Archive for July, 2006
Amazon’s Text Stats and a Little Orwell
posted by Deven Desai
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.
July 22, 2006 at 7:11 pm
Posted in: Culture
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Update on AT&T Surveillance Class Action
posted by Deven Desai
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.
July 21, 2006 at 12:07 pm
Posted in: Privacy (Electronic Surveillance), Privacy (National Security)
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J’Accuse!
posted by Bruce Boyden
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.
July 21, 2006 at 11:58 am
Posted in: History of Law
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Claim of Unilateral Mistake Confers Right to Repossess Non-Financed Car?
posted by Bruce Boyden
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 that either he has to return the car and they’ll pay him $500 for his trouble, or he needs to cough up the extra $10,000. Buyer refuses.
In the middle of the night, the Dealer comes and “repossesses” the truck from Buyer’s driveway. Buyer’s trade-in is returned to him. Buyer’s check is not cashed.
Dealer claims that the contract was invalid because “one party ma[de] a mistake, and the other party knew or should have known that a mistake was made.” (See here for more details from WTVF-Nashville, and note the video link on the upper right. The file-dropping bit seems right off the Daily Show.) Assume that the Blue Book value of the truck is $21,240, and the trade-in was worth only a nominal amount.
Discuss; was there a valid contract? What claims does Buyer have, and even more important, what remedies should he get?
(HT: Consumerist)
July 21, 2006 at 12:22 am
Posted in: Consumer Protection Law, Contract Law & Beyond
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The U.N. Human Rights Commissioner Who Cried Wolf
posted by Dave Hoffman
U.N. Commissioner Louise Arbour said today about Hezbollah, Gazan forces, and Israel that:
Indiscriminate shelling of cities constitutes a foreseeable and unacceptable targeting of civilians. Similarly, the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable. International humanitarian law is clear on the supreme obligation to protect civilians during hostilities. This obligation is also expressed in international criminal law, which defines war crimes and crimes against humanity. International law demands accountability. The scale of the killings in the region, and their predictability, could engage the personal criminal responsibility of those involved, particularly those in a position of command and control.
I am not in any way an expert in the laws of law. These folks are, but they haven’t blogged the story yet. Is the theory that the laws of war require laser guided bombing? And, in any event, did the region really need more asymmetric, empty, blundering threats? (Hezbollah and the Gazan militants are, in domestic parlance, judgment proof as against war crime tribunals).
[Update: Lynn's comment below suggests I ought to have been less glib and more clear. Isn't the commissioner's statement at least very premature, given that the fog of war is still blooming?]
July 20, 2006 at 10:18 pm
Posted in: International & Comparative Law
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Must District Judges Give Reasons?
posted by Dave Hoffman
Jonathan Adler highlights this astonishing Ninth Circuit opinion on the alleged misconduct of now-embattled District Judge Manuel Real. Some interesting facets of the case (previously blogged about here, here, and elsewhere). First, dissents matter. It is more than tempting to attribute the current push to impeach Judge Real to Judge Kozinski’s harsh dissent from the panel’s order exonerating him on the misconduct charge. Second, the case raises a neat issue which relates to what I’ve been writing this summer. While the overall facts of the case are well worth reading in the original, if you’ve ten or twenty minutes, I want to focus briefly on part of Judge Kozinski’s charge against Real: that he failed to explain the reasoning for a controversial order.
The basic story is that Judge Real withdrew the petition in a pending bankruptcy case and stayed a state-court judgement evicting a woman who was appearing before his court in a criminal matter. Both orders were entered apparently sua sponte, or at least without hearing the evicting party’s arguments. According to Kozinski, Judge Real “gave no reasons, cited no authority, made no reference to a motion or other petition, imposed no bond, balanced no equities. The two orders [the withdraw and stay] were a raw exercise of judicial power…” In a subsequent hearing, Kozinski continued, “we find the following unilluminating exchange”:
The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”Attorney for Evicting Party: May I ask the reasons, your Honor?
The Court: Just because I said it, Counsel.
Kozinski wrote:
I could stop right here and have no trouble concluding that the judge committed misconduct. [Not only was there a failure of the adversary process . . . but also] a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law . . . they lend legitimacy to the judicial process by ensuring that judicial action is-and is seen to be-based on law, not the judge’s caprice . . . [And later, Kozinski exclaims] Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions-not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg. [DH: Check out the order of authority!]
So here’s the issue: in the ordinary case, to what extent are judges required to explain themselves?
