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Short Course on Some Origins of Inequality

Recently my law school's clinic "filed a class action lawsuit in federal court on behalf of all parents of children attending Newark Public Schools who are being denied their rights under the No Child Left Behind Act." BlackProf regular Shavar Jeffries is lead counsel for the plaintiffs, who charge that the "Newark Public Schools district has systematically failed to meet even the Act’s minimum notification requirements."

In honor of that effort, I'm highlighting a fascinating article from the NYT Magazine by Paul Tough on the challenges facing the No Child Left Behind (NCLB) effort. The article notes that NCLB aims to erase a persistent achievement gap between African American and white, and lower and middle/upper class, students (by 2014). It summarizes two bodies of literature on the subject:

The first is about causes; the second is about cures. The first has been taking place in academia, among economists and anthropologists and sociologists who are trying to figure out exactly where the gap comes from, why it exists and why it persists. The second is happening among and around a loose coalition of schools, all of them quite new, all established with the goal of wiping out the achievement gap altogether.

The "causes" literature is fascinating. I've heard about studies like Lareau's Unequal Childhoods for some time, but the quantifications provided in the article are compelling:

By age 3, the average child of a professional heard about 500,000 encouragements and 80,000 discouragements. For the welfare children, the situation was reversed: they heard, on average, about 75,000 encouragements and 200,000 discouragements. Hart and Risley found that as the number of words a child heard increased, the complexity of that language increased as well. As conversation moved beyond simple instructions, it blossomed into discussions of the past and future, of feelings, of abstractions, of the way one thing causes another — all of which stimulated intellectual development.

I've heard similar explanations of a new gender gap in academics; social critics claim that boys too often succumb to a "dude culture that demeans academic achievement" and discourages expression of ideas.

So what are the solutions? They involve massive effort, and will test whether NCLB is mere opportunistic "symbolic politics" or a real effort to address inequality.

Tough (the NYT reporter) draws three lessons from successful charter schools:

The schools that are achieving the most impressive results with poor and minority students tend to follow three practices. First, they require many more hours of class time than a typical public school. . . . .Second, they treat classroom instruction and lesson planning as much as a science as an art. Explicit goals are set for each year, month and day of each class, and principals have considerable authority to redirect and even remove teachers who aren’t meeting those goals. . . . . Third, they make a conscious effort to guide the behavior, and even the values, of their students by teaching what they call character. Using slogans, motivational posters, incentives, encouragements and punishments, the schools direct students in everything from the principles of teamwork and the importance of an optimistic outlook to the nuts and bolts of how to sit in class, where to direct their eyes when a teacher is talking and even how to nod appropriately.

These all sound like reasonable steps to me, but very difficult to implement. A key question then arises: is the charter school form the only one that can implement them? Or can they be integrated into a public school framework? Jeffries raises doubts about the latter possibility. My own sense is that, whatever the institutional home of successful interventions, I hope that society more properly rewards and recognizes the committed teachers who are making a difference here. One of my cousins taught in a religiously-affiliated school in Watts, where part of her sacrifice entailed not having health insurance--and after a car accident she was stuck in an overcrowded ER in County Hospital for 14 hours before receiving care. Perhaps the Bush Administration should signal a commitment to charter schools by guaranteeing health care for all teachers in them.

Photo Credit: KFUPE. I believe they are standing in front of a Potemkin schoolhouse in front of the Department of Education.

Posted by Frank_Pasquale at 03:13 PM | Comments (8) | TrackBack

The Future of SSRN

Over at the VC, Orin Kerr has an interesting post about the Social Science Research Network (SSRN), where professors and others can post their scholarly articles online and make them available for people around the world to download. Orin quotes from James Grimmelmann, who has declared he will no longer be using SSRN because it has made a "series of decisions that cut against open access." Orin writes:

I largely share James's concerns. I'm not quite ready to pull the plug and stop posting to SSRN, but I have certainly thought about it. I'm particularly eager to see if SSRN will end its mandatory watermarking practice, which was introduced as an "experiment" and I hope is a short-lived one.

The watermarking practice Orin speaks about is SSRN's decision to place its URL prominantly on each and every page of articles in its repository.

I agree with Orin. SSRN has long served as a very useful repository to make papers widely available, but lately, it has taken steps that have struck me as annoying at best and restrictive at worst.

The SSRN URL that is now branded onto every page of my articles is quite obnoxious. I like to post final versions of my papers on SSRN, and my preference is to have an exact copy of the final version, not a doctored-up version by SSRN.

SSRN has also taken steps to become more restrictive in allowing people to download, primarily to preserve the integrity of its download count numbers. These numbers are fun and interesting, but increasingly people are using them as some kind of indication of a paper's status or quality or impact. This strikes me as rather silly. Download counts indicate that a paper was linked to by some prominent blogs, but it doesn't indicate paper quality or scholarly value. It indicates the popularity of a paper with certain Internet communities. This can be interesting to know, but beyond being interesting, I don't think that the download count says much about a paper's quality. It's like using TV ratings as an indication of quality -- Jerry Springer got good TV ratings, but that doesn't mean his show is good scholarship. I like the download counts, but they cease to become fun when people take them too seriously and when they become the primary function of SSRN, detracting from SSRN's original purpose.

As I see it, SSRN's primary purpose is to make scholarship readily available online. SSRN should be striving to further this goal, by improving the ease of access to the papers, by getting more people to post final versions of their work, by having better options for designating the status of papers (perhaps something that indicates when a new draft of a paper is posted or when a final draft is posted), by having the text of papers searchable by Google, etc. Instead, SSRN seems to be putting its energy into the download counts. I hope SSRN doesn't lose sight of primary purpose in its quest for fun secondary vanity functions like counting downloads.

I've been posting papers at SSRN since I began my career, and I really like SSRN, so it's hard to sever the relationship. Thus, like Orin, I'm sticking with SSRN, but I'm increasingly growing wary of the direction SSRN is heading in.

Posted by Daniel Solove at 10:09 AM | Comments (9) | TrackBack

Blogal Governance and Ideology

Ah, the simple pleasures of a navel-gazing post.

There have been some rumblings of late about the relationship between the corporate form of law blogs and their informational ideology. Two examples:

• Bill Sjostrom highlights the Caron Blawg Network's insistence on non-competes, and adds that the policy "is consistent with the reception I got from the “blog empire” when Geoff and I launched this blog (at the time I was a contributing editor on Business Law Prof Blog and Contracts Prof Blog)."
• James Grimmelmann criticizes SSRN for its deviations from open access norms, concluding that "[t]here’s a common theme here. In every case, SSRN put its own institutional self-interest ahead of the cause of open access."

