Archive for August, 2006
Security Choices
posted by Daniel Solove
In discussing security vs. civil liberties, I’ve argued that too little questioning of the security side of the balance is going on. The government engages in some elaborate and expensive program in the name of security, and instantly the debate shifts to whether we can deal with the sacrifices in civil liberties. The effectiveness of the security measure is rarely questioned, and the defense of this position is that government security officials have the expertise and shouldn’t be second guessed. But security is about choices. And I wonder whether we’re making wise ones when it comes to security. I found the following article to be particulary disheartening:
A pipeline shuts down in Alaska. Equipment failures disrupt air travel in Los Angeles. Electricity runs short at a spy agency in Maryland.
None of these recent events resulted from a natural disaster or terrorist attack, but they may as well have, some homeland security experts say. They worry that too little attention is paid to how fast the country’s basic operating systems are deteriorating. . . .
The American Society of Civil Engineers last year graded the nation “D” for its overall infrastructure conditions, estimating that it would take $1.6 trillion over five years to fix the problem. . . .
Then an instrument landing system that guides arriving planes onto a runway at Los Angeles International Airport failed for the second time in a week, delaying flights.
Those incidents followed reports that the National Security Agency (NSA), the intelligence world’s electronic eavesdropping arm, is consuming so much electricity at its headquarters outside Washington that it is in danger of exceeding its power supply. . . .
The Commission on Public Infrastructure at the Center for Strategic and International Studies, a Washington think tank, said in a recent report that facilities are deteriorating “at an alarming rate.”
Infrastructure is part of national security too, but it doesn’t seem to be much of a priority right now for the government. A lot of money is being spent on data mining, NSA surveillance, and more. Could this money be better used? I’m not an expert, but I do believe we need a better system for assessing the effectiveness of security measures. Right now, many seem to be undertaken with little accountability. Congress won’t second guess. The courts often won’t second guess — even when rights are at stake. But somebody needs to second guess. When it comes to security, an area where we’re inclined to act more emotionally than scientifically, how do we create a system that provides adequate scrutiny for our security choices?
August 28, 2006 at 12:01 am
Posted in: Privacy (National Security)
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Copyright and Bar Exam Questions
posted by Daniel Solove
A federal district court recently held that PMBR was liable for a copyright violation for using questions from the Multistate Bar Examination in its classes and materials. PMBR, the “Preliminary Multistate Bar Review,” is a bar exam preparation course. The opinion is available here.
The court concluded that many of the questions in PMBR’s materials are similar to those on the Multistate Bar Exam. In assessing damages, the court noted that “[s]ince plaintiff lost no hypothetical royalties, I cannot award actual damages in compensation. I can and will, however, factor the uniquely proprietary nature of the infringed questions
into apportionment of defendants’ profits.” Accordingly, the court awarded the plaintiffs nearly $12 million, one third of PMBR’s gross revenues during the time period of the violations. Moreover, the court held:
Defendants will be enjoined from copying, duplicating, distributing, selling, publishing, reproducing, renting, leasing, offering or otherwise transferring or communicating in any manner, orally or in written, printed, photographic or other form, including any communication in any class or other presentation, any questions obtained directly from any of NCBE’s copyrighted secure tests.
Hat tip: Lawschool.com
August 26, 2006 at 2:07 pm
Posted in: Intellectual Property, Law Practice, Law School
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Advice For New Law Students, Including My Own Small Suggestion
posted by Dan Filler
Seems like everyone is getting in on the advise-the-new-law-student game. The WSJ Law Blog links to (and succinctly summarizes) the wisdom of my old Alabama neighbor, Brannon Denning, Dahlia Lithwik, Vik Amar, Orin Kerr, and Jeremy Blachman.
Not enough for you? Paul Caron links to these, and other, sage insights on surviving law school.
I am also pretty partial to the unfolding advice of Belle Lettre. And Belle is right to recommend Spencer Overton’s suggestions over at BlackProf.
Dave Hoffman adds the useful suggestion that students turn off their phones.