July 20, 2006 at 8:30 pm
Posted in: Behavioral Law and Economics, Current Events, Economic Analysis of Law, Empirical Analysis of Law, Law School (Scholarship), Legal Theory, Sociology of Law
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Hide and Seek: Class Action Against AT&T For Alleged Spying To Proceed
posted by Deven Desai
I am in the middle of arranging for movers so I can’t give any great detail on this one but CNET reports that:
A federal judge rejected on Thursday both the U.S. government’s and AT&T’s requests to dismiss a class-action suit accusing the telephone giant of assisting the National Security Agency in a sweeping, allegedly illegal terrorist surveillance program.
I hope that Orin Kerr or Dan Solove will provide some thoughts on the opinion. Nonetheless for those who wish to jump in and read the opinion, Judge Vaughn Walker’s 72-page opinion is available here.
A quick scan suggests that Judge Walker addresses many nuances of the program in question. For example, page 38 of the opinion has a chart that “summarizes what the government has disclosed about the scope of these programs in terms of (1) the individuals whose communications are being monitored, (2) the locations of those individuals and (3) the types of information being monitored.”
Examining the chart Judge Walked found that:
The government’s public disclosures regarding monitoring of “communication content” (i e, wiretapping or listening in on a communication) differ significantly from its disclosures regarding “communication records” (i e, collecting ancillary data pertaining to a communication, such as the telephone numbers dialed by an individual). See supra I(C)(1). Accordingly, the court separately addresses for each alleged program whether revealing the existence or scope of a certification would disclose a state secret.
Finally the court stated, “In sum, the court DENIES the government’s motion to dismiss, or in the alternative, for summary judgment on the basis of state secrets and DENIES AT&T’s motion to dismiss.”
July 20, 2006 at 5:54 pm
Posted in: Privacy (Electronic Surveillance), Privacy (National Security)
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Student Notes R.I.P. or Survive on SSRN?
posted by Deven Desai
A student asked me what happens to notes that are not accepted for publication on a law review. When I mentioned that they may be submitted to other journals but often they are not published, she seemed a little down about the work not being seen.
As I thought about the topic, I came to a few questions. Does anyone know whether students are putting notes on SSRN or assuming some are posting how many do so? Is there a policy about who can post? Furthermore, is it fair to ask whether they should be “allowed”, as it were, to put work on SSRN? On one hand, the amount of information (some good and some perhaps not so good) would increase but I could see arguments about too much noise or information overload being raised. Then again, one already has to wade through volumes of information using search strings and the like so perhaps adding more narrow but hopefully well done pieces to that pool will allow scholars to focus on large implications of their research and use the increased access to notes as a way to more efficiently see what work has been done on a particular topic that is a footnote or small part of the scholar’s work. So although I would suggest one should be careful using such information because it has not been screened, I think accuracy and quality issues are always in play and a researcher must continually use his or her own judgment regarding how much to trust any piece.
So what do people think? Should unaccepted notes R.I.P. or should they survive on SSRN?
July 20, 2006 at 2:37 pm
Posted in: Law School (Scholarship)
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Florida Travel Ban
posted by Eduardo Penalver
A colleague of mine and I are working on an amicus brief concerning a new Florida law that hasn’t received much attention outside of the state. Here’s a link to a Miami Herald article on the law and on the ACLU’s lawsuit challenging its validity on behalf of a group of Florida professors. The law would prohibit any use of state funds for academic travel to countries designated as terrorist states by the State Department and would prohibit faculty at Florida’s state universities from traveling to those countries even if they use private funds. Of course, while the law is worded in terms of “terrorist states,” this is Florida, so it’s really all about Cuba. (UPDATE: To be a bit more clear, the law only prohibits privately funded travel to “terrorist states” when the private funds are routed through the state university, which is typically the case for academic grants from private foundations. The law does not, however, apply to private travel by academics using their own personal finances. So, in response to one of the comments, it would prohibit a math professor from attending a conference in Tehran using his university research budget or even research money from a private foundation, but it would not prohibit a Cuban-American scholar from using her own money to visit family in Cuba. Here’s a link to the law’s text.)
In addition to the obvious preemption/foreign affairs issues, the law raises interesting First Amendment questions. The difficulty in preparing the amicus brief has been finding analogous cases. Our first instinct was to discuss the law as an intrusion on academic freedom. The public forum cases seem to present another promising approach, but, at least in the university context, most of them focus on the rights ot students to engage in various forms of speech on campus.