Grimmelmann adds later on in the post:

"SSRN is a for-profit corporation. It’s not yet (I think) a money-making corporation, but its goal is to make money for its owners. It has chosen to do so by providing useful open-access services to scholars, but when push comes to shove, the bottom line comes before the open access part. We don’t need to blame SSRN or find fault with it. It’s just doing what comes naturally—making the decision that it’s supplied sufficient open access to fit into a market niche and declaring that good enough. This point, by the way, applies to the Law Professor Blogs network. Almost uniquely among legal blogs, they are run by a corporation. Also almost uniquely among legal blogs, they don’t provide full-text RSS feeds. This is not a coincidence. The choice of organizational form leads to an obsession with revenue (or, less charitably, vice-versa), which leads to an emphasis on advertising revenue through ads on the web pages, which leads to a fear that full-text feeds would substitute for the revenue-producing web pages, which leads to the deliberate crippling of the feeds. Thus are the traditions of free scholarly exchange betrayed for thirty pieces of silver per click-through."

The idea that corporate form determines an entity's stance toward intellectual property seems pretty obvious, although I confess that I hadn't thought of its application to the blawg context until quite recently. Indeed, after reading Eric Goldman's Co-Blogging Law, I've been pushing for our blog to become incorporated, or at least significantly more sophisticated about its governance. (That lack of sophistication, by the way, is part of the reason that we've been ad free to date.) It is, I suppose, an empirically testable problem. Do incorporated blogs demonstrate different stances toward, say, linking to competitors (instead of quoting them in bulk), restraining co-bloggers, kowtowing to advertisers, etc.? I'd imagine so. But, no doubt, they also are probably more respectful of copyright and reputational claims.

To the extent that the maturation of blogging is now well begun, I wonder if it is fair to say that the current norms that mark the blawgosphere are also in flux. Ann Althouse complains mightly here of the unfairness of not being linked to by Andrew Sullivan, but this kind of thinking is so 2005. In today's blawg-eat-blawg world, sending your customers to a competitor is just grossly negligent.

Posted by hoffman at 09:35 AM | Comments (3) | TrackBack

Punishment At The New School

Today I'm headed to the New School for Social Research, in NYC, for a conference entitled Punishment: The U.S. Record. The lineup is excellent, and includes folks like Michael Tonry, Jonathan Simon, Bernard Harcourt, Todd Clear, and David Garland, among others.

Attending this conference is one of the perks of my move to Drexel. Living in Alabama, the decision to attend a conference in New York - even for two days - was freighted with anxieties over early commitments (to snare lower airfares) and dealing with travel hassles. My office at Drexel is a ten minute walk from Thirtieth Street Station. Portal to Portal, the trip from Drexel to The New School costs me about an hour and fifty minutes - roughly the same as it took for me to get in my car, drive to the Birmingham airport, and board the plane. Advance planning consists of a five-minute-in-advance purchase. And I won't have to fold myself into one of those crummy regional jets. This way, I can focus on broader issues of punishment, rather than just my own.

Posted by Dan_Filler at 12:06 AM | Comments (2) | TrackBack

Law Student Resume Advice

Over at the Conspiracy, Eugene has sparked a conversation about whether a law student ought to include proficiency in Westlaw, Lexis, Word, etc. on her resume. He argues that it's a net negative because most employers will assume these skills, and their very inclusion draws attention away from more signficant credentials.

I have to admit, this is one recurring aspect of law student resumes that has long troubled me. In my view, inclusion of these skills does more than obscure other skills. Because employers assume resume writer competence, their incusion suggests that the candidate doesn't have anything more to recommend herself. As a couple of Volokh commenters note, however, not all recipients are the same. In small firms, particularly those that have not done a great deal of hiring recently, these skills may stand out. If an applicant knew she was applying to the Smith Law Firm, which consists of three sixty year old guys, she might be well-advised to note her comfort with Westlaw.

At Alabama, I was further vexed by the Greek Alphabet Soup that populates so many student resumes. Some of these were the names of undergrad social frats and sororities. When I first arrived in the South I thought their inclusion ridiculous. I came to understand that many lawyers do look at this information to assess candidates. It's not a heuristic popular at Cravath or MoFo, but it may well be a sorting factor for a 20 attorney firm in Mobile. Many students include other Greek-titled societies and clubs as well, despite the fact that they would be incomprehensible to 90% of likely resume readers.

Here are my two quick pieces of advice. First, every law student (and lawyer) should revisit each line of her resume to see if it adds value. Much like poetry, a resume requires precise language. If your membership in a high school drama club is unlikely to draw a reader's attention, and improve your odds of getting a job, scrap it. (Caveat: sometimes a quirky entry can generate good interview conversation...but people should be very careful about including material for this purpsose.) Second, resumes require tailoring. The resume you send to small firms may emphasize different skills and experiences than one to a behemoth. And a resume going to an Alabama firm most probably needs to be seriously rewritten if it's going to be sent to New York - or even Louisville.

A good resume can make all the difference in the world. You'd think that career planning offices, or resume self-help books, would have helped tune up all but the most hopeless resume. But it's just not so. The excellent resume writer still maintains a significant edge. Somehow, in this utilitarian age, efficient resume writing remains quite mysterious.

Posted by Dan_Filler at 12:00 AM | Comments (1) | TrackBack

NRO and the First Amendment

Andy McCarthy has an interesting comment on the First Amendment on the National Review's blog. He argues in part:

[Some argue that] “The remedy for bad speech is more speech.” This, effectively, is the Holmesian “marketplace of ideas” trope that is just an excuse for not thinking. If someone’s bad speech is a fatwa that sets a WMD attack in motion, my ability to speak out against the fatwa will be cold comfort to the dead. The First Amendment does not countenance commands to murder, and Speaker Gingrich is entirely correct to challenge us to think through these principles.

I've said many times that I'm no con law maven. But I don't get this point. As McCarthy admits, Brandenberg would seem to allow regulation of "commands to murder": they are "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Moreover, McCarthy seems to believe that an "original understanding of the First Amendment" would lead to a different understanding of the text. What can he mean by that? Reversing the incorporation of the Bill of Rights?

Posted by hoffman at 07:41 PM | Comments (7) | TrackBack

Tim Noah: "Happy Birthday, Iran Contra!"

Timothy Noah has a great piece in slate.com entitled "Happy Birthday, Iran Contra!"

In it, he questions why the scandal's 20th anniversary has seen virtually no media coverage. Noah's take: (1) The various factual and legal issues were "mind-numbingly complex," and hence not conducive to media sound-bites and (2) Noah makes the interesting argument that: "To the extent one can tease out a story line, the Iran-Contra saga is at odds with what we "know" about some of the characters involved, a great many of whom hold positions of power in the current Bush administration."