May I be so bold as to add one more? Don’t get arrested.
I don’t know which of these real-life student confessions was worse: getting busted with PCP two weeks before law school or beating up a cop in a drunken haze during winter break. So rephrased into the the language of an office procedure manual, the successful law student makes a conscious effort to either avoid criminal conduct or organize his or her offenses in a reasonably discrete fashion.
August 25, 2006 at 9:42 am
Posted in: Law School
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Turn Off Your Cellphone or Go To Jail?
posted by Dave Hoffman
An Indiana state court judge held three spectators in contempt (and restrained them for “more than an hour”) after they allegedly refused to admit whose cellphone was ringing. Two spectators later admitted their malfeasance: one was fined $100, the other forced to serve 40 hours of community service. And a third spectator is to serve 40 hours for not telling the judge that he knew whose phone was ringing!
I hope there is more to the story than this. Because if there isn’t, this seems like a fairly tough, verging on punitive, remedy, especially for the spectator whose only contempt was not disclosing that he knew that another spectator’s phone had rung. Punitive contempt proceedings require more than summary justice.
This should also serve as a reminder to incoming first-year students. Turn your phones off. Professors, who may conceive of the classroom as a mini-courtroom, will certainly become annoyed if a phone rings during class. For what it is worth, my remedy is to call on the owner of a ringing phone, and continue to dialogue with them for the duration of class. My contracts class this fall lasts two hours. I imagine it won’t happen twice.
August 24, 2006 at 10:38 pm
Posted in: Sociology of Law
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Score that as E 26.1303 or How to Prevent the Study of Evolutionary Biology
posted by Deven Desai
The New York Times reports that “Evolutionary biology has vanished from the list of acceptable fields of study for recipients of a federal education grant for low-income college students.”
The Department of Education has claimed the omission is an error. You be the judge. The list is apparently a standard list that normally includes evolutionary biology, “the scientific study of the genetic, developmental, functional, and morphological patterns and processes, and theoretical principles; and the emergence and mutation of organisms over time” as 26.1303.
As Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers, noted students must use the code system to declare their majors and the claimed omission error “is ‘odd,’ … because applying the subject codes ‘is a fairly mechanical task. It is not supposed to be the subject of any kind of deliberation.’”
Furthermore as the article notes when one looks at the list there is a clear gap between 26.1302 and 26.1304. You can see the list here. Go to page 7 of the pdf to see the gap in question.
With the number removed, students in the National Smart (Science and Mathematics Access to Retain Talent) Grant program would not be able to receive the $4,000 grants available through the program if they declared evolutionary biology as their major. That means that while the country may want to develop the talent of “third- or fourth-year, low-income students majoring in physical, life or computer sciences; mathematics; technology; engineering; or foreign languages deemed “critical” to national security” evolutionary biology may not be up to snuff.
My guess is we will never know whether the omission was a lame attempt to sneak one by the public or whether someone thought it was a funny thing to remove but failed to revert to the correct version for publication. Still as one person quoted in the article put it: “Removing that one major is not going to make the nation stupid, but if this really was removed, specifically removed, then I see it as part of a pattern to put ideology over knowledge. And, especially in the Department of Education, that should be abhorred.”
August 24, 2006 at 5:40 pm
Posted in: Culture
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Finding Jupiter Optimus Maximus
posted by Nate Oman
It is not a horribly original point, but Americans expect a great deal from their courts. If we have some nasty and apparently insoluble social problem, we take it to the men in black robes and expect them to give us wonderful oracular solutions to our problems. (Amazingly, despite two centuries of failing to provide wonderful oracular solutions to social problems, we still go to court!) And of course, we surround our courts with this oracular mystique. The judges wear priestly robes. They emerge from within an inner sanctum in which they commune with the ineffable wisdom of the law. The Supreme Court Building is modeled on a Greek temple, not only in its exterior architecture, but also in its inner lay out. An entrant to the building passes through a succession of courts, each grander than the last. Admission to each court is more closely controlled, until finally one is ushered into the soaring court room where the justices emerge from behind the veil. In ancient and less judicially ambitious times, this architectural experience would have marked a symbolic assent into the presence of the gods, where the priests emerged from behind the veil that shrouded the Ark of the Covenant or the statue of Jupiter Optimus Maximus.
