, and many of the traditional common law elements no longer exist in the majority of states. As I've said before, if you practice the criminal law on the Bar Exam, you'll be disbarred.

Although the MPC is a bit dated, its great strength is its mens rea provisions, which are a big advance from the common law's cacaphony of mens rea (mental state) terms (there are hundreds of mens rea terms in the common law which the MPC simplifies to four). So although not perfect and in need of a rewrite, the MPC is still useful as a basis for a criminal statutory code. Since hardly any casebooks have a statutory focus, the MPC is the most handy thing for professors to turn to when teaching the statutory side of criminal law.

So while the MPC has its problems, it isn't the problem. Instead, blame the excessive focus on the common law.

Kim Ferzan at PrawfsBlawg also weighs in, not to bash the MPC, but to point out that "if you spend all your time on the building blocks of crimes (e.g., the general part), you never get to the crimes that folks are actually prosecuted for."

I'm not sure we serve students well by running through the definitions of a litany of different crimes. It's easy for students to memorize elements of various crimes, but the hard part is internalizing the key concepts. Once students learn the basics of criminal law (actus reus, mens rea, causation, and statutory interpretation), they can apply them to nearly any criminal statute under the sun.

Posted by Daniel Solove at 07:44 PM | Comments (3) | TrackBack

He's gonna find out who's naughty or nice

A friend just sent me an article from Wired News about a new license plate tracking technology. Right now police are the main users of the technology. An infrared beam reads license plates and then the information is checked against a database of choice to see whether the registered owner has outstanding warrants, tickets, or even perhaps overdue library books. I guess one will have to be a bit more careful about borrowing a car.

As slashdot notes this excerpt shows where the company that makes the technology wants to go with it:

[Andy] Bucholz, who designed some of the first mobile license plate reading, or LPR, equipment, gave a presentation at the 2006 National Institute of Justice conference here last week laying out a vision of the future in which LPR does everything from helping insurance companies find missing cars to letting retail chains chart customer migrations. It could also let a nosy citizen with enough cash find out if the mayor is having an affair, he says.

I can just hear the pitch: Find out the correlations between where one shops, eats, drinks, or relaxes so you can hound the gym-goer with coupons for Whole Foods! Paparazzi? Reporter? Whoever you are track those sleazy, politicians! Follow those crazy [choose conservative, liberal, or your own label].

To be fair there seem to be some valuable applications of the technology. According to the article, the typical system costs around $25,000. New Haven bought one and “In the first 12 hours after New Haven, Connecticut, deployed a G2 Tactics LPR to crack down on parking violations, the city towed or booted 119 cars, resulting in a $40,000 windfall, according to Bucholz.” Now that’s ROI.

Posted by Deven_Desai at 03:46 PM | Comments (0) | TrackBack

From the Work-Life Balance Front

Right around the same time venerable law-blogger Denise Howell announced she had been fired by Reed Smith, evidently for reasons related to her part-time status, this interesting article (sub. req.) appeared in the New York Law Journal:

Faced with sharp criticism from the state and county women's bar groups, Nassau County District Attorney Kathleen Rice yesterday defended her decision to let go a dozen part-time women prosecutors unless they agree to work full-time....

All of the part-timers are mothers, although the D.A.'s office has said that some have older children....

Responding to the criticism, D.A. Rice "said two of the top three executive positions in her office are held by women, compared to none under her predecessor.... She also said seven of the 14 management positions in her office are held by women, compared to just two under Mr. Dillon." On the issue of the part-time program:

"We're dealing with life and death," said Ms. Rice, who said full-time attorneys are better able to form the relationships with witnesses that are key to many trials.

"You can't have part-time litigators," said Ms. Rice, adding that some of her part-time lawyers have been allowed to leave trials at 2 p.m. while the judge and the defense are still in the courtroom.

Over the weekend the New York Times ran a follow-up article that gives more of Rice's side of the story, and a letter from a reader appeared last week that basically says, "Having a child is a choice, so tough noogies."

Posted by Bruce_Boyden at 02:25 PM | Comments (5) | TrackBack

Specter Looking to Sue President Bush Over Signing Statements

Apparently Arlen Specter "plans to introduce legislation this week that would give the U.S. Congress the right to bring a lawsuit against Bush's 'signing statements.'" The move comes on the same day that the ABA's taskforce on the matter issued its report and recommendation. To date President Bush has used the device more than 750 times. For a recent discussion of the matter and some links to Richard Esptein's defense of the device go to this page on the ACSblog.