He also offers some lessons that we can glean from the scandal including:
"Even when Congress forbids specified activities touching on national security, presidents will be tempted to ignore the law, and when they do, they will tend not to suffer many consequences."

On that last point, keep in mind that the NSA surveillance program is still ongoing, it is unclear what if anything the new (or lame-duck) Congress will do about it, and the Bush Administration only just approved security clearances for a limited DOJ investigation of the program (one that will not consider the program's legality), after effectively shutting down a more expansive DOJ ethics investigation last year by denying security clearances to investigators.

Keep in mind also that a grand jury investigation has been convened as a possible precursor to prosecutions for those who leaked and/or published information revealing the existence of the once-secret NSA program. I hope to blog more at some point about this last subject (criminal prosecution of classified information leaks).

Posted by Heidi_Kitrosser at 05:07 PM | Comments (6) | TrackBack

The Most Wonderful Time of the Year

All right, ladies and gentlemen, start your engines -- it's time for the annual debate. What are your favorite Christmas Holiday Season songs? Here's my current top-ten list, to start things off.

1. Nat King Cole, The Christmas Song. The all-time classic. It's old, comfortable, well-worn, and a great song. You can't listen to the first line without automatically saying, "yep, it's Christmas time." (Alternate: Bing Crosby, Winter Wonderland.)

2. Gene Autry, Rudoplh the Red-Nosed Reindeer. A classic "fun" Christmas song. Fun to sing with the kids, yet not obnoxious or overbearing. (Alternate: Frosty the Snowman).

3. John Lennon, Happy X-Mas. Because nothing says holiday spirit quite like some festive anti-war activism. (Alternate: David Bowie, Peace on Earth / Little Drummer Boy. Peacenik lyrics: Check. Rock singer: Check.)

4. Martina McBride, Silver Bells. Because this list is lacking in women; and because the fusion of country-pop with Christmas music is, well, a little catchy. (Alternate: Mariah Carey, All I Want for Christmas is You.)

5. Trans-Siberian Orchestra, Christmas Eve (Sarajevo). Christmas music never had more distortion or power chords; remarkably, the combination works, at least in the short term. Even headbangers like to celebrate the holidays. (Alternate: Metallica, Master of Puppets.)

6. Hallelujah Chorus, Mormon Tabernacle Choir. Christmas isn't Christmas (at least, around my house) without a little MoTab. (Alternate: O Holy Night, Mormon Tabernacle Choir.)

7. Alvin and the Chipmunks, Christmas, Don't Be Late. A little annoying, to be sure. Okay, a lot annoying. On the other hand, it's kinda catchy. And it's something I can sing along to -- if I only have to do it one month of the year. (Alternate: Alvin and the Chipmunks, All I Want for Christmas is my Two Front Teeth.)

8. Adam Sandler, The Chanukah Song. Because we're ecumenical like that. (Alternate: Um, hmm. Is there a good Kwanzaa song I should be aware of? Ramadan?)

9. Bing Crosby, I'll Be Home for Christmas. The ultimate sad, nostalgic Christmas song. (Alternate: Elvis, Blue Christmas.)

10. Silent Night. Either choir or solo versions can be beautiful. The Tabernacle Choir does a great choir version; Bing Crosby, Frank Sinatra, and Nat King Cole all have great recordings of it as well.

What's on your list?

Posted by Kaimipono at 12:57 PM | Comments (13) | TrackBack

When Will Skadden Finally Get Its Own Stadium?

I love that the Utah Jazz has sold their stadium naming rights to Energy Solutions, a nuclear waste storage company. The Times reports a series of great nicknames that savvy Salt Lake sportos have suggested for the facility. The Tox Box. The Glow Bowl. The JazzMat. And of course, my own personal favorite, Radium Stadium.

We have become so accustomed to commercialization of just about everything that this story, while humorous, is entirely plausible. And that's lucky, because it's true. I wonder if a stadium naming opportunity can be created for any legit company in America. How about Jack Daniels Stadium or the Marlboro Center? (If these names don't play in Utah, perhaps they'd work in a place like Chicago.) Perhaps Howard Dean should have ponied up some cash and taunted Jazz fans by renaming the place Democratic National Party Hall. (Would locals derisviely call it the Dean Dome? And if t-shirt makers emblazoned souveniers with the motto, could Carolinians sue?)

Which all leads nowhere, except to ponder whether law firms will ever get into the biz. Surely Skadden, Arps would benefit from having the firm's name surface regularly on NBA-TV and ESPN. I'm convinced there are some great nicknames a law-firm-titled stadium could generate, but for now I'm somewhat stumped. MoFoField just doesn't knock my socks off. Anyone have suggestions?

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

A Visit to New Orleans

This photo shows a tour bus on what appears to be a “Katrina Devastation Tour” in New Orleans’ Lower Ninth Ward. Virtually nothing has been reconstructed there, and a weekend visit evidenced lots of rebuilding to be done elsewhere in the city.

I’ve just gotten back from Nola, where I was celebrating a wedding of two friends. That was terrific, and the French Quarter is still going strong (I highly recommend Broussard’s for dinner and Palm Court for music.) But I had no idea what it meant for 80% of a city to flood, and for FEMA trailers to dominate the residential landscape over a year after the deluge.

What’s going on? I don’t have a deep grasp of the dynamics here, but one narrative kept repeating: the chicken & egg dynamic of residents not wanting to come back until businesses returned and businesses not wanting to re-open until residents returned. I stayed in a middle class enclave near the University of New Orleans, which apparently had cafes, fitness clubs, restaurants, and grocery stores before the storm—but all were still boarded up. The only food I passed was a mobile cart labeled “Pizza Milano.” So it’s no wonder many houses are abandoned, or fronted by the ubiquitous (and quite small) FEMA trailers.

In this way, Nola resembles many inner-cities that seem trapped in cycles of middle-class flight and declining amenities. I imagine there might be some good lessons for reconstruction from other cities that managed to revitalize.

Obviously government has a lot to do here, as a boatload of gallows humor reveals. Hartman & Squires's collection “There is No Such Thing as a Natural Disaster” suggests the depth of local government dysfunction and malign federal neglect. Apparently hundreds of doctors are likely to leave Louisiana by the end of the year, due to a lack of hospitals and general uncertainty about Nola’s economic future.