Apparently, we Americans learn this reverence (idolatry?) for the law early. A few weeks ago, I took my four-year-old son with me to the law library to pick up some books. As we walked past shelf upon shelf of the federal reports, my son asked me what those big books were. I pulled down a volume to show him, thinking that I would explain to him what a case and an opinion are. No need. He took one look at the double columned agate type on foolscap paper, and said, “Oh. It’s the scriptures.” I looked down and realized that the reporters do look suspiciously like the family Bible. It would seem that even in our book binding, the law apes the sacred.
August 24, 2006 at 2:27 pm
Posted in: Architecture, Religion
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Terrorism and Security Overreactions
posted by Daniel Solove
Bruce Schneier has a thoughtful and provocative post about how our overreactions to terrorism are exactly what the terrorists want:
The point of terrorism is to cause terror, sometimes to further a political goal and sometimes out of sheer hatred. The people terrorists kill are not the targets; they are collateral damage. And blowing up planes, trains, markets or buses is not the goal; those are just tactics. The real targets of terrorism are the rest of us: the billions of us who are not killed but are terrorized because of the killing. The real point of terrorism is not the act itself, but our reaction to the act.
And we’re doing exactly what the terrorists want. . . .
Regardless of the threat, from the would-be bombers’ perspective, the explosives and planes were merely tactics. Their goal was to cause terror, and in that they’ve succeeded.
Imagine for a moment what would have happened if they had blown up 10 planes. There would be canceled flights, chaos at airports, bans on carry-on luggage, world leaders talking tough new security measures, political posturing and all sorts of false alarms as jittery people panicked. To a lesser degree, that’s basically what’s happening right now.
Our politicians help the terrorists every time they use fear as a campaign tactic. The press helps every time it writes scare stories about the plot and the threat. And if we’re terrified, and we share that fear, we help. All of these actions intensify and repeat the terrorists’ actions, and increase the effects of their terror. . . .
The surest defense against terrorism is to refuse to be terrorized. Our job is to recognize that terrorism is just one of the risks we face, and not a particularly common one at that. And our job is to fight those politicians who use fear as an excuse to take away our liberties and promote security theater that wastes money and doesn’t make us any safer.
I very much agree. As I’ve argued before, when looking at the big picture, terrorism actually accounts for a very small risk of death or injury. More people die each year of nutritional deficiences than terrorism. The number injured and killed in car accidents each year is over 10 times greater than the toll in 9/11. Likewise for the number who die of the flu each year. Terrorism is certainly a risk, and we should certainly try to prevent it, but we should inflate the risk out of proportion. I’ve likened it to the shark bite phenomenon — when very rare events like shark bites occur, they grab the headlines, and people have a dramatically inflated perception of the risk.
Many security measures strike me as a silly waste of money and resources that could be used in ways that will save more lives, be more beneficial for society, and even provide more effective security. Security measures such as the NYC subway searches cost oodles of money and time and tie up personnel that could be used more productively elsewhere.
The difficult question is how, exactly, we can heed Schneier’s advice. Terrorism is so effective at grabbing the headlines, and it’s hard to convince those in a panic to calm down. And for politicians, it is difficult not to trot out whatever security measures that can be conceived of, regardless of their financial costs, sacrificies in liberties, and even effectiveness so long as they appear to be doing something. I wish I could figure out a structural answer to the problem, but thus far, I have not had much luck.
August 24, 2006 at 2:24 pm
Posted in: Privacy (National Security)
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Form of Internet Access Task Force: FTC Group to Examine Net Neutrality
posted by Deven Desai
According to ComputerWorld the FTC has created an Internet Access Task Force to examine whether broadband providers are behaving anti-competitively. Chairwoman Deborah Platt Majoras has framed the issue this way:
I have to say, thus far, proponents of Net neutrality regulation have not come to us to explain where the market is failing or what anticompetitive conduct we should challenge.