The interesting thing is that I have not been able to find a comparably broad prohibition on an entire class of research activities. The closest I found was a Virginia law prohibiting people from accessing sexually explicit material on state computers, and even that permitted academics to get dispensation from the university to pursue research activities. Moreover, it involved regulation of state property and not, as in our case, prohibition on the use of private funds for research. All of this leads me to believe that the Florida law is more than a little nutty. But I’d love to get comments from anyone who has come across a similarly far-reaching state prohibition on academic activity.
July 20, 2006 at 11:28 am
Posted in: Uncategorized
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IP Wars
posted by Deven Desai
YouTube has a good but not great take on Darth Vader’s little known brother, Chad. I wouldn’t watch all the way to the end but the first three minutes are solid and for any fan of the Star Wars films there are some good plays on the dialogue and scenes. Which leads me to a perhaps sad yet currently inevitable note. The IP Wars drone on and YouTube faces a copyright lawsuit.
Perhaps someday a young attorney or scholar will ask an aging IP attorney “You fought in the IP Wars?” with awe because we will have unraveled how to develop, and let’s face it, make money on information yet manage to keep the information free-flowing so that expression and education can flourish. In a sense I think that conundrum is what Professor Yochai Benkler highlights in his book the Wealth of Networks. As someone wrestling with these questions, I anticipate and welcome your thoughts on the big question but here are the details of the YouTube suit to give some context of one slice of the IP Wars and perhaps offer facts with which to test the possible solutions. In addition, thanks to Bruce’s entry Don’t Write Angry for noting when arguments become more yelling matches rather than explorations of what to do to fix the problem. Now on with the current episode of IP Wars.
Apparently someone posted the video of the Reginald Denny beating during the 1992 riot in Los Angeles. According to the article, Robert Tur, the man who made the film, has sued claiming that the posting hurts his ability to license the video and that YouTube has profited from more than 1,000 viewings of the film. It seems that rather than ask YouTube to take down the clip under DMCA provisions, Mr. Tur filed suit. YouTube removed the clip after it knew about the lawsuit.
Whether Mr.Tur really makes that much money from licensing would be interesting to know. I frankly had not thought of the video until the lawsuit and would not want to pay to see it. Furthermore, it seems that historians should be allowed to show the clip in its entirety but of course that position runs smack into fair use problems. Nonetheless, consider that a Saturday Night Live clip was a hit on YouTube. It had at least 5 million downloads (assumedly from many who did not see the show which in 2004 seemed pleased with peaks of around seven million viewers) but NBC asked that it be removed. NBC does sell the clip on iTunes but it also allowed the clip to be seen on its Web site in an embedded player. I wonder whether NBC just hates great, free advertising or whether it really believes it can make more money by aggressive policing of its IP.
July 19, 2006 at 5:13 pm
Posted in: Intellectual Property
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Don’t Write Angry!
posted by Bruce Boyden
Way too much writing about copyright issues is done by first, allowing your blood pressure and heart rate to rise as high as possible, and then second doing your entire article (or blog comment) in “steamed” mode. This tends to lead to not-so-insightful analysis. An example appeared in this morning’s Washington Post in Steven Pearlstein’s article, “A Sound Marketplace For Recorded Music,” which focuses (eventually) on the record labels’ lawsuit filed last month against XM Satellite Radio.
The RIAA complaint alleges that XM’s new “XM + MP3″ service, which transmits to XM’s associated “Inno” receiver, falls outside the statutory license provisions for digital music transmissions and therefore violates the Copyright Act. There’s some interesting issues there, but they’re hard to glean from Pearlstein’s article.
First, Pearlstein makes the standard swipes at “monopolists” shutting down “innovation.” This isn’t much more illuminating than the standard rhetoric from large copyright owners, that “pirates” are destroying incentives. It gets very murky when you realize that “innovation” and “piracy” are not distinct categories — you can have innovative pirates. Whether a given service is or should be legal can’t be determined based on these labels, unless you’re an extremist.
July 19, 2006 at 3:14 pm
Posted in: Intellectual Property
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What doctrinal facts drive scholarship?
posted by Nate Oman
I recently had a conversation with an acquaintance about the predicament of con law scholars. He made the point that the decline in the Supreme Court’s docket has had a big impact on con law scholarship. It used to be the case, he said, that the Court was churning out enough new decisions that con law professors could keep busy working out doctrinal puzzles and fitting the new cases into their vision of the fabric of constitutional law. With fewer cases to work on, however, con law professor have to find something else to do.