I also noted a number of charities active, including ACORN and Catholic Charities in the Lower Ninth Ward. But when all's said and done, the city has to get back on its feet economically. I think it’s important for people to have a sense of just how much would be lost if Nola fails to recover. I doubt I’ve ever been in a place with as much good live music, friendly people, and fantastic food. The architecture of the French Quarter is striking, and most of its streets free of the cookie-cutter corporate banality that makes so many other locales pale replicas of one another. (But for those of you who like that kind of stuff, there is a Hard Rock Café and an Urban Outfitters tucked away by the Mississippi River.)

The whole situation poses some of the same dilemmas that bothered me when I lived in some pretty marginal neighborhoods in Washington, DC. On one level, I wanted the Washington Post to cover the the social problems that plagued neighborhoods like Petworth and Shaw, in order to get the city government to respond. On the other hand, I also cringed when they did so, fearing that property values would take a hit and small businesses would get scared away. It seems to me that Nola has a similar problem--stories of just how dire the reconstruction situation are could drown out the more helpful (and equally true) positive message: that it's still an amazing place to live in and visit.

Anyway, I’ll try to think a bit more about what law can do for Nola during the week. I’ve got to read the series of posts on the topic at Jurisdynamics to get my bearings…

Posted by Frank_Pasquale at 08:56 PM | Comments (6) | TrackBack

Welcome to the Blogosphere: Legal History Blog

Professor Mary Dudziak (law, USC) has started a new blog, Legal History Blog. It will cover "news and scholarship in legal history." Welcome to the blogosphere!

Posted by Daniel Solove at 07:44 PM | Comments (0) | TrackBack

"The Little Bit of Michael Richards in Us All"

This post's title is a teaser that I heard on NPR this morning, referencing an upcoming story. While I missed the story itself, I was encouraged by the teaser line. Encouraged, because it suggests that the story was to take an approach similar to that which many other media stories have taken in discussing Michael Richards’ racist outburst. The approach being one which does not single Richards out as an evil racist in contrast to all of us egalitarian, non-racist folks. Rather, the approach sees Richards’ outburst as symptomatic of a much, much larger, ubiquitous undercurrent of racism in our society, one which lurks to some degree in all of us, threatening to bubble to the surface under pressure. For stories on Richards’ outburst that take this approach in whole or in part, see, e.g., Spencer Overton's excellent piece in blackprof.com; this op-ed in the Washington Post; and this op-ed in the Baltimore Sun.

This approach is an important one because it is grounded, I think, in a deeply important truth. Most of us understand intellectually that it’s wrong to judge people for the color of their skin, the language that they speak, their gender, their sexual orientation, their national origin, and countless other factors that have nothing to do with the “content of [our] character[s],” to paraphrase the great Martin Luther King., Jr. And we know this to be the case not simply because we have been told so, but because logically and from experience with diverse groups we realize that it simply makes no sense, and is deeply, painfully unfair, hurtful and destructive to judge one another by such factors. That said, we continue to live in a society that is fraught with racist, sexist and other stereotypes, stereotypes that pervade our culture and the barely conscious attitudes of even the most well-meaning among us. This is not a surprise: women have had the vote for less than a century, and state sanctioned racial segregation existed well into the 20th century. It takes a long, long, long time for a society and its people to purge itself of the social inequalities, divisions and attitudes bred by such longstanding discrimination. From this perspective, the view that we are all creatures of our society and that we all must harbor some degree of racism, sexism, homophobia, etc., is hardly a radical one. And I certainly do not exempt myself from this observation. I can think of many occasions in which I realized in retrospect that I had judged or treated someone differently because of their race or gender.

The first step in getting past this terrible social and cultural legacy is for each of us to recognize and admit, at least to ourselves, the racism, sexism and similar forms of stereotype and group-based hostility that lurk within us. Pointing to people like Richards as uniquely racist and evil not only seems incorrect, but seems to miss the point entirely. Rather, we should take events like the Richards outburst as an opportunity to admit the hatred and stereotyping that continues to exist within our society, and within all of us. Only then can we confront that which we harbor within us, but which most of us understand is very, very wrong. That the Richards incident seems to have sparked just such a national conversation is a sign, I think, that there is much about which to be hopeful as we continue to evolve as a society.

Posted by Heidi_Kitrosser at 05:45 PM | Comments (22) | TrackBack

Zoning Out Sexual Offenders

The New York Times reports, today, on efforts nationwide to prevent convicted sexual offenders - "pedophiles" or "sexual predators" in the parlance of panic - from living or working anywhere near children. This story follows on heels of a similar article, last week, in the Washington Post, which focused on Georgia's virtual banishment of these individuals. And this buzz isn't new; Talk Left was on it months ago, and has stayed with the story.

Those familiar with my papers about Megan's Law won't be surprised that I'm very dubious about the value of these laws. There is little evidence that they'll make anyone safer, and there are credible arguments that they actually create increased risk. I don't know if there's evidence either way as to whether they constitute sound social policy from a crime suppression point of view. Of course, these laws aren't really about reducing crime. Put in the kindest terms, they are about society expressing its anxiety and anger about sexual offenses. Put less kindly, they are about uncontrolled, and to some degree unjustified, fear of sexual crimes. And put most unkindly of all, they are simply about pandering politicians.

What I do find interesting is the fact that some major national media outlets have decided to take on these laws. True, both papers offer relatively progressive views of public policy. But it would be easy for a liberal paper to leave this issue be. Making the case against any sexual offender regulation is unpopular business, even among Northeastern and West Coast suburban liberal elites. These readers may shed tears for the poor, drug-addicted thieves (who do their business well out of sight of affluent suburbia) but they have no love for those evil pedophiles whom they fear haunt the local parks and schoolyards. Indeed, for most liberal legislators - those who fight overpunishment and stand up for the Fourth Amendment - sexual offender regulations are the prime site to establish tough-on-crime credentials. The Times and Post could follow suit; there's little percentage in highlighting these laws, except for an honest commitment to fairness and good government.

For whatever reasons, we have not seen fit to slam all sexual offenders (from rapists to petty criminals) with life sentences. To my view, that is good news. Plainly, all offenders are not the same. Some are much more dangerous than others. But the decision to mantiain some semblance of rationality in sentencing has not been easy. Although legislators don't quite have the gumption to permanently incarcerate an 18 year old high school student who has sex with his 15 year old girlfriend, or a man who is caught masturbating in his car, they're trying nonetheless to exclude them from entire communities and, indeed, states. It would make considerably more sense, I think, to figure out ways to prevent future misconduct while maintaining their productive contributions to society. That is a tough maneuver, but it requires politicians to step up to their fiduciary obligations to citizens, rather than pandering. Kudos to those newspapers who make such dangerous political moves more imaginable.

UPDATE: Corey Yung, over at Sex Crimes, fears that most media still haven't turned a critical eye to these policies. I really can't argue with him there.