From the ABA's press release:

Presidential signing statements that assert President Bush’s authority to disregard or decline to enforce laws adopted by Congress undermine the rule of law and our constitutional system of separation of powers, according to a report released today by a blue-ribbon American Bar Association task force.

The task force is bipartisan. The list of members is: Neal Sonnett, William S. Sessions, Patricia M. Wald, Mickey Edwards, Bruce Fein, Harold Hongju Koh, Charles Ogletree, Stephen A. Saltzburg, Kathleen M. Sullivan, Mark Agrast, Tom Susman, and adviser Alan Rothstein. Their bios may be found here.

Posted by Deven_Desai at 12:24 AM | Comments (8) | TrackBack

Weird Statues

No, that's not a typo in the title. . . . This is a post about weird statues, not statutes (although there are plenty of weird statutes too). I don't have much to say about the law today, but I found this website with pictures of unusual statues from around the world to be irresistible.

Hat tip: BoingBoing

Posted by Daniel Solove at 07:18 PM | Comments (1) | TrackBack

Florida Travel Ban Update

Here's a memo that just went out from the University of Florida the other day, implementing the State's new prohibition on academic travel to terrorist states:

July 21, 2006

MEMORANDUM

TO:
Deans, Directors, and Department Heads

FROM:
Michael V. McKee, University Controller

SUBJECT:
Travel to Terrorist States

Senate bill 2434 relating to travel to terrorist states was
approved and signed into law by the Governor effective
July 1, 2006 and contains the following restriction:

Florida Statute 1011.90 (6) - Prohibits the use of state or
non-state funds made available to state universities to
implement, organize, direct, coordinate, or administer
activities related to or involving travel to a terrorist state.
Travel to a terrorist state shall not be allowed under any
circumstances.

The bill defines "terrorist state" as any state, country, or
nation designated by the United States Department of State as
a state sponsor of terrorism. Currently, the State Department
assigns that designation to five countries:
Cuba, Iran, North Korea, Sudan and Syria.

Prior to the passage of this bill, travel to these countries
was allowed, but only from non-state funding sources.

No official business-related travel to the above countries
from any funding source will now be allowed by the University.

If you have any questions, you may contact Randy Staples,
Ted Griswold or Brett Wallen at 392-1245.

============================================================
NOTE: This and other DDD Memos are maintained on the WWW at:
http://www.admin.ufl.edu/DDD/
(ALL ATTACHMENTS TO ORIGINAL MEMOS ARE POSTED HERE)
============================================================

Posted by Eduardo_Penalver at 02:53 PM | Comments (10) | TrackBack

Tin Men

As a follow-up to my post about an apparently sleazy car sales tactic a few days ago, I thought I'd point you to a fascinating undercover look at the world of car sales from Edmunds.com. The reporter spent 3 months as a new car salesman, part of it at a high-pressure showroom dedicated to a Japanese brand, and the other at a "no-haggle" dealership for an American brand. In general, the article reminds me of the movie Boiler Room, as well as my own brief career in high-pressure sales (don't ask). The traditional car lot is a shark pit of deceptive maneuvers aimed at separating marks from their money. The "no-haggle" lot seems much better, but it also seems like it's not doing a lot of business.

There's evidence the Internet is changing the whole business:

I was already beginning to see the impact of the Internet because of something that happened during my first few days there. [The reporter talked to a man waiting in the maintenance area, who tells him he got an "awesome deal" on one of the dealership's new SUVs -- $300 below invoice.] I asked how he did it. He said he checked prices on the Internet. He then called the fleet manager and made the deal over the phone.

I had a schizophrenic reaction to this. Part of me admired the fact that he had outfoxed the dealer. But the car salesman side of me was angry that I never "got a shot at him." It seemed like just a matter of time before people who, in the past, walked onto our car lot, would be on the Internet making deals.

The salesmen are only vaguely aware of this developing trend. I was standing on the curb next to George and we saw one of these high-demand SUVs ready for delivery.

"Another damn Internet sale," George said. "Why don't they turn that car over to us? We'd get a grand over sticker. Instead they're selling it at invoice. Does that make sense?" As the days passed I noticed more and more cars marked "carsdirect.com." And as I approached people on the car lot they often informed me that they were here to see the fleet manager. More Internet customers.

This indicates that wealthier, computer-savvy customers may be circumventing the sleazy sales tactics, leaving the sharks to prey only on poorer, less-informed customers. It could develop into yet another element of the "poor tax."