It got me thinking about how the law influences legal scholarship. For example, right now I am working on a project in contract law. Here it seems to me that one of the main legal facts influencing scholarship is the sheer stability of contract doctrine. It wouldn’t do to over state this, of course. Contract law continues to evolve and new cases come out that try to fit new practices into old categories. Still, thanks I suspect to the success of the Restatements, much of contract law is fixed, and has been fairly fixed for quite some time. Hence, one of the main puzzles is working out why the particular shape that the law has might or might not be justified. There is less interest in figuring out how the Georgia Supreme Court’s latest consideration case fits into the law than in trying to figure out what the basis of consideration might be. Indeed, one of the striking things about contract is that you can read theoretical discussions of contract doctrine from the 1930s and 1940s and in many ways (although not all) the doctrinal discussion doesn’t seem especially dated. There aren’t all that many cases where you read something by Lon Fuller or Morris Cohen and think, “Well that is no longer the rule….”
If con law is characterized by a decreasing flow of cases to write about and contract is characterized by a (relatively) stable set of rules, I wonder what the doctrinal facts driving discussions in other fields might be.
July 19, 2006 at 1:38 pm
Posted in: Contract Law & Beyond
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Cruel and Unusual?
posted by Deven Desai
A British appellate court has ordered a lower court to watch Jerry Springer so that it can resolve a dispute between the distributors of the “Jerry Springer Show” in Britain and a British television company.
The television company claimed that “By 2001… the ‘vast majority’ of episodes contained content which was unsuitable for daytime viewing and which did not comply with the Independent Television Commission code” and terminated the deal. The distributors claimed breach of contract.
Assuming the article is correct about the content of the order, Lord Justice David Neuberger was not insensitive to the torturous nature of the order:
It must be necessary for the judge who determines such issues to see at least some of the episodes of the two series (although I would strongly encourage the parties to agree a sensible basis upon which the trial judge can reach a conclusion on the two ultimate issues without having to view anything like the totality of all the episodes of both series).
Apparently being downhill has its perils in Britain too.
July 18, 2006 at 5:05 pm
Posted in: Culture
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Video Games as Art?
posted by Bruce Boyden
So I’m listening to one of my favorite soundtracks — from the game, Half-Life. Video games are becoming more and more like cinematic experiences. (In many cases, they are being converted into really bad cinematic experiences, such as the Doom movie or Alone in the Dark, but that’s not my point right now.) In addition to soundtracks, video games like Half-Life have plots, scenes, characters, and dialog. A lot of this is rudimentary — the dialog, for example, is pretty limited, and character development is sparse — but it adds a level of depth and complexity to games that only recently were as simple as Space Invaders.
Still, as Roger Ebert pointed out last year, it’s silly to think they rival movies as story-telling formats:
“[V]ideo games [are] inherently inferior to film and literature. There is a structural reason for that: Video games by their nature require player choices, which is the opposite of the strategy of serious film and literature, which requires authorial control.”
Ebert got a lot of hate-mail from gamers for this comment, but I think he’s essentially correct that games are inferior story-telling devices, at least given today’s technology. The more interesting question is whether the loss of “authorial control” that Ebert correctly ascribes as the fundamental difference between a game and a movie makes games “inherently inferior” as narrative devices.
Half-Life and Half-Life 2 illustrate both my points and Ebert’s.
July 18, 2006 at 4:06 pm
Posted in: Culture, Technology
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Using a feminine universal
posted by Kaimipono D. Wenger
In my lectures and class discussions (and out of class, for that matter), I tend to use a universal female pronoun. Not in cases where a universal is inappropriate because it conflicts with specific facts, obviously — “Mr. Jones went to the bank and she deposited her check.” But in cases where a universal pronoun is used, and where traditional English would therefore call for a “he,” I tend to use “she.” (Ditto for “her,” “hers,” and so forth). Thus, “for a testator to execute a will, she has to meet the following requirements.”
This is normally not much of a problem. Substituting she for he is not exactly rocket science.
July 18, 2006 at 1:16 pm
Posted in: Feminism and Gender, Law School, Law School (Teaching)
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The Judicial Salary Problem
posted by Dave Hoffman
Peter Lattman highlights some recent comments by Chief Justice Roberts. The Chief Justice talked, in part, about the campaign to raise the salary of federal judges:
At current salaries, “you no longer can draw the best trial lawyers, on a regular basis,” to the federal bench, Roberts said. While no one becomes a judge to get rich, he said, the government “ought to pay them enough so they can educate their children and have a reasonable lifestyle.”"We don’t want to get to the point where we have the judiciary staffed solely by people of independent means, or by people for whom the judicial pay scale is a raise,” he said.