First, the quote seems like an invitation for those who support net neutrality to approach the FTC with their arguments. Second, it seems that the question might be put differently so that it asks what anti-competitive behavior we face without net neutrality legislation. The problem may be that proving the undesired behavior now is not possible because it has yet to occur. (Those who have examples speak up and let the FTC know). Even for those who see the NN problem as huge (here’s a link Larry Lessig and Robert W. McChesney’s piece on the topic), the arguments seem quite general and assert that not maintaining net neutrality would lead to X, Y, or Z result but don’t provide the evidence that Majoras appears to want.
August 24, 2006 at 1:54 pm
Posted in: Technology
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FDA Lets Morning After Pill Go OTC, Partially
posted by Dan Filler
After a few years of paralysis, driven by the political views of its conservative base, the FDA finally followed the experts and authorized over the counter sale of a morning after contraceptive pill. It limited sales to those 18 and over. I can’t imagine this was a purely bureaucratic decision. I assume this means that the Republicans now feel they’ve earned enough cred with the Right that they can stray a bit and try to win a few independents. That, or they’re desperate to keep control of some shaky moderate districts.
But for an administration that seems more intent on obscuring science than utilizing it, this is one small nugget of good news.
August 24, 2006 at 11:05 am
Posted in: Politics
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Pi v. Delta
posted by Dave Hoffman
In law student notes, plaintiffs are commonly denoted by π, and defendants by Δ. Even as I slavishly replicated this tradition as a student, I never understood it. Why are plaintiffs associated with “infinite . . . expansion . . . an irrational . . . indeed, a transcendental . . . expression“? And defendants a symbol variously matched with a proofreading symbol for deletion, the difference operator, and baryons?
Paging Nate Oman: a neat history of law problem to answer!
Update: An actual case suggests the practice is old. Pi v. Delta, 175 Conn. 527, 534, 400 A.2d 709 (1978) was a strange habeas proceeding for custody of a child. The case name is, alas, a fiction:
Upon the suggestion of the parties and in accordance with the spirit and intent of the order of the Superior Court granting the plaintiff’s motion to substitute fictitious names, it is ordered that the names of the parties involved in this appeal shall not be disclosed and that the records and briefs shall not be distributed to the various libraries of the state by the Reporter of Judicial Decisions. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of this court.
August 24, 2006 at 10:28 am
Posted in: Uncategorized
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Podiatrists For The Hand
posted by Dan Filler
A brief email interchange with one of our readers – my mom – led me to a burning question. Why isn’t there a medical specialty for the hand? Feet have their own docs – podiatrists. And hands seem to get almost as much hard use as the ol’ dogs. What goes wrong with the hand, you say? There’s arthritis, carpal tunnel (which is certainly within the metro area, if not in the hand per se), and a host of minor catastophes when fingers show up where they oughtn’t be. Perhaps there are good medical or market reasons for this gaping hole in the medical service field. But if not, perhaps now is time for President Bush to issue a national call. Forget engineers. Forget chemists. Forget ethnomusicologists. (Oops, I think we already have.) Podiatrists for the hand, I say!
Which reminds me. If you’re going to be in NYC this weekend, let me commend to you an amazingly bizarre and fun pair of one-acts, Americana Absurdum, playing at the Lucille Lortel Theater as part of the NY Fringe Festival. The plays, written by Brian Parks, feature an odd character who sells “foot powder for the head.” Perhaps he’s on to something there.