Posted by Dan_Filler at 01:10 PM | Comments (1) | TrackBack

Shylock and Article 9 of the U.C.C. (with some thoughts on bankruptcy)

Shakespeare’s A Merchant of Venice (1598) is often misidentified as an anti-Semitic play about a contract. This is not technically correct, as the transaction at the heart of the drama seems to be a secured loan. (Albeit an anti-Semitic one.) Furthermore, contrary to Shakespeare's conclusion, I believe that the security agreement is most likely enforceable, at least under Article 9 of the Uniform Commercial Code, a point that I hope to make to my secured transactions class. Here is Shylock's description of the loan agreement between himself and Antonio, a Venetian merchant:

SHYLOCK: This kindness will I show; go with me to a notary; seal me there your single bond, and – in merry sport – if you repay me not on such a day, in such a place, such sum or sums as are expressed in the condition, let the forfeit be nominated for an equal pound Of your fair flesh, to be cut off and taken In what part of your body pleaseth me. (I.3.141-149)

It seems fairly clear from the passage that there is a debt. Antonio promises to pay "such sum or sums as are expressed in the condition." However, without a valid security interest Shylock has only a personal right of action against Antonio. Indeed, even if Antonio promises the pound of flesh, all that Shylock gets in the event of a failure to deliver the bloody bond is a right to money damages. Section 9-109, however, teaches us that Article 9 governs "a transaction, regardless of form, that creates a security interest in personal property . . . by contract." Such seems to be the case here. Indeed, Shylock casts the transaction in the form of a bond, ie a promise to deliver the pound of flesh, with a condition, ie payment of the debt, that defeats the bond, a classic pre-Code security arrangement, and the "pound of . . . fair flesh" falls under 9-102(a)(44)'s definition of "goods" ("all things that are moveable when a security interest attaches"), bringing it within the personal property requirement of 9-109.

The initial question is whether or not Shylock's security interest has attached to Antonio's flesh. Section 9-203 contains three conditions for attachment. First, Shylock must have given Antonio value, in this case the loan. 9-203(b)(1) Second, Antonio must have rights in the collateral. 9-203(b)(2) Note, that Article 9 leaves the definition of "rights in the collateral" undefined, but the case law indicates that less than full ownership is sufficient. Hence, even if others can claim some property right in Antonio's flesh -- e.g. a master or spouse -- Antonio can still hypothecate what residual rights he retains. The third condition under 9-203(b) is a bit more complicated. In Shylock's case it could be met in two ways. First, he could take possession of Antonio's flesh pursuant to 9-313. This is likely impossible without cutting out the "pound of . . . fair flesh" at the time of the loan, as Antionio cannot retain possession of the flesh as Shylock's agent. See 9-313 cmt. 3. Second, Shylock can satisfy 9-203(b)'s third requirement by having Antonio authenticate a record of the security agreement. This condition seems to satisfied by Shylock's insistence to Antonio that he "seal me there your single bond."

Once the security interest is attached, there are no other steps that Shylock must take in order for it to be enforceable against Antonio. See 9-203(a). The question is whether other provisions of law would make the security interest unenforceable. First, let us dispose of the argument made by Portia in the climatic scene of the play. Portia declares that Shylock's cannot enforce the interest in Antonio's flesh unless he can do so without the effusion of any blood, as the written contract between Shylock and Antonio contained no explicit provision allowing for the spilling of blood. This argument is clearly spurious. Section 1-205 of the code requires that "the express terms of an agreement and an applicable course of dealing or usage of the trade shall be construed wherever reasonable as consistent with each other." Hence, provided that Shylock generally cuts out Antonio's flesh with the effusion of blood in prior transactions or if the effusion of blood is standard in human-flesh security agreements in the trade, then Portia's argument fails. Furthermore, given that Article 9 itself provides elaborate rules governing foreclosure, the absence of explicit contractual provisions specifying all rights in foreclosure cannot standing alone defeat a creditor's right to repossess the collateral. Indeed, such a requirement would run flatly counter to section 1-102(a)'s statement that the underlying policy of the UCC is "to simplify, clarify, and modernize the law governing commercial transactions." In short, the stale formalism upon which Portia's argument rests has no place in the post-realist code of Llewellyn and Gilmore.

A more promising argument is to suggest that the security agreement cannot be enforced under section 1-203, which states that "Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement." Hacking out Antonio's flesh might violate such a duty. I suspect that it would depend on the jurisdiction in which one tried the case. As Judge Easterbrook, for example, has repeatedly stated the duty of good faith fills in gaps in the contract but should not be used to nullify its explicit terms. In this case, Antonio explicitly promised to deliver up his flesh, suggesting that in the 7th Circuit at least the appeal to 1-203 would be of little help. Of course, Antonio can always point to 1-103, which preserves "the principles of law and equity" so long as they are not displaced by the UCC to make some sort of an unconscionability argument or the like. As we have seen in class, however, 1-103 arguments tend to be the last hail-Mary attempts of regretful debtors to escape their just obligations and are seldom successful in the courts. It is also worth noting that Antonio, a merchant, as a very sophisticated party and he may be governed under 1-103 by "the law merchant," which is preserved in addition to principles of "law and equity."

Antonio might try to defeat Shylock by arguing that the flesh cannot be taken from him without a breach of the peace under 9-609(b)(2). The argument is problematic on a couple of fronts. Certainly, if Shylock tried to cut the flesh from a resisting Antonio it would likely be a breach of the peace. However, the Code defers to other state law in defining what constitutes a breach of the peace. For example, some particularly pro-creditor states might allow Shylock to take the flesh from a sleeping or anesthetized Antonio. Certainly, the policy rational behind 9-609(b)(2) is to prevent self-help repossession from degenerating into dangerous violence. Its purpose is not to allow the Debtor to retain possession of collateral to which a Creditor has a lawful right. Furthermore, even if there is no way of getting the flesh without a breach of the peace under 9-609(b)(2), this would only prevent Shylock from self-help repossession. He could always proceed against the collateral "pursuant to judicial process." 9-609(b)(1). Note, however, that in the absence of a Antonio's consent, Shylock cannot retain possession of the pound of flesh (see 9-620(b)), but must sell it at a sale that comports with 9-610's requirement of commercial reasonableness. However, Shylock may obtain such consent from Antonio through Antonio's silence, so long as Shylock sends to Antonio a record authenticated after default offering acceptance of the collateral in satisfaction of the debt to which Antonio does not respond within 20 days. See 9-620(c)(2). Shylock, of course, must return to Antonio any surplus from the sale of the flesh, and Antonio remains liable for any deficiency.