A few comments.
First, I wonder why the Chief Justice refers to “trial lawyers” as the appropriate pool. Even to the extent that he means “litigators” (because there are vanishingly few trials for judges to preside over), is there any reason, in theory, to think that litigation departments produce better jurists than corporate departments? I wonder. Considering that most of the job of the modern district judge is management of a process through to settlement, it would seem that corporate attorneys – at least ones who like to write – have a leg up.
Second, I (along with many others) question the claim’s empirics. The studies I have seen suggest that pay is not correlated with judicial decisions to retire (early). (The evidence is concededly mixed). It would be also quite surprising if it is correlated with agreeing to be nominated to the bench in all but the anecdotal case. The legal profession is acutely status conscious: lawyers who are in the position to be nominated have already demonstrated (through public service, or political connections, or effort) that they are particularly motivated by prestige as a substitute for cash. Moreover, it is a well-accepted fact that it is better to be a hammer than a nail. In our system, judges aren’t the nails. (Most of the time). In short, I think that even if you cut real federal judicial starting salaries (by keeping them constant despite inflation) the applicant pool would not significantly change.
But those are, essentially, market-clearing arguments, and don’t persuade me that the Chief Justice’s “real” point is wrong. Roberts has a better argument.
July 17, 2006 at 10:00 pm
Posted in: Economic Analysis of Law
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Populism, Markets, and Walmart
posted by Nate Oman
I have a friend who is something of a populist. A political philosopher and sometime resident of the rural south, he is in favor of things like a living wage, dry laws, prayer at town meetings, and a high protective tariff. In particular, provided that there is substantial support by “the people,” he is willing to support all sorts of measures that are fairly authoritarian by the standards of traditional liberal political theory. Needless to say, his thinking is much, much more nuanced than I have presented it here, and he can talk about Rousseau, Marx, and Herder is all sorts of sophisticated and interesting ways. He doesn’t, however, much like markets, and in this he is typical of many self-described populists. I can’t help but thinking that there is something odd about this.
In a real sense populism is all about taking expressed preferences seriously. The populist response to liberal concerns about the distinction between the right and the good, public reasons, and all of the other conceptual hedges against overweening democracy is to point out that much of this stuff is simply elitist clap trap, a set of spurious distinctions designed to insulate what affluent and well-educated coastal populations happen to like from the rawer, more authentic sensibilities of the heart land. “Down with it!” the populists argue. People ought to be able to live in a society that actually reflects the values and commitments that they have, rather than one where the expression of those values has been manipulated by elite categories into a more antiseptic form that conforms to elite sensibilities rather than popular sensibilities.
Markets are also about taking expressed preferences seriously. They are frequently not pretty. Both Britney Spears and Walmart are products of the market, and both seem to satisfy expressed preferences. Nor are these preferences the atomized, individualistic things that the heirs of Rousseau like to impute to liberals. Price is about the aggregation of preferences, and it is price that allocates goods within the market. Hence, the desire for cheap stuff — and with it a bit more real disposable income — is, like school prayer and dry laws, an authentic expression of the will of the people. Indeed, given that participation in politics is sporadic at best, while participation in the market is ubiquitous, if anything prices have a greater claim to expressing the General Will than plebiscites.
July 17, 2006 at 12:40 pm
Posted in: Politics
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Welcome to the Blogosphere: Jurisdynamics
posted by Daniel Solove
Jim Chen (law, Minnesota) has a new blog called Jurisdynamics. From the introductory post:
This blog openly embraces a dynamic model of legal change. Jurisdynamics describes the interplay between legal responses to exogenous change and the law’s own endogenous capacity for adaptation. The world that law tries to govern has has become “so vast that fully to comprehend it would require an almost universal knowledge ranging from” economics and the natural sciences “to the niceties of the legislative, judicial and administrative processes of government.” Queensboro Farms Prods., Inc. v. Wickard, 137 F.2d 969, 975 (2d Cir. 1943). Within the realm of legal scholarship, this blog aspires to the goal that historian David Christian set out for his discipline: “that the appropriate time scale for the study of history may be the whole of time.” David Christian, The Case for “Big History,” 2 J. World Hist. 223, 223 (1991). Jurisdynamics will present the case for “big law,” for the proposition that the substantive scale on which law should be studied, taught, and learned is the entirety of human experience. . . .