HT: Consumerist

Posted by Bruce_Boyden at 11:30 PM | Comments (13) | TrackBack

Amazon’s Text Stats and a Little Orwell

Watching changes on Amazon.com is a good way to see how much one’s information can be stretched. The continual refinement of suggested books and other items is a little disturbing, but it often yields titles that I find useful. The Gold Box with its game show approach to sales is an example of the information mining. To use the Gold Box one clicks on the box and then one is offered an item that ususally relates to something you purchsed before or at least looked at. When the item is on screen, one must choose between accepting the sale offer or passing on it to see the next offer with no chance to go back to the previous offer. All decisions must be made within one hour of opening the box. I have opened the box a few times and am often surprised by some of the items that show up in there. Given how often Amazon seems to correlate interests, when what seems to be an aberration pops up, I wonder whether it is a random shot to see if it will stick or whether in some deep way Amazon has discerned that I have a hidden desire for vitamins, herbal remedies, or hairdryers. So when I saw that Amazon had added Text Stats I had to poke around. After all who knows what information would come my way by seeing the statistics (whatever they may be) on a book?

I found that not all books have this information but it seems that when publishers play along Amazon will give a book’s statistics including syllables per word; words per sentence; total number of characters, words, and sentences; and my favorites, the “Fun Stats,” words per dollar and words per ounce. Amazon takes this information and gives scores for Readability (explained below). Apparently the Bible, depending on the edition, requires either a twelfth grade reading level or a tenth grade reading level . Yet, one study of government Web sites states that “half of Americans read[] at no higher than the 8th grade level.” You may draw your own conclusions.

Text stats also gives information about where the book is in relation to all other books (and in some cases one can compare within classes of texts). So I started to poke around and it seems that (if we take the numbers seriously and there is reason not to do so when one examines exactly what readability means) perhaps the best writing correlates to simpler writing which reminded me of Orwell’s Politics and the English Language but I’ll get to that later. To have fun and play with that idea I looked at the Modern Library’s list of 100 best novels to see how they compared to all text in the Amazon set and then within literature.

Ulysses text stats show that a ninth grade reading level is required under the fog test and that 80 percent of all books are more difficult. Furthermore 10 percent of the words are complex but that means that 71 percent of all books have more complex words. At 1.5 syllables per word, 73 percent of books have more syllables per word; yet, with only 12.1 words per sentence 76 percent of literature books have more words per sentence. Oh yes, one obtains 16,776 words per dollar and 9,516 words per ounce for the Modern Library edition.

How do other books do? Only 16 percent of texts are more difficult than Heidegger’s Being and Time (not on the list). Looking at the rest of the Modern Library’s list of 100 best novels here are the numbers for the top ten: Ulysses, 80 percent are more difficult; The Great Gatsby, 79 percent; A Portrait of an Artist as a Young Man, 62 percent; Lolita, 49 percent; Brave New World, 77 percent; The Sound and the Fury; 96 percent; Catch-22, 75 percent; Darkness at Noon, (unavailable); Sons and Lovers, 93 percent; Grapes of Wrath, 90 percent.

If we take the same list and compare it to literature authors A to Z (Amazon’s classification):
Ulysses, 69 percent; The Great Gatsby, 65 percent; A Portrait of an Artist as a Young Man, 33 percent; Lolita, 21 percent; Brave New World, N/A; The Sound and the Fury; 93 percent; Catch-22, 56 percent; Darkness at Noon, (unavailable); Sons and Lovers, 96 percent; Grapes of Wrath, 92 percent.

What does all this information mean? Again draw your own conclusions. It may be a matter of style. Although The Sound and the Fury is technically simple, I don’t think one would suggest that a less than sixth grade reading level is needed to read and understand it. Still I wonder if someone could cull the data and find that better writing correlates with simpler words and sentences. That idea reminds me of Orwell’s "Politics and the English Language" where he is clear that he does prescribe rote rules of language or “setting up of a “standard English’” but still offers some rules to guide writers:

(i) Never use a metaphor, simile, or other figure of speech which you are used to seeing in print. (ii) Never us a long word where a short one will do. (iii) If it is possible to cut a word out, always cut it out. (iv) Never use the passive where you can use the active. (v) Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent. (vi) Break any of these rules sooner than say anything outright barbarous.

Sounds like marching orders. Marching orders from Orwell. Hmmm.