Of course, unless Shylock perfects the security interest, Antonio may be able to save himself from maiming by filing for bankruptcy. Under section 544(a) of the Bankruptcy Code (the so-called "Strong Arm Clause"), Antonio could avoid Shylock's unperfect security interest. Note, however, that in this case Shylock seems to contemplate perfection, as they are to "go . . . to a notary," presumably the public official who can accept financing statements under 9-501. Provided that Shylock filed a financing statement covering the flesh, then he should be protected from the strong arm clause by 9-317, which grants perfected security interests priority over the interest of a lien creditor. (Defined in 9-102(52)(C) to include a trustee in bankruptcy.) If there is some gap between the time when Shylock gave Antonio the money for the loan and the filing of the financing statement with the "notary," then Antonio can also attack the security interest as a voidable preference under section 547 of the Bankruptcy Code on the theory that it promoted Shylock from an unsecured to a secured claim holder on account of a pre-existing debt. Shylock, however, can probably defeat any such argument under 547(c)(1)'s exception for a "substantially contemporaneous exchange."

Despite the validity of Shylock's security interest in Antonio's flesh, however, he probably is not entitled to slice Antonio up. The reason for this is that in Act IV, Scene 1 of the play Antonio's friend Bassanio offers to pay off the debt in full, an offer that Shylock refuses. However, 9-623 the Antonio can redeem the collateral at any time prior to its final disposition under 9-610 provided that he "shall tender fufillment of all obligations secured by the collateral; and the reasonable expenses and attorney's fees of [Shylock]." 9-623(b)(1)-(2). Of course, 9-623 applies only to "[a] debtor, any secondary obligor, or any other secured party or lienholder," a class that does not include Bassanio. On the other hand, there is nothing to stop Bassanio from giving the money to Antonio, who can then pay Shylock. Shylock, unfortunately for him, has no right to refuse Antonio's offer of redemption.

Posted by oman at 12:53 PM | Comments (9) | TrackBack

Spam, Spam, and More Spam

According to CNN:

The number of "spam" messages has tripled since June and now accounts for as many as nine out of 10 e-mails sent worldwide, according to U.S. email security company Postini. . . .

"E-mail systems are overloaded or melting down trying to keep up with all the spam," said Dan Druker, a vice president at Postini.

His company has detected 7 billion spam e-mails worldwide in November compared to 2.5 billion in June. Spam in Britain has risen by 50 percent in the last two months alone, according to Internet security company SurfControl.

The United States, China and Poland are the top sources of spam, data from security firm Marshal suggests.

About 200 illegal gangs are behind 80 percent of unwanted e-mails, according to Spamhaus, a body that tracks the problem.

Experts blame the rise in spam on computer programs that hijack millions of home computers to send e-mails.

Posted by Daniel Solove at 10:27 AM | Comments (0) | TrackBack

Discount Caskets Online? Shop Costco!

I was feeling in a shopping sort of way this afternoon when I wandered over to Costco.com. There I discovered what others may have long known: the big box discount house sells caskets. What a lift for the spirits! The funeral business has always been notorious for its attractive business environment. Who wants to shop around for the best funeral value? And who wants to be seen as skimping on cheapo casket for a dead loved one? As a consequence, the industry hasn't been subject to widespread discounting. (But see this.) And now, with the rise of the funeral home chain, the marketplace is amazingly seeing an INCREASE in funeral prices. Yet this situation clearly creates opportunities for entrepreneurs willing to take on the taboo and sell their product based on price (rather than, say, Dignity.) Somehow, I never saw Costco as such a niche player. Clearly, I was naive!

This discovery has led me to ponder a number of questions.

Do people skimp more on the box when they're buying on the web, in the absence of sales pressure? Or do they buy fancier caskets because they're more affordable? And who exactly skips overnight delivery, preferring to get their casket via "standard shipping"? (Do some people prepare for the big day, sticking the casket in the garage until it becomes necessary?)

How many people join Costco for the sole purpose of a buying a casket? Maybe Costco doesn't even try to make money on this segment. Like discounted plasma TV's and cases of Bounty, perhaps it's just a loss leader, a way to drive business to the site.

"I came for the casket, but I stayed for digital videocamera." Or something like that.

Posted by Dan_Filler at 12:00 AM | Comments (2) | TrackBack

Professor Bainbridge Returns

Professor Stephen Bainbridge (law, UCLA) has returned to the blogosphere with a mini-empire of blogs. ProfessorBainbridge.com will serve as the main site. He now has three blogs:

Professor Bainbridge's Business Associations Blog

Professor Bainbridge's Journal

Professor Bainbridge on Wine

Posted by Daniel Solove at 05:43 PM | Comments (0) | TrackBack

The One Ring and Economic Duress

In my contracts class, I use the One Ring as a explanatory prop in several doctrinal areas, such as the availability of specific performance. It is convenient, then, that Tolkien's stories may be moving from one Red Book to another, as the dispute between Peter Jackson and New Line over the fantasy franchise's profits has just heated up. According to the director:

Wingnut Films has bought a lawsuit against New Line, which resulted from an audit we undertook on part of the income of The Fellowship of the Ring. Our attitude with the lawsuit has always been that since it's largely based on differences of opinion about certain accounting practices, we would like an independent body - whether it be a judge, a jury, or a mediator, to look at the issues and make an unbiased ruling. We are happy to accept whatever that ruling is. In our minds, it's not much more complex than that and that's exactly why film contracts include right-to-audit clauses. [DH Notes: What a Holmesian view of contract law!]

However, we have always said that we do not want to discuss The Hobbit [the long-anticipated prequel to the Lord of the Rings] with New Line until the lawsuit over New Line's accounting practices is resolved. This is simple common sense - you cannot be in a relationship with a film studio, making a complex, expensive movie and dealing with all the pressures and responsibilities that come with the job, while an unresolved lawsuit exists.

We have also said that we do not want to tie settlement of the lawsuit to making a film of The Hobbit . . .

[O]ur Manager Ken Kamins got a call from the co-president of New Line Cinema, Michael Lynne, who in essence told Ken that the way to settle the lawsuit was to get a commitment from us to make the Hobbit, because "that's how these things are done". Michael Lynne said we would stand to make much more money if we tied the lawsuit and the movie deal together and this may well be true, but it's still the worst reason in the world to agree to make a film.

Several years ago, Mark Ordesky [of New Line] told us that [the studio had] rights to make not just The Hobbit but a second "LOTR prequel", covering the events leading up to those depicted in LOTR. Since then, we've always assumed that we would be asked to make The Hobbit and possibly this second film, back to back, as we did the original movies . . .