August 24, 2006 at 9:47 am
Posted in: Culture
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The Pleasure Of Transgression: Foie Gras And Other Crimes
posted by Dan Filler
Two things people seem to like: duck liver and lawbreaking. Yesterday, in Chicago, diners and restauranteurs revelled in the transgressive pleasure of eating foie gras. They ate it on Connie’s pizza (and let me confess a profound soft spot for Connie’s, where my dad used to take me before White Sox games); they enjoyed it at Harry Caray’s; and they even chowed down at BJ’s Market & Bakery, a soul food joint on Stony Island (on the South Side, where I grew up.) But Chicago recently adopted an ordinance banning the sale of this fatty food product on the grounds that the ducks and geese that provide the delicacy are abused. The restaurants serving foie gras yesterday were breaking the law.
Both the Trib and the NY Times featured the story of the outlaws who ate the evil liver. (Curiously, these two stories covered remarkably similar ground. I’m thinking that either these reporters are copycats or someone put out a press release directing eager reporters to the same dining establishments.) It’s clear that restaurant owners and customers were downright happy to break the law. But wait a minute. This is the law here! That incredible institution that must be respected, lest the entire society be put at risk. Or not.
Law-breaking is a powerful source of pleasure for many people. We elect representatives to set speed limits, and routinely violate them. Those same legislators create open liquor ordinances which we flout at outdoor concerts, parades, and other festive occassions. They ban gambling, and we ignore them. Even Justice Rehnquist got into law breaking; his chambers sponsored the NCAA pool at the courthouse and he even he hosted an election night pool involving the ’92 Bush-Clinton race.
Crime isn’t the only transgressive pleasure. Take the briefest detour down the path of the Internet Porn Machine – or save yourself the effort, and read your spam folder – and you’ll soon discover a smorgasbord of socially-proscribed delights. Smoking cigarettes has become much cooler now that it’s prohibited everywhere. And let’s face it. Eating super-fatty meat products like foie gras has become a social violation in many quarters. But the truth is, people love actual lawbreaking. Sure, if nothing else is on the tube, we’ll watch the CSI team fight crime. But true TV pleasure comes when we root for Tony Soprano, cheer for the Hendrickson family on Big Love, or laugh with the 420-ready housewife on Showtime’s Weeds.
Many criminal laws are designed to protect society from serious harm. Others are less essential, and reflect the preferences of particular powerful groups. And in many respects, the best way to show opposition to the ruling majority – to take a public stand against the regulators and with our nation’s wild past – is to break a few laws. Or perhaps less dramatically, lawbreaking is one small way to assert one’s individuality against the rigidity of state regulation.
Over the years, I’ve met my share of self-described rule-followers. But scratch the surface and you’ll usually find these people have identified at least one offense that they deem unworthy of respect. Or simply well-suited to producing the pleasure of transgression.
August 24, 2006 at 12:39 am
Posted in: Criminal Law, Culture, Current Events
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Privacy on the Road
posted by Kaimipono D. Wenger
From the New York Times, a nice little piece about privacy (or lack thereof) on the road:
Using a public computer can also mean courting trouble, because data viewed while surfing the Web, printing a document or opening an e-mail attachment is generally stored on the computer — meaning it could be accessible to the next person who sits down. (To remove traces of your work, delete any documents you have viewed, clear the browser cache and the history file and empty the trash before you walk away.)
“You also run the risk that somebody has loaded a program on there that can capture your log-ins and passwords,” Mr. Louderback said, recalling an incident a few years ago when a Queens resident was caught installing this type of “key logger” software on computers at several Kinko’s locations in New York.
As the article points out, it’s a scary, scary world out there. Public computers can be searched for passwords or equipped with malicious keyloggers. Wiireless hot spots can be raided with packet sniffers. There are software solutions for getting around these, but the easiest solution is also the safest:
Absolutely never check your bank account on a public computer. And be careful about checking it on a wireless hotspot.
One thing the article lacked was a real discussion of how prevalent this kind of identity theft is. What are the statistics on this kind of thing, Dan? How much identity theft (or for that matter, data theft) comes out of these kinds of interactions – do we have any ideas?