For those curious about readability etc., Amazon gives three scores based on the Fog Index, Flesch Index, and the Flesch-Kincaid Index. The site had explanations of what readability meant but the link seems to be dead for a few weeks now. It seems that the Fog index is the Gunning Fog index which uses this formula ((words/sentence) + 100 * (complex words/words)) * 0.4 where complex words are words with three or more syllables. The score will be from the single digits on up. The score equals the grade reading level. So a score of eight means an eighth grade reading level is required; a score of 12, a twelfth grade level, and so on. The Flesch-Kincaid formulas purport to show readability as well.

Posted by Deven_Desai at 07:11 PM | Comments (2) | TrackBack

Update on AT&T Surveillance Class Action

Orin Kerr has written about the case:

[T]his is (as far as I know) the first judicial opinion to express a view of the merits of the NSA program. Even if it’s dicta, the reasoning is unimpressive, and it is based only on facts alleged in the EFF’s complaint, Judge Walker’s statement that it “cannot seriously [be] contended” that “the alleged domestic dragnet was legal” based on the complaint seems likely to impact the debate.

You can read how Orin reached this conclusion here.

Posted by Deven_Desai at 12:07 PM | Comments (0) | TrackBack

J'Accuse!

J'accuse enfin le ... conseil de guerre d'avoir violé le droit, en condamnant un accusé sur une pièce restée secrète....

Today is the 100th anniversary of the end of one of the more astounding legal episodes in modern history, the Dreyfus Affair. French President Jacques Chirac marked the occasion on July 12 (Fr.; BBC coverage) by giving a speech honoring Alfred Dreyfus, a French artillery captain convicted of treason in 1894. July 12, 1906, was the date on which the Supreme Court of Appeal reversed Dreyfus's conviction and finally proclaimed him innocent; on July 21, in recognition of all he had been through, Dreyfus was made a Chevalier of the Legion of Honor in a ceremony held at the Ecole Militaire. In response to cheers of "Vive Dreyfus!", Dreyfus famously responded, "No, gentlemen, I beg of you. Vive la France!"

The Dreyfus Affair is a story about an egregious abuse of the legal system, driven primarily by a powerful current of French antisemitism and by a desire to shield the French military from its own mistakes. It involves procedurally flawed court-martials, secret evidence, conspiracies, theft of government secrets, deportation to a brutal island prison, leaks to the press, leak prosecutions, riots by antisemitic mobs, and a cover-up and whitewash perpetrated at the highest levels of the French military. As that list should indicate, the affair is ripe with allegorical potential, for all sorts of different purposes, but Americans aren't very familiar with it.

The affair began when French intelligence officers intercepted an unsigned letter to a German military attaché giving away military secrets. Based on unfounded suspicions, his Jewish ancestry, and a ludicrously lax handwriting comparison, Dreyfus was court-martialed for treason. The court-martial was closed to the public and the evidence used against Dreyfus was classified. To firm up the weak case against Dreyfus, the judges were presented with a secret document the existence of which was not even revealed to Dreyfus's defense counsel. On the basis of the secret evidence, Dreyfus was convicted and sentenced to life imprisonment at the penal colony at Devil's Island in French Guiana. He was first forced to undergo public humiliation in the courtyard of the Ecole Militaire by having his insignia stripped from his uniform in a "degradation" ceremony. An antisemitic crowd of around 20,000, whose antagonism had been whipped up by the press, was there to jeer at him.

Dreyfus's family urged his innocence at every opportunity, but they were stymied. In 1896, a second letter was intercepted, this one specifically naming Infantry Major Ferdinand Walsin-Esterhazy as the spy. The new chief intelligence officer, Lt. Col. Georges Picquart, immediately re-examined the Dreyfus file and became convinced Dreyfus was wrongly convicted and that Esterhazy was guilty. His attempts to get the General Staff to reopen the case, however, were met with resistance. Instead, the existence of the secret file against Dreyfus was leaked to the press in an effort to cinch Dreyfus's guilt, and a newly forged document specifically naming Dreyfus as the guilty party was also leaked. Picquart was soon transferred to Tunisia, but while on leave engaged in leaks of his own: he confided the information about Esterhazy to a civilian friend, who in turn provided it in confidence to Vice-President of the Senate Auguste Scheurer-Kestner. But Scheurer-Kestner was unable to make any headway in uncovering further evidence.

It's about here that the story turns from injustice to farce.