However last week, Mark Ordesky called Ken and told him that New Line would no longer be requiring our services on the Hobbit and the LOTR 'prequel'. This was a courtesy call to let us know that the studio was now actively looking to hire another filmmaker for both projects.

Ordesky said that New Line has a limited time option on the film rights they have obtained from Saul Zaentz (this has never been conveyed to us before), and because we won't discuss making the movies until the lawsuit is resolved, the studio is going to have to hire another director.

There are some interesting legal issues arising out of this fact pattern. But one has to suspect that both parties here are calculating: Jackson that he stands to make more in the lawsuit that he would in a prequel (therefore, his decision to take issues off the table); New Line, that it is better to delay the lawsuit's settlement and accept the risk of a mildly less successful movie. The hypothetical I wonder about is whether Jackson could sign the settlement agreement and then assert a defense of economic duress, claiming that he had no choice but to settle to obtain the new movies (sort of like Austin v. Loral). The only problem: his (presumably less than rosy) financial circumstances would have been the fault of King Kong's disappointing earnings, not New Line's breach.

Posted by hoffman at 03:15 PM | Comments (0) | TrackBack

A Lawyer's Bad Morning, Part II

Some time ago, I posted part of the story of the lawyer who showed up to court and faced allegations that he was drunk. Here's the more of the sad story. [Update: The lawyer has taken responsibility for his conduct, as this article makes clear.]

Posted by hoffman at 02:50 PM | Comments (0) | TrackBack

Billy Bob Thornton and the Law

Okay, okay, I'm a big liar, this post has nothing to do with the law. Though Billy Bob Thornton really does factor into the post. And I'm pretty sure I'd have a First Amendment defense to any false advertising suits -- my immediate admission of lying arguably negates any misleading aspects of the title. And I don't know that any restriction on my misleading title could be sufficiently tailored toward a substantial governmental interest. (See, e.g., Greater New Orleans Broadcasting v. U.S. (citing Central Hudson Gas & Elec. Co. v. Pub. Svce. Commission)). Not to mention, doesn't this paragraph on the First Amendment bring the law into my post, thus making my title technically true??

ANYWAY ... the post REALLY is about winter holiday movies. What with the holiday season now upon us, I thought it important, nay, CRUCIAL, to pose and to ponder this pressing question: what makes for the best holiday movie double feature?

My nomination:
"It’s a Wonderful Life" + "Bad Santa"

When you think about it, both end on pretty much the same note, reflecting the fact that they're about pretty much the same thing. Sure, "It’s a Wonderful Life" ends with all of the townspeople gathered 'round the Bailey household, toasting George Bailey (Jimmy Stewart) and singing “Auld Lang Syne,” as George reads a written message sent to him from heaven by the angel Clarence. "Bad Santa" ends with a little kid in a t-shirt that says “S**t happens when you party naked,” reading a letter sent to him by Willie (Billy Bob Thornton), as Willie recovers from multiple bullet wounds.

But look past those minor surface differences … each ends with an important written message to the effect that it’s our friends who give our lives meaning. Bad Santa’s just a bit, well, rougher around the edges in expressing it.

See what I mean?:

“No man is a failure who has friends.” – Clarence the Angel, writing to George Bailey in “It’s a Wonderful Life”

“Dear Kid. I hope that you got my present and that there wasn’t too much blood on it, although there was blood on the present you gave me which didn’t keep me from enjoying it, so maybe the blood doesn’t matter so much I guess.” – Willie, writing to "the kid" in "Bad Santa"

In any event, I, like Billy Bob Thornton and Jimmy Stewart before me, wish you all much love and friendship in the coming months and years!!

Posted by Heidi_Kitrosser at 01:22 PM | Comments (0) | TrackBack

OJ Simpson's "If I Did It" Hits eBay

Not surprisingly, copies of OJ's newly suppressed book, If I Did It, are now available on eBay. As I write, the highest bid for a copy weighs in at $15,300. Meanwhile, the New York Times tells us that an attorney for Nicole Brown SImpson is demanding that eBay banish the book. The article also suggests that eBay has already been pulling the books from its listings. If it has, it's not doing a great job. There are six copies up right now, and at least one has been posted for well over a day.

I have no idea about the legal implications here. Does eBay have a legal duty to pull them? I suppose this might turn on how, and conceivably, under what contractual limits, the sellers obtained the book. If the sellers obtained the book by theft, and eBay knows or should know this, I suppose it might be criminally liable for "fencing" the volume. If the seller obtained the book under a confidentiality agreement, which he or she is violating, I'm not clear that eBay has any duties at all. And if Nicole's lawyers hope to suppress the book on the grounds that it is hurtful, or that OJ is an ass...that just seems like a loser of a legal argument. eBay could choose to pull If I Did It out of kindness or good taste, but I have to think that this book is only one of many items currently listed on eBay that could be excluded on these grounds.

The likely reality is that copies of this book are going to circulate, OJ won't benefit from these sales (beyond his generous advance), and this trash will fetch top dollar for a relatively short time. For the hard-core OJ Simpson fan, it's probably best to wait out the frenzy. If we're lucky, OJ's book will be selling on eBay's Half.com before you know it.

Posted by Dan_Filler at 12:00 AM | Comments (4) | TrackBack

Best Case for Moral Rights Ever: Monopoly Fantasy Edition

"Moral rights" permit artists to veto certain uses of their work when they don't approve of the use. For example, under the Visual Artists Rights Act, an artist has a right "to prevent any intentional distortion, mutilation, or other modification of [their] work which would be prejudicial to his or her honor or reputation." Some advocate expanding that right from actual works to copyrighted materials generally (giving, for instance, a right to an artist to veto a modification or use of their work even if they don't own the copyright anymore).

I'm usually skeptical of that kind of rights expansion, but this video is giving me second thoughts. It's a passionate celebration of a bank merger, ala U2's classic song "One." As NPR reports, "The song is so painfully bad that it has become an Internet phenomenon." These lyrics are extraordinary:

Refrain:
One bank, One Card,
One name that's known all over the world.
One heart, filled with spirit
We feel it--Share it!
One bank, every day,
Bringing higher standards,
Higher standards---wooo-oooo!

Well, so far my experience of Bank of America's "higher standards" is frustration at being unable to pay my MBNA credit card online anymore. But have we ever heard a more lyrical explication of Borkian antitrust policy? "One bank, one card, one monop'ly--by no competition law marred!"