August 22, 2006 at 11:41 pm
Posted in: Privacy (ID Theft)
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Post-Nuclear Holocaust Movies and the Academic Job Market
posted by Nate Oman
Gordon Smith has a post about interview questions for prospective law professors. Having recently run the gauntlet of the meat market, this is a topic where memories are still fresh in my mind. I remember one question in particular. It was during an on-campus call back interview. I gave my job talk — a piece on the relationship between autonomy theories of contract and corporations — and then waited for the faculty questioning. By this time I had given the paper about a half dozen times, and I thought that I pretty well knew what points were going to get raised. Not so. A faculty member raised his hand and asked the following question: “Can you please explain to me how autonomy theories of contract would deal with the remedy provided for breach in Mad Max Beyond Thunderdome where the rule is ‘break a deal, face the wheel’?”
Mad Max Beyond Thunderdome, of course, is the classic Mel Gibson-Tina Turner movie about life in Australia after a nuclear holocaust has destroyed civilization as we know it. Those who breach their contracts in the post-apoclyptic world must spin a wheel — rather like the Wheel of Fortune — on which are written various punishments. Whatever punishment the wheel lands on is meted out to the breaching party.
I replied by pointing out that a commitment to an autonomy theory of contract requires a rather more expensive enforcement mechanism, because it is necessary for adjudicators to invest resources in discerning the actual intent of the parties in so far as they are able, rather than relying on cheaper, more formalistic modes of interpretation. Presumably in the post-apoclyptic world, the resources that society has available for the resolution of contractual disputes are reduced, and therefore they adopt remedies rules that require less fact finding. Spinning the wheel, for example, doesn’t require that the court invest any additional resources in calculating the value of the disappointed promisee’s expectation measure. In a world, however, that has not been devastated by nuclear war, society has the resources to devote to a more nuanced approach to contractual disputes, although if we take efficiency as the sole goal of contract law, then a process of largely randomized remedies like the wheel may be superior.
I thought it was a pretty good answer. On the other hand, I didn’t get an offer from that school…
August 22, 2006 at 2:35 pm
Posted in: Contract Law & Beyond, Economic Analysis of Law, Law School (Hiring & Laterals)
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When Hackers Get Hacked
posted by Deven Desai
Just a quick note of irony. CNET reports that legendary hacker Kevin Mitnick’s site was hacked over the weekend apparently by some one in Pakistan. According to Zone-H the attacks seem aimed at Mitnick and not the other sites hosted on the host company’s servers. The link to Zone H takes you to a page with a picture of the hack and site graffiti if you want to see it.
August 22, 2006 at 2:28 pm
Posted in: Culture
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Enhancing Academic Reputation in the US News Rankings
posted by Daniel Solove
Brian Leiter has an interesting post about advice for law school promotional brochures, otherwise known as “law porn.” I’ve always wondered whether such brochures are effective at enhancing a law school’s academic reputation in US News. I doubt they are. US News assesses academic reputation as follows:
Peer Assessment Score (.25)
In the fall of 2005, law school deans, deans of academic affairs, the chair of faculty appointments, and the most recently tenured faculty members were asked to rate programs on a scale from “marginal” (1) to “outstanding” (5). Those individuals who did not know enough about a school to evaluate it fairly were asked to mark “don’t know.” A school’s score is the average of all the respondents who rated it. Responses of “don’t know” counted neither for nor against a school. About 67 percent of those surveyed responded.
At any given school, only four people are doing the rankings each year — the dean, dean of academic affairs, appointments chair, and most recently tenured faculty member. That’s not a lot of people; nor is it representative of a law school faculty. To improve reputation over time, the most logical strategy would be to target the raters most likely to be repeat players — the deans. The deans account for 50% of the ratings, so why not just target the deans in mailings? These are the people who have the most impact on the ranking of law schools.
I doubt a glossy brochure will have any palpable effect on changing most deans’ assessments of various law schools. In fact, I wonder to what extent even adding quality law professors to the faculty will alter this rating. Every year, there’s a big shuffle with professors lateraling to different schools, but how many deans spend much time pondering over what schools had net gains or losses in faculty quality? Brian Leiter’s rankings ask professors to consider this, but not US News.