At a meeting, General Billot, the Minister of War, General Gonse, the Deputy Chief of the General Staff, Major Joseph-Hubert Henry, the forger of the new evidence against Dreyfus, and Dreyfus's biased prosecutor, Commandant Armand du Paty de Clam, decided to warn Esterhazy, the spy, of the suspicions against him so that he could act more discreetly in the future. Indeed, after Esterhazy met with his German handler one more time, he met with du Paty de Clam, who promised him protection. Not long after, however, Esterhazy's banker recognized his handwriting on a copy of the original 1894 letter to the German attaché, which Dreyfus's family had circulated. Scheurer-Kestner publicly declared Dreyfus innocent, and Dreyfus's brother filed suit against Esterhazy. Responding to the charge, the military conducted a hasty court-martial against Esterhazy, again in closed session, and he was promptly acquitted. Instead, Lt. Col. Picquart was arrested and jailed for passing secret military information to civilians.

At that point various French intellectuals began to rally to Dreyfus's cause, including Émile Zola, who published his famous letter, titled "J'Accuse!", in a French newspaper in January 1898. Zola accused various members of the French military of having railroaded Dreyfus and covered it up:

I accuse Lt. Col. du Paty de Clam of being the diabolical creator of this miscarriage of justice-- unknowingly, I am willing to believe-- and of defending this sorry deed, over the last three years, by all manner of bizarre and evil machinations....

I accuse General Billot of having held in his hands absolute proof of Dreyfus’s innocence and concealing it, thereby making himself guilty of crimes against mankind and justice, as a political expedient and a way for the compromised General Staff to save face.

I accuse General de Boisdeffre and General Gonse of complicity in the same crime, the former, no doubt, out of religious prejudice, the latter perhaps out of that esprit de corps that has transformed the War Office into an unassailable holy ark....

I accuse the offices of the War Office of having used the press, particularly L’Eclair and L’Echo de Paris, to conduct an abominable campaign to mislead public opinion and cover up their own wrongdoing.

Finally, I accuse the first court martial of violating the law by convicting the accused on the basis of evidence that was kept secret, and I accuse the second court martial of covering up this illegality, on orders, by committing the judicial crime of acquitting a guilty man with full knowledge of his guilt.

An English translation is here; the original French can be found here.

The Zola letter marked a dramatic turning point, where public pressure began building on the French government to conduct a proper investigation into the affair. French society split between "Dreyfusards" and Dreyfus's mostly antisemitic opponents, such as the Ligue Antisémitique Française. A Dreyfusard became President and there was an anti-Dreyfusard coup attempt. Zola was criminally charged with libel against the various parties he accused, and his subsequent trial was a sham. He was convicted, and fled to London.

Later that year, however, the 1896 Henry forgery was finally revealed; Henry confessed and committed suicide, and the new Minister of War resigned along with two members of the General Staff. In 1899, the Supreme Court of Appeals finally heard Dreyfus's appeal and overturned his treason conviction, granting him a new trial. He was brought back to France, re-tried before a court-martial, and convicted again. Due to "extenuating circumstances," i.e., the fact that someone else had been proven to be the guilty party, the military court lessened Dreyfus's sentence to ten years' detention, five of which he had already served.

Ten days later, amid an international uproar over the verdict, French President Émile Loubet pardoned Dreyfus, and the Minister of War pronounced the matter closed. Picquart was released from prison, and the Chamber of Deputies passed a general amnesty law that applied to all parties involved in the affair, including Zola. Zola, however, died under mysterious circumstances of carbon monoxide poisoning in 1902. Dreyfus, meanwhile, was allowed to pursue an appeal of his second conviction, which finally led to the Supreme Court of Appeal reversal in 1906.

Online references:

Dr. Jean-Max Guieu, Timeline of the Dreyfus Affair

BBC News, The Dreyfus Affair: 100 Years On, July 11, 2006.

Wikipedia, Dreyfus Affair pages

Israel Department for Jewish Zionist Education, "Dreyfusgate"

Donald E. Wilkes, Jr., "J'Accuse...!" Emile Zola, Alfred Dreyfus, and the Greatest Newspaper Article in History.

[Update: Typos corrected.]

Posted by Bruce_Boyden at 11:58 AM | TrackBack

Claim of Unilateral Mistake Confers Right to Repossess Non-Financed Car?

A quick contracts/property/tort/consumer law hypothetical for incoming first-year law students (and their professors) to ponder over:

Car dealer sells a used pick-up truck to Buyer for $8,100 and a trade-in. Buyer pays the full amount by personal check and drives the truck off the lot. Dealer then calls Buyer at home and tells him that they looked up the wrong number in their book; the truck actually costs $10,000 more. Dealer tells Buyer