Posted by Frank_Pasquale at 03:58 PM | Comments (5) | TrackBack

Posner, Pragmatism, and Precedent

Over at the Chicago Law Faculty Blog, Brian Leiter has a post discussing Judge Richard Posner's legal pragmatism. He writes:

First: Do judges actually have any obligation or duty to abide by precedents or statutes or constitutions on the pragmatic view? Or do they only have some instrumental reasons to pay some attention to these materials? The pragmatist judge, according to Posner, is “unchecked by any felt duty to secure consistency oin principle” with past official actions, i.e., court decisions and legislative enactments (241). The pragmatist judge, he says, only decides “in accordance with precedent” when that is “the best method for producing the best results for the future.” (241). Judge Posner adds that the pragmatist judge is not “uninterested” in statutes and precedents, but that is because he “regards precedent, statutes, and constitutional text both as sources of potentially valuable information about the likely best result in the present case and as signposts that he must be careful not to obliterate or obscure gratuitously, because people may be relying upon them” (242). Indeed, he refers to these sources of law as "'authorities'" (in quotation marks) and as “merely...sources of information and as limited constraints on [the judge’s] freedom of decision.” None of this makes it sound as though there is any serious obligation for the pragmatist to abide by precedent or statute.

The pragmatic theory of precedent is actually much stronger than the above characterization. There can be strong instrumental reasons for rigidly adhering to precedent. First, establishing a firm tradition of adherence to precedent promotes consistency and serves as a limit on judicial power. Second, disrespect for precedent might undermine the political capital of the judiciary and may lead to a backlash by other branches or the public, thus undermining the judiciary's power in the future. Third, departing from precedent gradually undermines the function of adherence to precedent, which helps establish the legitimacy of judicial decisions. Undermining this source of legitimacy renders impotent one of the primary sources of judicial power.

True, under a pragmatic theory, judges have instrumental reasons for adhering to precedent but don't have an "obligation" to do so. These instrumental reasons may sound less absolutist than a more categorical command to obey precedent, but these reasons can be just as potent and powerful in practice.

Indeed, it is not at all clear that non-pragmatist judges are more likely to respect precedent. Non-pragmatist judges who proclaim their strict duty to precedent can readily cheat and pretend to follow precedent while cleverly manipulating it to get the results they want. A non-pragmatist judge may adopt a rather loose or creative interpretive stance toward prior caselaw or statutes, allowing her to claim adherence to precedent while at the same time taking the law in a new direction. The non-pragmatist judge will claim that this new direction is consistent with prior cases based on interpretive reasons. In contrast, the pragmatist judge might more openly acknowledge the departure from precedent and justify it with instrumental reasons for the departure. But the fact that the pragmatist judge might describe the departure in a different manner does not mean that the pragmatist judge is more likely to depart from precedent. In fact, if a pragmatist judge is committed to honestly acknowledging departures from precedent, then this could make the judge more reluctant to depart than the non-pragmatist judge who believes she can cloak her departures with skillful rhetoric.

In other words, I don't see why pragmatist judges are likely to be less respectful of precedent or more likely to depart from it than non-pragmatist judges.

There's also a podcast of Leiter's discussion with Posner, which I haven't had the opportunity to listen to.

Posted by Daniel Solove at 03:24 PM | Comments (3) | TrackBack

Barrett v. Rosenthal: Blogger Immunity for Defamatory Comments

Recently, in Barrett v. Rosenthal, the California Supreme Court held, similar to most courts addressing the issue, that bloggers are immune from being sued for "distributor" liability under defamation law. Under defamation law, the original speaker of a defamatory statement (a false statement that harms a person's reputation) is liable. A "distributor," one who further disseminates a falsehood spoken by another and who "knows or should have known" about the defamatory nature of a statement, is also liable. A federal law, 47 U.S.C. § 230, however, provides: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Most courts have interpreted § 230 to immunize the operators of websites or blogs against distributor liability for comments posted by others.

On the surface, Barrett doesn't appear to be all that exceptional a case. Yet it is noteworthy because the California Supreme Court is reversing a rather notable opinion by the California Court of Appeals, which had taken a different interpretation of § 230 that didn't provide such a broad immunity.

Most courts are interpreting § 230 very broadly. The plain meaning of § 230 is far from clear, but courts are reading it as a broad federal abrogation of a significant dimension of state defamation law. The court in Barrett stated that if its interpretation was at odds with what Congress wanted, Congress could always clarify the law. But this argument can be made for any interpretation. Perhaps courts should err on the side of narrowly interpreting federal laws that could preempt state law.

Moreover, I find § 230 immunity to be somewhat of a problem because it creates a rather inconsistent body of law. For example, consider the following scenarios:

1. You tell me a libel about X and I then write about it on my blog.

In this situation, § 230 would not apply. I'm the publisher, and I would be liable for defamation assuming other limitations on defamation liability don't apply.

2. You email me a libel about X and I then post your email on my blog.

This situation is unresolved. Some courts say I'm not the publisher and am immune. For example, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), the court stated that a person who forwarded an email by another to a newsgroup was immune under § 230. Barrett involved a somewhat similar situation, and the court explicitly dodged the question of whether the defendant could be considered the "publisher" and be liable (the court only held that § 230 eliminated distributor liability). I find the Batzel holding to be quite dubious. Is there any difference between this scenario and #1 besides the fact that #1 was said orally and #2 was by email?

3. You post a comment to my post with a libel about X. I've set up my blog so that it requires my approval before any comments are posted. I get an email notification of your comment; I approve it; and your comment gets posted.

What would courts do here? I bet most will say that I'm immune, even though I deliberately allowed your comment to be posted. But is this much different than #2?

4. You post a comment to my blog with a libel about X. I've set up my blog so it allows comments to be automatically posted without my prior approval. X emails me that it is defamatory and asks me to take it down. I refuse.

In this scenario, most courts would hold that I'm immune. Is this really that much different than #3? Once I'm emailed about it, aren't I in virtually the same position as I am in #3?

For some other interesting discussions of the Barrett decision, see the following posts by Eugene Volokh, Eric Goldman, and Michelle Malkin.

Posted by Daniel Solove at 12:51 PM | Comments (2) | TrackBack

Murumba & Sebok on "Brooklyn Style Pizza"

Sam Murumba and & Tony Sebok of Brooklyn Law School have a nice post up at Findlaw entitled:

Should the Law Regulate Whether and When Corporations Use Locality-Based Food Designations Such as "Brooklyn Style Pizza"?
The Significance of Appellations of Origin

The post relates to issues raised in recent Concurring Opinion posts by Kaimi Wenger and Christine Farley. Kaimi considered why New Yorkers would ever opt for a Domino's "Brooklyn pizza" over a real NYC pizza. And Christine raised the possibility of regulating locality designations in the context of African artisans.

hat tip to Jason Mazzone of