So here’s my idea for the most efficient way for a school to enhance its academic reputation: Reach out to the deans! Invite them to speak at workshops and conferences. Roll out the red carpet for them when they visit your school. Have your law school’s deans and professors schmooze with other law school deans at various events.
The US News academic reputation scores range from 1 to 5, with 5 being the highest. Basically, the goal is to convice the deans that your school should be ranked a notch higher on the form. My sense is that a glossy brochure will find its way quickly into the trash bin, and these brochures are costly to produce and send out. Perhaps the money is best spent on reaching out to the deans and trying to impress them. What dean wouldn’t rank your school a 4 rather than a 3 after being treated to lavish visit to your school, staying at a luxurious hotel, participating in an interesting conference, and having a fancy dinner accompanied with fine wine?
August 22, 2006 at 12:44 pm
Posted in: Law School (Rankings)
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Introducing Drexel University College of Law: Drivers Wanted
posted by Dan Filler
I’ve been busy recently, helping construct a law school at Drexel University. So it seems appropriate to introduce the institution that stole my time (but never my affections) from Concurring Opinions. I hope to blog more about the process of builiding a law school in upcoming weeks.
What is Drexel University College of Law? It’s a new law school affiliated with Drexel University – a large research university located in Philadelphia, right next door to Penn. (Drexel students and faculty benefit tremendously from Penn’s massive investment in the University City neighborhood.) Drexel University’s recent history has been pretty remarkable. It has grown from being a solid engineering school to a major education destination in the region. The University increased its endowment from $90 million to $550 million in ten years, added a medical school, and doubled the undergraduate student body. A little over a year ago, the University announced a plan to open a law school. In the past hectic year, the College of Law was born – and it’s looking pretty good. We (notice how I move to first person plural now?) have a smart, productive and energetic faculty that is as impressive in person as it is on paper. (Puffery, anyone?) At the same time, our admissions team produced a quality entering class – despite the fact that Drexel cannot even seek ABA accreditation until next year.
Consistent with the University’s famous co-op program (“The Ultimate Internship”, according to Drexel’s registered trademark), the law school will have a experiential focus – with co-op placements available for all students. And playing on the U’s strengths, it will initially offer concentrations in health law, IP and entrepreneurial business. (We’ll leave the value of such concentrations for another day’s discussion.) What Drexel Law doesn’t have, for the next couple of months at least, is a building. But really, who needs a building?
My initial reviews of the experience of working at Drexel are pretty wonderful. I’m having a lot of fun, and I really look forward to work each day. (Farfegnugen, anyone?) Sure, little problems surface regularly, the buck stops with each of us, and each day’s agenda is subject to change. But this is entrepreneurship, on someone else’s dime. Anything is possible.
Oh. And one more thing: we’ll be doing some aggressive hiring this fall. People often talk about the amazing law faculty one could build if only one could start from scratch in today’s market. Funnily enough, that’s what we’re trying to do here. Our job annoucement is after the jump.
August 22, 2006 at 11:16 am
Posted in: Law School
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The Ten Greatest Privacy Disasters
posted by Daniel Solove
Wired News lists what it considers to be the 10 greatest privacy disasters:
10. ChoicePoint data spill
9. VA laptop theft
8. CardSystems hacked
7. Discovery of data on used hard drives for sale
6. Philip Agee’s revenge
5. Amy Boyer’s murder
4. Testing CAPPS II
3. COINTELPRO
2. AT&T lets the NSA listen to all phone calls
1. The creation of the Social Security Number
See the Wired article for its explanations. It’s a good list, but there are a few problems. Although we still don’t know all the details of the NSA surveillance program, it’s not worse than COINTELPRO, which involved massive surveillance of a wide range of groups, the wiretapping of Martin Luther King, Jr., attempts to blackmail King, and more. The Social Security Number has indeed led a ton of problems, but the fault doesn’t lie with its creation. Rather, the problem is mostly the expanding use of the number and the failure of the government to reign in government agencies and business from using it. CAPPS II, while flawed in its conception, should not be so high on the list.