Jurisdynamic tools include:
* Mathematics, statistics, and empirical analysis, including bibliometrics
* Language, linguistics, and interpretation
* Complexity theory
* Evolutionary biology and behavioral psychology
Naturally jurisdynamic subjects include:
* Innovation policy and intellectual property
* Economic regulation, antitrust, and competition policy
* Environmental protection, natural resources, and agriculture
* Natural disasters and other emergencies
* Trade, development, and public finance
* Constitutional law and democratic governance
Jim is a wide-ranging scholar and is always fascinating. Not only has he written dozens of law review articles and several books, but he has also penned seven articles as alter ego Gil Grantmore, making him the only law professor who would have a claim to tenure under two different names. Some of his Gil Grantmore articles include But cf., 20 Const. Comment. 5 (2003); Lex and the City, 91 Geo. L.J. 913 (2003); The Phages of American Law, 36 U.C. Davis L. Rev. 455 (2003); and The Death of Contra, 52 Stan. L. Rev. 889 (2000). Welcome to the blogosphere, Jim! And I look forward to Gil’s blog sometime soon.
July 16, 2006 at 6:46 pm
Posted in: Blogging
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NSA Surveillance Song
posted by Daniel Solove
For some NSA surveillance humor, check out this animated song, adapted from Stevie Wonder’s “I Just Called to Say I Love You.”
July 14, 2006 at 9:48 pm
Posted in: Humor, Privacy (National Security)
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The NSA Bill in the Mainstream Media vs. the Blogosphere
posted by Daniel Solove
In reading the mainstream media accounts, one would get the impression that Senator Specter’s NSA surveillance bill is a compromise with the Administration, a way to limit Executive power, and that the Administration is reluctantly capitulating to judicial oversight.
New York Times: “Bush Would Let Secret Court Sift Wiretap Process.” The article states that the “proposed legislation represents a middle-ground approach.”
Reuters: “Bush agrees to court review of spy program”
LA Times: “Bush Agrees to Review of Domestic Spying Program: The tentative proposal would let a secret court decide whether the NSA can eavesdrop on Americans without first obtaining warrants.”
Associated Press: “Bush Agrees to Eavesdropping Court Review”
Washington Post: “Bush Compromises On Spying Program: Senate Bill Would Permit Court Review”
How can it be that they all seem to have almost identical news stories? Did they all get together to write the same story? The content of these stories is quite similar — they all seem to be based largely on interviews with Specter and his staff. Occasionally, there’s a quick soundbite from Senators Leahy or Feingold, but by and large, the mainstream media accounts are remarkably the same. It is as if Senator Specter and the Bush Administration’s PR team had written the stories.
The articles barely contain a whiff of what the blogosphere contains, which paints a very different picture of Specter’s bill.
Orin Kerr: “Maybe I’m missing something, but my sense is that it largely tracks the David Addington/John Yoo approach to Article II; that is, it would have Congress back away from the claims to authority that Congress made in 1978 that the Administration has suggested it believes are unconstitutional because they infringe on the Commander-in-Chief power.”
Marty Lederman: “So what does Specter do in the wake of the momentous Hamdan decision, which put all the cards in Congress’s hands? He introduces a bill, with Administration blessing, that gives the Administration everything it ever wanted, and much, much more. Indeed, come to think of it, the Specter bill is basically the sort of legislation one would expect if the Supreme Court had just held that Congress is powerless to enact legislation constraining the President’s “inherent” war powers — something that not a single Justice in Hamdan so much as suggested.”
Steve Vladeck: “The bill is remarkable in a number of respects, including that it does not require the President to submit the [NSA surveillance program] to the FISA Court, but does require transfer of a whole host of other actions to the FISA Court, where proceedings are ex parte and often secret.”
Hmmm. So the Bush Administration agrees to do what the law already requires it to do. It’s like a bank robber agreeing to set up a legitimate bank account. But what’s more, the bill doesn’t even require the Administration to go to the FISA court; and it gives the Administration a ton of new powers. To return to the bank robber analogy, it’s like authorizing the robber to continue to steal if he wants to; and providing him with a special entrance to the bank and a personal set of keys to the vault.
Of course, the mainstream media need not be as extreme as I am in describing the bill, but perhaps just a tiny bit of balance might be in order. At least provide a more complete account of the bill, not one that comes with the incredible spin that Specter and the Administration have put on it. Perhaps consult an independent expert or two. I thought the media’s job is to do some independent reporting, not just copy down what they’ve been told. I guess I was wrong.
July 14, 2006 at 1:59 pm
Posted in: Blogging, Privacy (National Security)
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