Some notable omissions: Where’s Total Information Awareness? What about Olmstead v. United States, 277 U.S. 438 (1928), where the Supreme Court held that the Fourth Amendment didn’t regulate wiretapping? Olmstead led to nearly 40 years of extensive abuses of wiretapping before it was overruled. There are countless other Supreme Court 4th Amendment cases that could arguably be listed, but I’d definitely include Miller v. United States, 425 U.S. 435 (1976), which created the third party doctrine which holds that the Fourth Amendment does not apply to personal records possessed by third parties. Another possible inclusion: The birth of J. Edgar Hoover.
Hat Tip: Bruce Schneier
August 22, 2006 at 9:58 am
Posted in: Privacy, Privacy (Electronic Surveillance), Privacy (ID Theft), Privacy (Law Enforcement)
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Prawfs’ Sartorial Obsession
posted by Dave Hoffman
Prawfsblawg has a new post up on academic dress. The comments are, as always, interesting. I hope it isn’t too snarky to observe that isn’t Prawfs’ first discussion of sartorial topics. See also here, here, here, here, here , and (google reports) here too.
I wonder why the Prawfs gang hasn’t tried to get Brooks Brothers to sponsor the site?
August 21, 2006 at 5:12 pm
Posted in: Law School (Teaching)
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Flip That Argument
posted by Dave Hoffman
Larry Solum’s soon-to-be classic deconstruction of the “It Takes a Theory To Beat a Theory” maxim is a must read. Generally, the Lexicon is an invaluable resource for first-years (and others) seeking a foothold into enormous, barnacled, debates that you will often hear boiled down to a few pithy words.
Indeterminacy - and its pith-summary, “all arguments are equally good,” is a good example. The power move in the Socratic classroom is to ask a student who has committed to a particular argument for a few minutes (or more) to “flip it,” i.e., assume the opposite position based on the same facts. This facility is obviously healthy for a practicing lawyer, but it sure is irritating elsewhere. People might confuse intellectually dexterity with hypocrisy. Or, worse, incoherence.
Glen Greenwald, commenting on a Washington Post editorial that attacked the district court NSA decision, might be suggesting that the “flip it” mentality is bad for democracy:
This Editorial, with all of its condescension and self-important open-mindedness to administration law-breaking, illustrates a common character flaw among our political and journalistic elites. In their world, the way you should how show smart and thoughtful and serious you are is to see two or more sides to everything, to treat every argument (especially from the Government) seriously and respectfully and be open to it because your great intellect and non-partisan fair-mindedness allows you to avoid the shrill, definitive conclusions in which the emotional and partisan masses traffic.. . . But not everything has two or more sides. Some issues are complicated, but some are not. And some dangers are profound and grave enough that putting a stop to them is infinitely more important than engaging in fun, intellectual games designed to show how serious and studious and intellectually dexterous one is. Sometimes, the “destination” matters more than the soul-searching, intellectually impressive “journey.” Yes, sure, it is true that the judicial opinion issued yesterday is very weak, in places borderline incoherent, in its reasoning with regard to some issues. Anyone can see that. Most everyone who commented on it, including me, pointed that out. But that does not undermine in any way the fact that this President has been systematically breaking the law for no reason other than he thinks that he can, and that judge’s rejection of that belief is quite eloquent and powerful. Most importantly of all, it is indisputably correct.
I think that Greenwald’s position marks out a clear fault-line between the political and the legal blogospheres. The legal blogosphere, more or less, reflects the ideology of law schools. That ideology assumes that legal issues almost always approach equipoise when the relevant policy and legal considerations are considered. In one sense, there is no greater sin in the Socratic legal world than righteousness.
Just a reminder to new students that when your professors start to flip you this week, they’re actually breaking down deeply held moral intuitions that you might have wanted to hold on to. Good luck!
August 21, 2006 at 10:52 am
Posted in: Law School
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